ALAN CHOATE - Daily Herald | Posted: Tuesday, March 21, 2006 11:00 pm
U.S. Sen. Orrin Hatch's talk Tuesday at Utah Valley State College was billed as a lecture on how Congress works, but he spent most of his time slamming "activist" judges and promoting a measure aimed at banning the desecration of the American flag.
At times his language was humorous -- he talked of "Sith judges on the Dark Side wielding their gavels like sabers" -- but he was also stern, warning that an unchecked judiciary could usurp the powers of other branches of government and spell doom for liberty.
His concern about the federal government's balance of powers doesn't extend to President George Bush's warrantless domestic surveillance program, though, which he said is constitutionally sound and necessary to fight terrorism.
Hatch, R-Utah, has long championed a constitutional amendment that would give Congress the ability to prohibit flag desecration. He took up the cause after the U.S. Supreme Court ruled that state and federal laws banning such desecration -- for example, setting a flag on fire to protest U.S. policies -- are an unconstitutional limit on free speech.
"The Constitution governs the Supreme Court, not the other way around," Hatch said. "The Supreme Court does not have the last word. The people do.
"I would like to restore the Constitution to what it was."
The proposal has passed the U.S. House of Representatives six times, he said, and in 2000 fell just four votes short in the Senate. The amendment -- his answer to the actions of "five unelected judges" on the Supreme Court -- is supposed to get another hearing in June.
"Judicial activism represents a radical departure from the way we govern ourselves in this country," Hatch said. "If it continues, it means the Constitution won't be worth the paper it's written on."
There are some who look at Bush's domestic surveillance program as a radical departure from existing law and the Constitution. Sen. Russell Feingold, D-Wis., introduced a measure March 13 to censure, or reprimand, the president, telling ABC's "This Week" that the program is "right in the strike zone of the concept of high crimes and misdemeanors."
His critics -- which have also included Republicans -- say that when Bush has authorized wiretaps on people in the United States without obtaining court permission, he violated the Foreign Intelligence Surveillance Act as well as protections enshrined in the Fourth Amendment to the Constitution.
Hatch, however, said Bush is not usurping power into the executive branch -- indeed, he said it would be wrong for Congress to limit the surveillance program.
"He has an obligation as the executive ... to protect our borders from terrorism and to protect our people from terrorism," he said.
"It would be unconstitutional for the Congress to say, 'You have to go through the FISA court.' We could pass a law that says, 'We want you to go through the FISA court,' and I think the president would probably try to live with that. The problem is, you cannot do what they've been doing to protect us through the current FISA statute."
Hatch is a member of a group of lawmakers tasked with providing some oversight to the surveillance program now that it's been made public.
"I can tell you personally, having seen what I've seen ... what they're doing is truly remarkable and truly critical to protecting our country," he said.
This story appeared in The Daily Herald on page D1.