A Stitch in Haste

''Taking a bribe is, obviously, no part of the legislative process or function; it is not a legislative act. It is not, by any conceivable interpretation, an act performed as a part of or even incidental to the role of a legislator..."
--United States v. Brewster, 408 U.S. 501 (1972)

I know I'm late to blog about the William Jefferson constitutional "crisis," but you knew that a textualist like me simply could not remain silent on this idiocy:

They shall in all Cases, except Treason, Felony and Breach of the Peace, be privileged from Arrest during their Attendance at the Session of their respective Houses, and in going to and returning from the same; and for any Speech or Debate in either House, they shall not be questioned in any other Place.

The key word in the so-called "Speech and Debate Clause" is of course "Arrest." Representative Jefferson was not arrested. End of discussion. (If you simply must have more, then also keep in mind that bribery is a felony, which is expressly excluded under the Clause. Two strikes and you're out.)

How can anyone actually read the plain text of the Speech and Debate Clause and conclude that there is any issue, of any kind, in what transpired in "freezergate"? What possible basis is there for calling this incident — as many are — an unconstitutional violation of "separation of powers"?

The following blather from OpinionJournal is fairly representative of this view, held by large Congressional factions from both parties:

With the separation of powers, the Founders created a system with inevitable tension between Congress and the executive.
...
[T]he Speech and Debate Clause ... arguably includes papers and other material in Member offices that are related to legislating.
...
If [Justice Department officials] really believe Mr. Jefferson is running a criminal enterprise out of his Capitol Hill office, they could always negotiate the parameters of such a search with House leaders.
...
[J]udicial warrants can never trump core Constitutional powers... This willingness of modern liberalism to confer vast new authority on the judiciary is itself a violation of the separation of powers.

And so on. Invoke every possible theory except the easiest and most obvious one: sticking to what the Constitution actually and unambiguously says.

Again, this utter nonsense is being spewed ad nauseum by members of Congress on both sides of the aisle. And I do not mean to short-change the Democrats of the smackdown that they too so desperately deserve.

But let's focus on the Republicans in Congress and their apologists like the OpinionJournal editors. These folks are the exact same people who will scream from the rooftops that "there is no right to privacy in the Constitution" (a patently false assertion, incidentally). Neither, they insist, do the words "abortion" or "same-sex marriage" appear anywhere in the text. These same conservatives, who have so successfully purged libertarianism from the Republican Party (not to mention fiscal restraint), who allegedly praise their alleged "strict constructionists" like Antonin Scalia, suddenly treat Article I (not to mention Article II) like Silly Putty to be twisted, pulled and knotted in whatever bizarre way gets them to where they want to be?

What miserable, loathsome hypocrites.

Well, guess what, all you supposed "strict constructionists": The term "separation of powers" appears nowhere in the Constitution. Where is your strict constructionist god now? By what sick reasoning do you elevate a constitutional concept above constitutional text?

Neither is "separation of powers" really a prime concept underlying the intended goal of the Constitution in the first place. It is a mere corollary. The prime directive of the Constitution was not "separation of powers" but rather limitation of powers. The former was intended merely as a means to achieve the latter.

Petty little squabbles like the Jefferson search are not major constitutional "crises." They are, well, petty little squabbles, and in this case one that any high school civics student could figure out with just a casual glance at the Speech and Debate Clause.

But I suppose that any faux crisis that can help Congress and the Executive deflect from the real crises we face — constitutional, fiscal, military, cultural — will be elevated in just this manner. Make no mistake about it: Congress is not indignant about this incident — they are elated. It's just what they needed to burn up a few news cycles — which is increasingly all they care about.