Compare and Contrast

Set aside any difference in the merits of the Constitutional deviations alleged of the Bush Administration and soon to be signed by the Obama Administration. The latter questioned the applicability of habeas corpus to enemy irregular insurrectionists (these being non-citizens, captured in locations outside and remote from the government's sovereign power, while operating against US troops and civilians of various nationalities). The latter question a plain language reading of "State" that has prevailed in common usage for more than two centuries.

Focus on their effects. Bush's Constitutional "deviations" operated against a dangerous and novel enemy. The Democrat's operates to increase their political power in the House (the Utah seat being ephemeral), and sets precedent for further increases of their power in the Senate, and rewards a key constituency.

Democrats argue the correction of political inequality overrides the plain language of the Constitution. But this negates the premise and strategy of that Constitution. If the meanings of terms like "justice" were obvious, our Constitution wouldn't require all these checks and balances. The Founders rejected simple majority rule for a complex of divided powers, and so denied the reliability of any understanding of "justice" prevailing in any particular election.

This focus on procedure is not new. No Constitutional inconsistency was egregious as slavery. Our forefathers still acted as if justice was best served by reforming that monstrosity with nice attention to the Constitutional powers of the Executive and proper procedure for amendment.

Maybe Bush was wrong about habeas corpus for al-Qaeda, but if so he wasn't contradicting the fundamental nature of our governing charter.

The Constitution does not establish equality, or seek to advance it. It presumes, rather than creates, its citizens' equality and individual rights. "Progressive" in its improvement over prior governments, it does not seek to create some quality or quantity that would not exist without it. While it imagines more perfect recognitions of liberty and equality, and is perhaps "progressive" in its inspiration, it leaves these improvements to a political process governed by its procedures.

The procedural protections of the Constitution have been eroded by the recognition of unstated purposes like "privacy rights", the elevation of equality among its purposes, and increasingly contemporary understandings of terms like "church" and "arms". I think we're now seeing that these procedures cannot be trumped by its unstated but implied purposes without installing the majority rule it explicitly rejected. And that majority will rule to further secure that rule.