Constitution – Page 64 – Sheila Kennedy

More on Bork

In a recent post, I made the case that Romney’s choice of Robert Bork as his legal/courts advisor should disqualify him from the Presidency.

I subsequently ran across a more in-depth discussion of Bork, borrowing liberally from his own writings.

This extended essay is well worth reading in its entirety, but let me whet your appetite with my “favorite” Bork quote: “No activity that society thinks immoral is victimless. Knowledge that an activity is taking place is a harm to those who find it profoundly immoral.”

The U.S. Constitution was based upon the Enlightenment belief in personal autonomy; the libertarian principle that humans have the right to pursue their own ends–the right to “do their own thing”–so long as they respect the equal right of others and do not cause harm to the person or property of a non-consenting other.

This is sometimes called “the harm principle,” and it limits the zone of freedom individuals enjoy. If something I am doing harms you, the government is justified in intervening. So, for example, free people can choose to smoke, even though it may be bad for them, but when substantial scientific evidence confirms the harm done to others by passive smoke, government can constitutionally prohibit smoking in public places. People of good will can and do debate whether a particular activity is harmful, of course, but in our system, if your personal behaviors don’t affect anyone else, the government is supposed to butt out.

In Bork’s world, however, simple awareness that someone is doing something of which you disapprove constitutes a harm.

In Bork’s world, if “society” believes that a behavior–contraceptive use, sex between unmarried adults, homosexual sex, masturbation, smoking, whatever–is immoral, that disapproval constitutes a harm sufficient to justify outlawing that activity.

Freedom, in Bork’s cramped vision of that word, is freedom to do the “right” thing–as defined by Robert Bork and his ilk. It is hard to imagine a more unAmerican understanding of our legal system.

Bork actually makes Jay Sekelow–Pat Robertson’s lawyer, and the other Romney legal advisor–look moderate.

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An Interesting Exchange

Like many other civil libertarians, I have been deeply disappointed by President Obama’s willingness to continue many of the security practices of the Bush Administration. It is especially galling because–unlike Bush–Obama quite obviously knows what the Constitution requires, and has nevertheless been willing to engage in surveillance and other practices which most civil libertarians believe cross the line.President Obama gets blamed for many things he clearly doesn’t do, but in this area, disappointment in his performance is justifiable.

Because I have been pretty critical of Administration policy in this area, I was interested in the following observation posted on the Law and Courts Listserv, a scholarly exchange to which I subscribe.

In response to a post suggesting an equivalency between the policies of the two administrations, Professor Alexander wrote:

“Eugene says the Bush antiterrorism policy “is quite similar to the Obama Administration’s antiterrorism policy.”

I like many others have been deeply disappointed in aspects of the Obama Administration’s policy on detainees and counterterrorism, as well as the efforts by Congress and judges on the D.C. Circuit to force the administration to continue Bush policies. But Eugene’s statement is simply not the case. Contrary to the Bush administration:

* Obama has withdrawn from combat operations in Iraq and plans to

withdraw from Afghanistan in 2014;

* Obama found and killed bin Laden;

* on his first day in office Obama

1) revoked all the Bush administration OLC memos, executive

orders, and directives on interrogations;

2) ordered an end to torture, and cruel, inhumane, or

degrading treatment, and compliance with the Army field manual

(regardless of whether one thinks that is the end-all of good

interrogation practice);

3) ordered all CIA prisons worldwide to be closed;

4) ordered the closure of Guantanamo — it is decidedly not

his fault that the facility remains open;

5) ordered that the Geneva Conventions are the “minimum

baseline” for treatment of any individuals detained in “any armed conflict”;

6) ordered that the International Red Cross be given access

to all detainees;

* Obama ordered the trial in Art III court of KSM and the other

captured 9/11 plotters — again, not his fault that they must be tried

in military commissions;

* in March 2011 Obama issued an executive order directing that the

government comply with Art 75 of Additional Protocol I to the Geneva

Conventions “out of a sense of legal obligation” — thereby

acknowledging the binding nature of international law in connection with

the detention of suspected terrorists — and urged Congress to ratify

Additional Protocol II;

* the Obama administration revamped the military commission

procedures so that — although not as good as Art III courts — they are

much improved over the Bush versions;

* in particular, evidence obtained by cruel, inhuman, or degrading

treatment is barred;

* it appears that DOJ and DOD are pursuing and concluding military

commission plea bargains so that evidence in MC trials (such as the KSM

trial) will conform to Art III standards;

* the President and Attorney General have repeatedly declared that

waterboarding is torture and is illegal (in stark contrast to Bush,

Cheney, and Yoo, who have gleefully affirmed torture as good policy); and

* no prisoners have been transferred to Guantanamo and the

administration has repeatedly stated that none will be.”

Clearly, Professor Alexander has been following these matters far more closely than I have.

Now, I’ll be the first to acknowledge that being better than the Bush Administration on civil liberties is hardly a “get out of jail free” card. But this list did make me feel better.

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Law and Order

Well, I certainly feel safer now that the Supreme Court has handed down its decision in Florence v. Burlington.

The issue in this case was whether jail officials have the right to strip-search anyone and everyone who is arrested, no matter what the charge and no matter the presence or lack of probable cause to believe the “strip-ee” possesses contraband or a weapon. The plaintiff in the case had been arrested for non-payment of a traffic ticket; it later turned out that he had paid his ticket, but due to a computer error, the payment wasn’t documented. (Governor Daniels can surely relate–those pesky computer errors have been cropping up with annoying frequency in his administration lately!)

According to the case syllabus,

“petitioner, like other arriving detainees, had to remove his clothing while an officer looked for body markings, wounds, and contraband; had an officer look at his ears, nose, mouth, hair, scalp, fingers, hands, arm- pits, and other body openings; had a mandatory shower; and had his clothes examined. Petitioner claims that he was also required to lift his genitals, turn around, and cough while squatting.”

The Court ruled 5-4 that authorities could lawfully require a person accused only of an unpaid traffic citation to submit to this process.

You can bet I won’t be jaywalking any time soon!

As Justice Breyer wrote in his dissent,

“In my view, such a search of an individual arrested for a minor offense that does not involve drugs or violence—say a traffic offense, a regulatory offense, an essentially civil matter, or any other such misdemeanor—is an “unreasonable search” forbidden by the Fourth Amendment, unless prison authorities have reasonable suspicion to believe that the individual possesses drugs or other contraband. And I dissent from the Court’s contrary determination.”

The majority placed a lot of emphasis on–and expressed sympathy for–the difficulties involved in running a penal institution. As a result, the Justices were unwilling to require those in charge to make initial distinctions–that is, to determine the presence or absence of probable cause sufficient to justify a bodily search of this magnitude.

But that is precisely what the 4th Amendment requires of government.

The prohibition against unreasonable searches doesn’t include a caveat for inconvenience or difficulty. And really, how threatening is a guy who’s been hauled in for an unpaid traffic ticket? If jail authorities can’t distinguish between an arrest for a traffic violation and one for theft or armed robbery, we have a lot bigger problem than strip searches.

A quick look at the breakdown of the Justices in the majority and minority certainly confirms the old saying that elections have consequences. We all need to “remember in November.”

And meanwhile, whatever you do, don’t cross against the light!

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Speaking of “Agendas”

A friend sent me a copy of this year’s American Family Action Pac political questionnaire. Rather than characterize it, I decided to let it speak for itself. (The odd numbering and format are original.)

Indiana Family Action PAC 2012 Questionnaire for State Candidates

Please circle the response that most accurately reflects your position on the following issues.

(SF=Strongly Favor; F-Favor; U=Undecided; O=Oppose; SO=Strongly Oppose; Y=Yes; N=No)

1. Education – Protect and expand parental choice options provided in current law to allow all parents

the opportunity to receive a voucher to send their children to any public, private, religious or home

school of their choice. SF F U O SO

Education – Allow parents dedicated to their children’s education to home-school their children

without imposing additional state regulations, other than that which is already required in state law. SF F U O SO

3. Education – Redefine “bullying” so that students who express opposition to the public promotion of

homosexuality in public schools will be guilty of “bullying” if they offend students who have taken

on a homosexual identity. SF F U O SO

4.Academic Liberty – The teaching of evolution is currently an educational requirement for teachers in

Indiana public schools. Protect Indiana teachers within state law so that they can also discuss the

problems and weaknesses of evolutionary theory. SF F U O SO

5.Business – Some Indiana cities have increased regulations on businesses by adding “sexual orientation” and

“gender identity” to the list of protected classes that get special rights. State law does not require businesses

to treat these groups as protected classes. Require all levels of government to recognize the list

of specially protected classes within state law in order to give businesses uniform regulations. SF F U O SO

6. Faith – Jesus Christ is my personal Lord and Savior. I believe the God of the Bible is sovereign

over all of life, including public policy, and I will use biblical principles to guide how I vote. Y N

7. Homosexual agenda – Change state discrimination law to protect an employee’s sexual

preferences in the same way that race, religion, age, gender and ancestry are protected. SF F U O SO

8. Marriage – Increase the time a married couple with minor children must wait for a divorce

(current law is 60 days) in order to give them a longer opportunity to work toward reconciliation. SF F U O SO

9. Marriage – Amend the Indiana Constitution as follows: “Only a marriage between one (1) man

and one (1) woman shall be valid or recognized as a marriage in Indiana. A legal status identical or

substantially similar to that of marriage for unmarried individuals shall not be valid or recognized.” SF F U O SO

10. Abortion – Prohibit abortion by law except when the life of the mother is in danger. SF F U O SO

11. Abortion – As the medical abortion field explodes (abortion pills like RU486), make Indiana law apply

the same standards for dispensing abortion pills as it does for surgical abortions (i.e., define it in the law,

require licensing and regulatory standards, require key health and safety standards, and require

informed consent/patient information standards). . SF F U O SO

12. Taxes – Increase state taxes in order to provide more services. SF F U O SO

13. Taxes – Discontinue all direct and indirect state support of the Kinsey Institute

(controversial “sex research” organization in Bloomington, IN) SF F U O SO

14. Gambling – Prohibit Casinos in Indiana. SF F U O SO

15. Sex industry – Require strip clubs to close at midnight and make them ineligible for

Liquor licenses. Require dancers to remain at least 6 feet away from customers at all times. SF F U O S

Anyone who “favors” numbers 5, 7 and 12 will clearly be opposed; the language of the others–especially #6–is simply jaw-dropping. These folks are the ones with an “agenda”– and it is anti-science, anti-gay, anti-sex and deeply, profoundly un-American.

When the American Family folks endorse someone, remember that these are the positions that candidate has promised to support.

As another friend put it–so many Christians, so few lions….

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A Widespread Misunderstanding

A recent comment posted to this blog demonstrates a widespread–and pernicious–misunderstanding of the role of the U.S. Constitution. The commenter demanded to know where there was any reference to healthcare in the constitution.

The answer, of course, is that no such reference exists–just as there’s no reference to, say, smoking. Or marriage. Or the right to drive a car. Or the internet.

The constitution does not grant us rights. It limits the government’s right to infringe on those rights. The founders believed that we have certain “inalienable” rights by virtue of being human (hence “human rights”). Some believed those rights were “endowed by the Creator.” But Creator or no, those human rights preceded governments and their laws; the Bill of Rights was intended to constrain government from ignoring or invading them.

The bottom line is that government can pass laws and create programs that the legislature believes will advance the general welfare, so long as those laws and programs do not run afoul of the limits imposed by the document itself, or by the Bill of Rights. We are all free to disagree about the wisdom of government’s policy choices; we are equally free to debate whether, in close cases, government has crossed the lines established by the constitution.

But when we look to the language of our constituent documents for permission–when we view government as the source of our rights–we betray a fundamental misconception of the role of government and law in these United States.

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