Tag Archives: rule of law

Disorderly Law

When I read about City-County Councilor Joe Simpson’s arrest last week for “disorderly conduct,” I immediately thought about an incident several years ago involving the then-Legal Director of Indiana’s ACLU.

He had been on his front porch when police descended on the house next door, and he took issue with aspects of their behavior which he believed violated the Constitution. He never left his porch, but he did enter into a verbal exchange with the police, who responded by arresting him for disorderly conduct. Being a lawyer–and an ACLU lawyer to boot–he sued for false arrest. For years thereafter, he liked to say that the City provided the downpayment for his new house.

I don’t know the details of the altercation between Joe Simpson and the police–although I do know that the parallels being drawn between his arrest and past legal problems of other Councilors are ridiculous: surely we can draw a distinction between mouthing off to the police and taking bribes. That said, perhaps his arrest was justified, perhaps not.

My problem is with laws that lack specificity. Laws against “disorderly” conduct and “loitering” are widely recognized as invitations to official abuse. Police are notorious for using these catch-alls to arrest people whose “crime” has been to challenge their authority. As I tell my students, the rule of law requires that laws be written with sufficient specificity and clarity to alert citizens to the sort of behavior that is being proscribed.

It is manifestly unfair to legislate against vague categories of behavior, without defining the elements of that behavior. If the legislature passed a measure outlawing “irresponsible” driving, for example, such a law would fail to provide any meaningful direction to drivers and would vest far too much discretion in traffic police. Instead, we spell out the behaviors we want to prohibit: speeding, texting while driving, failing to wear a seat belt, etc. Policymakers and citizens can agree or disagree about the propriety of those particular prohibitions, but we all know them when we see them.

There is no such clarity with laws against loitering or disorderly conduct.

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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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Deconstructing “Special Rights”

I heard someone make the claim again yesterday: gays want “special rights.”

So let me understand this argument:  If government respects the civil rights of Christians—and if Human Rights agencies protect those Christians from being picked on because of their beliefs—that’s simply government protecting equal rights.

But if government treats LGBT folks just like it treats everyone else—if it empowers those same Human Rights agencies to protect gay folks from being picked on because of their sexual orientation—that’s “special rights.”

When laws protect Christians, that isn’t a violation of the religious liberty of Jews, Muslims or atheists—it is a simple recognition that all religious people are entitled to hold their beliefs freely, without fear of discrimination. But if laws protect gays and lesbians, that’s an impermissible endorsement of the “gay lifestyle” and a violation of the religious liberty of those Christians who condemn homosexuality.

Got it.

I routinely encounter people who hold these logically incompatible beliefs, and to be honest, I’m getting pissed off. One of these days, I’m going to get in the face of one of these “Christian Nation” folks and demand to know just how they manage to twist the definition of “liberty” to mean their  right to impose their beliefs on those who don’t share them.

We’ve had the “special rights” accusation—lame as it is—for quite some time. But the charge that requiring businesses to treat people fairly violates “religious liberty” is a relatively new wrinkle on that argument—and it is driving me up the wall.

I posted recently about a hearing at which the South Bend, Indiana, Common Council was considering the addition of sexual orientation and gender identity to the categories covered by the city’s Human Rights ordinance. The measure passed handily, but not before a number of people asserted that forcing them to hire or retain qualified GLBT workers, or rent to same-sex couples, would violate their religious freedom.

Very similar claims were made when the Obama Administration ruled that employer-provided health insurance had to cover birth control for female employees who wanted it.

The argument seems to be that “religious freedom” means government can never interfere with me if I am acting on the basis of a genuine religious belief. That, needless to say, is not and never has been the law—I may sincerely believe that I should sacrifice my first born, or deny my child medical treatment, or smoke peyote during a religious ceremony, but the law doesn’t allow me to do any of those things, or hundreds of others, merely because I claim a genuine belief that God wants me to.

One reason that isn’t the law should be fairly obvious, at least to rational people. How on earth would we know that an employer was denying women workers birth control because he believed its use to be sinful, and not just because he wanted to save a few bucks? How would we know whether a landlord’s refusal to rent an apartment to a gay single or a same-sex couple was motivated by theology rather than by garden-variety homophobia?

This is the same problem prosecutors now face in the Trayvon Martin shooting, under the ridiculous “Stand Your Ground” law. Self-defense has always been a defense to a charge of murder—but only as part of a trial, after an initial arrest. Stand Your Ground laws are self-defense on steroids; they allow anyone to make a subjective claim that the government must initially treat as objectively true. Such a practice is simply contrary to the rule of law.

Religious liberty means that each of us has the right to believe what we wish, to follow the dictates of our consciences and theologies, and to observe the tenets of our faiths so long as we do not thereby infringe the equal rights of others or violate laws of general application (i.e., we can’t “kill a commie for Christ” as the 50s joke went). Religious liberty is not a “get out of jail free” card allowing us to deny an equal right to liberty to people we don’t like.

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Wrong is Wrong

Since the election of Barack Obama, the GOP–aka “the party of no”–has shown impressive discipline, putting party orthodoxy ahead of both the common good and, frequently, sanity. The Democrats, on the other hand, have happily confirmed Will Rogers’ great line: “I’m not a member of any organized political party; I’m a Democrat.” The left wing of the party has pretty constantly criticized the President for not doing more, not doing it more quickly, and not doing what they wanted.

I’ve considered much of this criticism unfair–often it has been the result of not understanding the constraints imposed by Separation of Powers, or the magnitude of the economic threat he inherited. Other complaints have had more merit–contrary to Republican rhetoric, for example, Obama has often seemed too willing to compromise, too reluctant to play hard-ball. But by far the most serious criticism has been his acceptance of Bush-era infringements on civil liberties.

This is a man who taught Constitutional law, a man who stood up for the rule of law as a Senator and who said all the right things as a candidate. It was a relief, after 8 years of a profoundly lawless administration, to cast a vote for someone who could be expected to respect Constitutional limits. That expectation has proved illusory, and Obama’s embrace of Bush-era surveillance measures has been painfully disappointing.

The recent announcement that the President would not veto the current Defense bill , however, is worse. While much of the bill is uncontroversial,  its counterterrorism section states that the entire world, including American soil, is a battlefield in the war on terror, and that the U.S. military thus has the authority to arrest and indefinitely detain anyone, even citizens, suspected of aiding terrorists.

I can’t think of anything more profoundly unAmerican.

It’s bad enough that large numbers of Congressmen and Senators support this assault on the Constitution and the rule of law. For Obama–who clearly knows better–to sign it is simply inexcusable.  Laura Murphy, the longtime head of the ACLU’s Washington office, said it best:

“If President Obama signs this bill, it will damage both his legacy and American’s reputation for upholding the rule of law. The last time Congress passed indefinite detention legislation was during the McCarthy era and President Truman had the courage to veto that bill. We hope that the president will consider the long view of history before codifying indefinite detention without charge or trial.”

In ordinary times, when we had two responsible political parties, the loyal opposition would provide a corrective to Executive Branch over-reaching. The saddest thing about the farce that is our current political environment is that no such counterbalance exists; indeed, the major movers of this appalling provision include Lindsay Graham and the ever-angrier John McCain. The same GOP that contests the power of the White House to reform health care evidently has no problem handing over the power to arrest and indefinitely detain American citizens.

We can only hope the Supreme Court remains sufficiently “activist” to invalidate this incredibly unAmerican measure.

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Charlie White, the GOP, and the Rule of Law

After the Republicans in the Statehouse passed House Bill 1242, changing the election law in order to avoid the consequences of having run an ineligible candidate, my husband shook his head. “It’s enough to make you ashamed of ever having been a Republican.” This from a man who worked for the GOP for over fifty years–working on campaigns, working at the polls, driving people to vote, and serving in a Republican administration.

We have both bemoaned the radicalization of the party we used to call ours: the mean-spiritedness, the shortsighted focus on tax caps at the expense of public goods, the homophobia and the thinly veiled racism that emerged in the wake of Obama’s election. But HB 1242 is nothing less than an attack on the rule of law.

John Adams famously said that our constitution established the rule of law, not the rule of men. The Founders gave us limited government. That didn’t mean that the size of government was to be limited, as many seem to think. It meant that the same rules have to apply to everyone, that there are limits to the ways in which official power can be used.

Scholars identify eight elements of the rule of law:

  • Laws are necessary, and must apply to all–including government officials.
  • Laws must be published.
  • Laws must be prospective in nature so that the effect of the law may only take place after the law has passed.
  • Laws must be reasonably clear and specific, in order to avoid arbitrary enforcement.
  • Laws must avoid contradictions.
  • Laws cannot require people to do impossible things.
  • Law must stay sufficiently constant through time to allow rules to be understood; at the same time, the legal system should allow for timely revisions when the reasons for the law have changed.
  • Official action should be consistent with the declared rule.

Our sense of fundamental fairness is offended if someone is punished for violating a rule that was passed only after he acted. We would be outraged if a person who violated an existing law managed to get it changed so that he escaped punishment. We might not be able to point to the precise element of the rule of law that had been violated in such cases, but we’d know instinctively that it was wrong.

This over-reach by the Indiana GOP has generated a petition drive, asking Governor Daniels to veto the measure. I don’t hold out much hope, but I signed the petition, and I hope many others will as well.

If the legislature ultimately decides that current laws governing electoral vacancies should be changed, fine. Those new rules can be applied prospectively, to future cases. Changing the rules when they fail to favor you, so as to escape the consequences of your own misbehavior, isn’t just unfair. It isn’t just contrary to the rule of law.

It is unAmerican.

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