Civil Liberties Are Not Free

A thoughtful article by my friend Josh Blackman about how if the justices decide that Rahimi should be decided by the liberal model "domestic violence is so dangerous that just an accusation should deny gun rights" then lower courts will be tempted to take that same relaxed view about other civil liberties that liberals have historically considered important: free speech, due process, Miranda decision.

This Should Be a "Duh!" Decision

Wearry v. Foster (5th Cir. 2022):

After the Supreme Court overturned Michael Wearry’s Louisiana capital murder conviction, Wearry v. Cain, 577 U.S. 385 (2016), Wearry brought this §§ 1983 and 1988 suit against the state prosecutor and a sheriff’s detective, alleging that they fabricated evidence that deprived him of due process and a fair trial. Defendants, District Attorney Scott Perrilloux and Livingston Parish Sheriff’s Detective Marlon Foster, each moved to dismiss for failure to state a claim under Rule 12(c) based on assertions of absolute prosecutorial immunity. The district court denied the motions, holding that neither defendant was entitled to absolute immunity for fabricating evidence by intimidating and coercing a juvenile to adopt a false narrative the defendants had concocted out of whole cloth. 

We agree with the district court that Wearry’s complaint alleges misconduct that is fundamentally investigatory in nature. When a prosecutor joins police in the initial gathering of evidence in the field, he acts outside his quasi-judicial role as an advocate; instead he acts only in an investigatory role for which absolute immunity is not warranted. Therefore, District Attorney Perrilloux is not entitled to absolute immunity for his actions. Nor is Detective Foster absolutely immune. As the Supreme Court has made clear, a police officer is not entitled to the absolute immunity reserved for a prosecutor. We AFFIRM the district court’s rulings.

Fabricating evidence to get a conviction is about as clear a basis for sec. 1983 suit as I can imagine.

I find myself wondering if Rittenhouse should be suing his prosecutor over the video footage that appeared to have been downscaled in quality before they provided it to defense counsel.  Perhaps, it was an honest mistake, but it would be good to know. 

voter ID laws enjoy majority black support

Or so this Washington Post survey shows.http://www.washingtonpost.com/page/2010-2019/WashingtonPost/2012/08/12/National-Politics/Polling/question_6226.xml?uuid=Nd4PSOTWEeGXOe75nF-yhQ#

Remember: everyone needs to show an ID and undergo a background check to buy a gun, but we can trust everyone who wants to vote.

Progressives Now Prohibiting Color-Blindness

Prof. Volokh reports on new efforts to suppress free speech at UCLA:

Tool: Recognizing Microaggressions and the Messages They Send
Microaggressions are the everyday verbal, nonverbal, and environmental slights, snubs, or insults, whether intentional or unintentional, that communicate hostile, derogatory, or negative messages to target persons based solely upon their marginalized group membership (from Diversity in the Classroom, UCLA Diversity & Faculty Development, 2014). The first step in addressing microaggressions is to recognize when a microaggression has occurred and what message it may be sending. The context of the relationship and situation is critical. Below are common themes to which microaggressions attach….
[Theme:] Color Blindness[:] Statements that indicate that a White person does not want to or need to acknowledge race.
[Microaggression Examples:] “There is only one race, the human race.”
“America is a melting pot.”
“I don’t believe in race.” …

I can remember a time when denying the existence of race was a sign of being PC!

Walking While Black

I understand that New York City is a difficult place to keep the peace, but Mayor Michael "I never saw a Bill of Rights provision that didn't need subverting" Bloomberg has really gone off the deep end with this one.  From the January 8, 2013 New York Times:

A federal judge ruled on Tuesday that the New York Police Department’s practice of stopping people suspected of trespassing outside private buildings in the Bronx was unconstitutional....

The case was narrowly focused on police stops in front of the private residential buildings enrolled in the Trespass Affidavit Program in the Bronx. Under that program, which includes several thousand residential buildings, property managers have asked the police to seek out trespassers and arrest them on sight.

But Judge Shira A. Scheindlin of Federal District Court in Manhattan ruled Tuesday that the Police Department was routinely stopping people outside such buildings without reasonable suspicion that they were trespassing.

What I find really distressing is how many liberals in this country will cheer Judge Scheindlin's decision, and criticizing Bloomberg's police state tactics, while supporting Bloomberg's equally dangerous police state approach to guns.

Blasphemy

It wasn't that many centuries ago that blasphemy was a criminal offense in the Christian world.  When I was young, it was still considered a pretty serious matter, and even television and movies would stay away from something that might be considered offensive to Christians.  Now, there is only one religion who seems to enjoy all this special sensitivity.  This September 14, 2012 Denver Post opinion piece captures the stinking hypocrisy of the left on this well:

Did you hear about the movie in which a Catholic woman masturbates with a crucifix?

You didn't? "Paradise: Faith" won a special jury prize at this year's Venice Film Festival.

Suffice it to say this movie about a "self-flagellating Roman Catholic woman married to a paraplegic Muslim," as The New York Times described it, may be as much of a provocation to some Catholics as the anti-Muhammad film by the mysterious "Sam Bacile" is to Muslims.

And in fact some Catholics have complained, including a group in Italy that accused the Austrian director of blasphemy.

Needless to say, however, they didn't riot, light street fires or storm the Austrian embassy. They didn't promise to hunt down the filmmakers and execute them. And not to belabor the obvious, but you can bet that when "Paradise: Faith" is released next year in the U.S., the reaction will be equally tame.
Read more: Carroll: A double standard on hurt religious feelings - The Denver Post http://www.denverpost.com/recommended/ci_21538143#ixzz26n5Upoxr

When Serrano's crucifix in urine generated upset from Christians, the left told us to get over it--free speech and all that.  No one was killed by angry Christian mobs.  As severe as the reaction became was...Christians argued that they shouldn't be required to subsidize art like this.

When The Last Temptation of Christ was made into a movie, there were boycotts, protests, upset letters, and some very hard words for the movie maker and the studio.  But no one was killed.  Nor would any person involved in the making of that film have to worry about his safety.  Nor would the government have asked anyone to consider making this film unavailable.  Or asked the maker to come in for questioning, as happened to the sleazy character behind this crime against film making that has upset the crowd with their turbans wound too tight.

There's a clear message here: if you want your religion taken seriously by the left...kill people if you are offended.

There's another clear message here: Islamists are behaving like spoiled children.  If you aren't prepared to live in the current age, you are invited to return to the seventh century.  And give up this century's technology while you are at it.  If we have to go back to fighting men on horseback with swords, I suspect that it will be a short battle of the civilizations.

The fact that the ACLU hasn't filed a suit against the Obama Administration for its actions with respect to YouTube and the Chairman of the Joint Chiefs calling Terry Jones tells me that they are, as usual, just hypocrites.  They don't support free speech, of freedom of religion.  They are just the Anti-Christian Litigation Unit, and not a civil liberties union at all.

What A Concept! Go After Criminals!

Mayor Bloomberg of New York City has been working hard to make himself popular with gun control advocates by the use of a "stop-and-frisk" program that involves stopping people at random and doing a patdown for weapons.  The results have been predictable: 80% of those stopped and frisked were black or Hispanic, and while 10% of those stopped were charged with crimes, overwhelmingly, they weren't weapons violations.  Apparently, only about 0.1% of those stopped had a gun.  This suggests, at a minimum, an inefficient use of police resources.  (I would point out the little problem of the Fourth Amendment, but we know how gun control advocates feel about those pesky pieces of text in the Bill of Rights.)

San Francisco, being a progressive haven, was considering the same semi-fascist approach, but has now backed down.  From the August 7, 2012 San Francisco Chronicle:

Mayor Ed Lee has dropped plans to bring New York City's controversial stop-and-frisk policy to San Francisco and instead will rely on targeted police enforcement, crime-tracking software and increased involvement by ministers to combat the gun violence that has plagued some of the city's most crime-ridden neighborhoods.
...
Police Chief Greg Suhr said the department instead will increase its presence in the city's southeast sector and use a zero-tolerance approach for violations of probation, parole or the city's gang injunction.
Read more: http://www.sfgate.com/bayarea/article/Ed-Lee-drops-stop-frisk-plan-amid-uproar-3768219.php#ixzz233ro5XmN

Wow...what a concept: focus the energy of police on the relatively small percentage of the population that has already been convicted of a crime (hence probation or parole) or who is identifiably associated with criminal enterprises (the gang injunction).  This is not only a more efficient use of resources, but it actually conforms to the Constitution.  Unfortunately, progressives have long had a problem with invidious distinctions--anything that causes one group to feel bad about themselves, regardless of the accuracy of those distinctions.

Santorum is Right -- And Wrong

Another article I couldn't sell.

On Griswold, Santorum is Right—And Wrong

Senator Santorum has managed to become a lightning rod for criticism for his argument that Griswold v. Connecticut (1965) was wrongly decided.  I am sure that for the vast majority of Americans, the notion of overturning Griswold seems like the heights of madness.  Not just libertarians, but even nearly all conservatives, would regard state laws that banned married couples from obtaining contraceptives, as positively bizarre.  (And even Senator Santorum thinks such laws would be bad ideas.)

First of all, let’s distinguish between public policy and constitutionality.  Not every law that is constitutional is necessarily a good idea.  The Militia Act of 1792 required every white male citizen between 18 and 45 to own a gun.  If Congress passed such a law today, it would certainly be constitutional, but perhaps not wise.  Limitations on government power that the Framers found compelling in 1789 sometimes seem less persuasive today. 

 The idea of states telling married couples that they could not obtain contraceptives seems pretty ridiculous today, but that alone does not make such a law unconstitutional.  If you believe that government derives its authority from the consent of the governed, it is very easy to hold, as Justice Stewart’s dissenting opinion in Griswold does, that this was “an uncommonly silly law” but still constitutional.  It is also hard to imagine that any state today would pass such a law, even if the Supreme Court overturned Griswold.

You may be wondering, “Why is Santorum so upset with Griswold?  Does he really want contraception made into a crime?”  I can tell you why many people, myself included, regard Griswold as a terrible jurisprudential mistake.  I have concluded, as a result of a bit of study of the history of contraception laws in the United States, that Griswold came to the right conclusion (such laws are unconstitutional), but by a terribly incorrect process.  In so doing, it created a precedent that later decisions used to reach often wrong conclusions.

For almost two thousand years, contraception was regarded with considerable skepticism by Christianity, because it was associated with pagan culture (along with abortion, homosexuality, prostitution, and adult men marrying girls as young as 12).  To my surprise, however, when I started digging through both primary and secondary sources, I was unable to find any laws in America prohibiting contraceptives until the 1873 Comstock Act, which classified contraceptive devices and information as obscenity.

The Ninth Amendment guarantees that, “The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people.”  If there had been state or federal laws in 1791 prohibiting contraceptives, when the states ratified the Ninth Amendment, you could argue that contraception was not a right “retained by the people.”  But there do not appear to be any such laws.  Griswold could easily, based on this lack of such laws, have made an originalist argument that Connecticut’s law violated the Ninth Amendment.  

The problem was that Justice William O. Douglas essentially admitted that the Supreme Court, for decades, had abandoned anything that was recognizably originalism.  Douglas’s opinion listing multiple rights that the Court had found that were not explicitly mentioned in the Constitution, but that “specific guarantees in the Bill of Rights have penumbras, formed by emanations from those guarantees that help give them life and substance.”  Penumbras?  Emanations?  If this sounds like doubletalk to you—I agree.  Somehow, Justice Douglas concluded that there was a right to privacy in there…somewhere.

Justice Goldberg’s concurring opinion, engaged in the same type of doubletalk, asserting that the Ninth Amendment protected rights that are “basic and fundamental and so deep-rooted in our society” without ever identifying a method for identifying how you determine that rights are “basic” or “fundamental” or “deep-rooted.”  Yet Goldberg also claimed that just because Connecticut’s law was unconstitutional, other laws did not run afoul of that right to privacy.  What laws?  Laws that prohibit adultery, fornication, and homosexuality.  

If someone had slapped a condom on Griswold, it would not matter that Douglas reached the right conclusion by the wrong method.  But Griswold had progeny.  The nebulous “right to privacy” soon led to Roe v. Wade (1973) which again, reached almost the correct constitutional result, but again by the wrong method.  Abortion after the unborn child began to stir was a crime under English law when the states ratified the Constitution; if any procedure or “potion” caused the unborn child to be born, and then die, that was murder.  It is hard to imagine how partial-birth abortions would qualify as constitutionally protected by this standard, but abortions in the first trimester certainly would be, as repugnant as they are.

Lawrence v. Texas (2003) was even more far afield on the privacy question.  Unlike Griswold, which came to the right result by the wrong method, and Roe, which came close to the right result by the wrong method, Lawrence built on that mythical right to privacy to find a constitutional right to something that was felonious (often capital felony) everywhere in America in 1791, and remained felonious into the twentieth century.

Our Constitution is not a straightjacket.  We are not obligated to keep our laws as museum pieces, forever stuck in 1791.  Congress and the state legislatures, as the representatives of the people, may modify and adjust laws to reflect changing attitudes and values.  But Griswold’s “right to privacy” has become a tool for overturning majority will where no originalist meaning can fairly justify the results.  

Senator Santorum is wrong about Griswold.  It came to the right conclusion.  But Santorum is also right about Griswold: it comes to its conclusions inaccurately, and the precedents based on it are frequently wrong.

Clayton E. Cramer teaches history at College of Western Idaho, and works as a software engineer for the State of Idaho.

Imagine This News Story in 2006

From the December 19, 2011 Washington Post:

Since September, at least 60 people have died in 14 reported CIA drone strikes in Pakistan’s tribal regions. The Obama administration has named only one of the dead, hailing the elimination of Janbaz Zadran, a top official in the Haqqani insurgent network, as a counterterrorism victory.

The identities of the rest remain classified, as does the existence of the drone program itself. Because the names of the dead and the threat they were believed to pose are secret, it is impossible for anyone without access to U.S. intelligence to assess whether the deaths were justified.

I am actually prepared to give Obama the benefit of the doubt on this, for the same reason that I was prepared to give Bush that same benefit on other national security matters.  Still, it does concern me that the  use of drones may not be the best way to win friends and influence people, and what really upsets me is how much the establishment left media is sitting silent on this question.  It makes me inclined to think that their concern about civil liberties and the rule of law was really just partisan politics, so that they could figure out how to get their snouts back into the public trough.

A New Definition of Cruel & Unusual Punishment

Soy protein.  From November 8, 2011 CBS Tampa:

CLERMONT, Fla. (CBS Tampa) – A Florida inmate is suing the state’s prison system for pulling the pork from his meals.

Eric Harris, a 32-year-old convicted pedophile who is serving a life sentence, suggests Lake Correctional Institution’s policy of serving a vegan diet is seriously affecting the quality of his life sentence.

I confess, I would not want a vegan diet.  But pedophiles are in no position to whine about their diet.  He should consider himself fortunate that this isn't 1791, when he might have been hung instead.

The Weston A. Price Foundation, a special interest group against soy products, will pick up the case’s legal expenses, and announced it has class-action ambitions including other prisoners, prison guards and taxpayers.

 There's an advocacy group for and against everything!  I would never have guessed.

Those Of You Who Voted For Obama To Protect Civil Liberties

From the March 24, 2011 Wall Street Journal:

New rules allow investigators to hold domestic-terror suspects longer than others without giving them a Miranda warning, significantly expanding exceptions to the instructions that have governed the handling of criminal suspects for more than four decades.

The move is one of the Obama administration's most significant revisions to rules governing the investigation of terror suspects in the U.S. And it potentially opens a new political tussle over national security policy, as the administration marks another step back from pre-election criticism of unorthodox counterterror methods.

Now, there might be some legitimate public policy questions about whether there should be a terrorism exception to the Miranda warning--the 24 type of scenarios involving ticking nuclear bombs and such.  There is even a legitimate argument about whether the Supreme Court's Miranda decision was wrong or not.  However, if you voted for Obama because you were worried about the PATRIOT Act's abuse of civil liberties, what are you going to say now?  Over at Volokh Conspiracy, Paul Cassell points to the problems with this, but I love the comment on Cassell's posting:

If only Barack Obama had been elected President we would not have Sarah Palin’s Rethuglican Thugs trampling our civil rights and bringing on the dark night of fascism. 

And you thought Obama won the 2008 election?  I guess not!