Tag: constitutional rights

My Favorite Constitutional Right

Both the Washington Post and NPR refer to the Tenth Amendment as a “tea party favorite.” I would have thought that tea partiers – and most of the rest of us – liked all 10 of the Bill of Rights, and indeed the rest of the Constitution as well. Now, sure, I guess if the ACLU could publish (in the 1970s or 1980s) the poster below, an “illustrated guide to the Bill of Rights” featuring only the First, Fourth, Fifth, Sixth, Eighth amendments (and only parts of those), along with the Fourteenth, Fifteenth, and Nineteenth amendments, which are not part of the Bill of Rights – well, then, I guess the Tea Party is entitled to have its own favorite parts of the Bill of Rights. But then, it was NPR and the Washington Post, not tea partiers, who suggested that the Tenth Amendment was perhaps uniquely a “tea party favorite.” I would urge the ACLU, the Tea Party, and all other Americans who care about freedom to consider the entire Constitution a “favorite.” Of course, the Tenth Amendment is pretty crucial, reminding policymakers that the federal government does not have any powers not delegated to it in the Constitution.

10 Rules for Dealing With the Police

Our friends at Flex Your Rights have a new film that is about to be released.  It’s called 10 Rules for Dealing with Police. Trailer for the film here.  I have seen the entire film and it is an outstanding work–accurate and useful information, great screenplay, and great acting.

Believe it or not, the police can lie to you and can try to trick you into giving up your constitutional rights.  Happens every day.  In less than 45 minutes, this film teaches you what you need to know about police encounters.  Every citizen should take an interest in learning about constitutional rights.  And experienced lawyers will tell you that you can save thousands of bucks in legal fees by avoiding common mistakes.  But you need to know the traps.   If you have teenagers in the family, make them watch it.  Knowledge is power.  Spread the word.

Flex Your Rights

Friends of the Cato Institute who closely follow the news about search and seizure and other civil liberties issues will probably know that there are simple, practical steps one can take to exercise our constitutionally guaranteed liberties, even when confronted by the police.

For everyone else, there’s Flex Your Rights. Founded by former Cato intern Steven Silverman, Flex Your Rights aims to teach ordinary citizens how to make good use of their civil liberties:

The vast majority of people are mystified by the basic rules of search and seizure and due process of law. Consequentially, they’re likely to be tricked or intimidated by police into waiving their constitutional rights, resulting in a greater likelihood of regrettable outcomes.

The sum of these outcomes flow into all major criminal justice problems – including racial and class disparities in search, arrest, sentencing and incarceration rates.

In order to ensure that constitutional rights and equal justice are upheld by law enforcement, we must build a constitutionally literate citizenry.

“Regrettable outcomes” aren’t limited to time behind bars for breaking the drug laws. Consider also damage to property during searches, loss of dignity and privacy, wasted law enforcement time, and police violence during what’s sure to be a nerve-wracking encounter. All of this can happen even when you’re not violating any laws at all, and that’s reason enough to refuse a search.

The police, and the laws themselves, should work for us, and if we don’t require their help, then that should usually be for us to decide. Flex Your Rights is here to help you do so. They’ve just launched a revamped website, which looks great, and they also have a new film in production titled 10 Rules for Dealing with Police. I look forward to seeing it!

A New Court Term: Big Cases, Questions About the New Justice

Today is the first Monday in October, and so is First Monday, the traditional start of the Supreme Court term.  The Court already heard one argument – in the Citizens United campaign finance case – but it had been carried over from last year, so it doesn’t really count.

In any event, continuing its trend from last term, the Court has further front-loaded its caseload – with nearly 60 arguments on its docket already.  Fortunately, unlike last year, we’ll see many blockbuster cases, including:

  • the application of the Second Amendment to state gun regulations;
  • First Amendment challenges to national park monuments and a statute criminalizing the depiction of animal cruelty;
  • an Eighth Amendment challenge to life sentences for juveniles; a potential revisiting of Miranda rights;
  • federalism concerns over legislation regarding the civil commitment of “sexually dangerous” persons;
  • a separation-of-powers dispute concerning the agency enforcing Sarbanes-Oxley;
  • judicial takings of beachfront property; and
  • notably in these times of increasing government control over the economy, the “reasonableness” of mutual fund managers’ compensation.

Cato has filed amicus briefs in many of these cases, so I will be paying extra-close attention.

Perhaps more importantly, we also have a new justice – and, as Justice White often said, a new justice makes a new Court.  While Sonia Sotomayor’s confirmation was never in any serious doubt, she faced strong criticism on issues ranging from property rights and the use of foreign law in constitutional interpretation to the Ricci firefighters case and the “wise Latina” speeches that led people to question her commitment to judicial objectivity.  Only time will tell what kind of justice Sotomayor will be now that she is unfettered from higher court precedent – and the first term is not necessarily indicative.

Key questions for the new Court’s dynamics are whether Sotomayor will challenge Justice Scalia intellectually and whether she will antagonize Justice Kennedy and thus push him to the right.  We’ve already seen her make waves at the Citizens United reargument – questioning the scope of corporations’ constitutional rights – so it could be that she will decline to follow Justice Alito’s example and jump right into the Court’s rhetorical battles.

In short, it’s the first day of school and I’m excited.

Honduras’ Interim Government Falls Into Zelaya’s Trap

Once again, and as a response to the return of deposed president Manuel Zelaya to Tegucigalpa, the interim government of Honduras has overreacted by decreeing a 45-day suspension of constitutional guarantees such as the freedom to move around the country and the right to assemble. The government is even imposing some restrictions on freedom of the press. More disturbingly, today the army shut down a radio station and a TV station supportive of Zelaya.

As I’ve written before, these measures are unnecessary, counterproductive and unjustified. While Zelaya’s supporters are known for repeatedly relying on violence, their actions have been so far contained by the police and the army. Zelaya himself is secluded at the Brazilian Embassy, and while he is using it as a command center to make constant calls for insurrection, the authorities have so far been in control of the situation.

One of the most troubling aspects of the suspension of constitutional guarantees is that they effectively obstruct the development of a clean, free, and transparent election process. Let’s remember that Honduras is holding a presidential election on November 29th, and many regard this electoral process as the best way to solve the country’s political impasse, particularly at an international level.

There can’t be a free and transparent presidential election while basic constitutional rights have been suspended. By adopting these self-defeating measures, the interim government of Honduras is lending a hand to Zelaya and his international allies in their effort to disrupt the country’s election process.

NYT: We Don’t Deserve First Amendment Protection!

I assume others have pointed this out already, but there’s something very odd about a Tuesday editorial in The New York Times arguing that campaign finance regulations that stifle the political speech of corporations must be upheld in the Citizens United case currently under consideration before the Supreme Court:

The question at the heart of one of the biggest Supreme Court cases this year is simple: What constitutional rights should corporations have? To us, as well as many legal scholars, former justices and, indeed, drafters of the Constitution, the answer is that their rights should be quite limited — far less than those of people.

In that case, surely it’s time to revisit some of the 20th century’s seminal free speech rulings. The idea that public figures cannot use libel law to squelch criticism unless they can prove an attack is intentionally or recklessly false, for instance, comes to us by way of New York Times Company v. Sullivan—a case in which the so-called “protected speech” was a paid advertisement run by a filthy corporation!  And what about the celebrated Pentagon Papers case, in which the Court found that only in the most extreme cases can the government resort to “prior restraint” of speech? Why that’s New York Times Company v. United States. In both cases, of course, the speech in question had political significance—perhaps even the potential to affect elections. In the Pentagon Papers case, by the way, the counsel for the Times was famed First Amendment lawyer Floyd Abrams, who also argued Citizens United.

Don’t worry, though, it’s only corporations like The New York Times that will lose speech protections.  If you, as a brave individual, want to say something controversial on your blog—though you’ll probably want to do it on a server you own personally, just in case—you’re totally in the clear. And if the federal government decides to sue, you’ll be totally free to use as much of your personal savings as you want to fight back.

Cheney’s Worldview

Former vice president Richard Cheney gave his big address on national security (pdf) over at AEI last week.   He covered a lot of ground, but this passage, I think, tells us quite a bit about Cheney’s worldview:

If fine speech-making, appeals to reason, or pleas for compassion had the power to move [al-Qaeda], the terrorists would long ago have abandoned the field.  And when they see the American government caught up in arguments about interrogations, or whether foreign terrorists have constitutional rights, they don’t stand back in awe of our legal system and wonder whether they had misjudged us all along.  Instead the terrorists see just what they were hoping for — our unity gone, our resolve shaken, our leaders distracted.  In short, they see weakness and opportunity.

So we shouldn’t let the terrorists see us get “caught up in arguments” about  the wisdom of our foreign policy, about whether our country should go to war, about our country’s treaty obligations, about the parameters of government power under our Constitution?  What is this former vice president thinking?

Does it matter if Charles Manson appreciates the fact that he got a trial instead of a summary execution?  No.  It does not matter what’s in that twisted head of his.  Same thing with bin Laden.  The American military should make every effort to avoid civilian casualties  even if bin Laden targets civilians.  Similarly,  it does not matter if bin Laden scoffs at the Geneva Convention as a sign of  ”weakness.”  The former VP does not get it.  It is about us, not the terrorists.

An obsession with the mentality of the enemy (what they see; what they hope for, etc.) can distort  our military and counterterrorism strategy (pdf) as well.  Cheney wants to find out what bin Laden’s objective is and then thwart it.  I certainly agree that  gathering intelligence about the enemy is useful, but Cheney seems so obsessed that he wants to thwart al-Qaeda’s objectives — even if some pose no threat to the USA, and even if some of al-Qaeda’s  objectives are pure folly.  

If the CIA told Cheney that it intercepted a message and learned that bin Laden wanted some of his men to climb Mount Everest as a propaganda ploy to somehow show the world that they can lord over the globe, one gets the feeling that  Cheney wouldn’t shrug at the report.  Since that is what bin Laden hopes to achieve, the enemy objective must be thwarted!  Quick, dispatch American GIs to the top of Everest and establish a post.  Stay on the lookout for al-Qaeda and stop them no matter what!  That’ll show bin Laden who has the real power!  Farfetched, yes, but what about the costly nation-building exercise (pdf) in Iraq?  How long is that going to last?  Mr. Cheney did not want to address that part of the Bush-Cheney record for some reason.

In another passage, Cheney bristles at the notion that his “unpleasant” interrogation practices have been a recruitment tool for the enemy.  Cheney claims this theory ignores the fact that 9/11 happened before the torture memos were ever drafted and approved.  He observes that the terrorists have never “lacked for grievances against the United States.”  They’re evil, Cheney says, now let’s talk about something else.  The gist of Cheney’s argument — that no post 9/11 policy can ever be counterproductive — makes no sense.

Cheney’s controversial legacy will be debated for a long time.  And he’s smart enough to know that he may have very few defenders down the road, so he is wasting no time at all in making his own case.  The problem is that his case is weak and plenty of people can see it. 

For related Cato work, go here and here.