Topic: Law and Civil Liberties

Pope Francis Graph of the Day

As the Argentine Pope, ever critical of capitalism, visits the United States, my colleagues at have posted this graph.


It shows that in 1896, income per person in the United States and Argentina, two of the richest countries in the world, was about identical. Argentina subsequently eschewed the free market, replacing it with trade protectionism and other corporatist policies intended to help the poor by redistributing wealth. By 2010, Argentine income was a third of that of the United States.

Perhaps Pope Francis doesn’t endorse Argentine economic policies, but having just arrived from Cuba, he missed an opportunity to denounce the lack of freedoms that have kept that island and other Latin American countries poor and repressed. He met with none of the many admirable Cuban dissidents, in or out of prison, who have been peacefully advocating basic rights. Nor did he mention the plight of the Cuban people they represent, even as authorities arrested or detained 250 Cuban activists during his visit.

The Cuban Forum for Rights and Liberties (Foro por los Derechos y Libertades), an independent group of dissidents in Cuba, summed up how it felt about, and experienced, the Pope’s visit. It read, in part:

            “We human rights activists, regime opponents and independent journalists have experienced days full of threats, harassment, telephone connections being cut off, homes besieged by the authorities, and violent, arbitrary arrests.

            The behavior of the regime was expected. However, the position of the church has been surprising. The exaggerated and repeated shows of approval of the dictatorship, the silence toward its excesses, and the refusal to hear dissident voices have created broad discontent among Cuban believers and non-believers both within and outside of the island.”

The group might have added that the disappointment has spread more widely in the Americas.

New Policy On White Collar Prosecution Risks Scapegoating

Last week, the Department of Justice announced a new policy regarding its approach to corporate criminal investigations.  Instead of focusing first on the company and, having resolved that portion of the investigation, turning to the task of identifying potential individual criminal suspects, prosecutors are now directed to build their cases against individual wrong doers from the start.  Media coverage of this policy statement has focused on criticism levied against the administration for being too soft on Wall Street and too cozy with corporate donors.  The New York Times trotted out the old complaint that no one went to jail in the wake of the financial crisis (even though, to my knowledge, no one has ever identified a criminal law the violation of which caused any part of the crisis).  While the administration’s rhetoric about equal justice before the law is admirable, the policy memo and its surrounding coverage have a distressing whiff of scapegoating about them. 

On Constitution Day, A Reminder About Liberty and Eternal Vigilance

Two very recent episodes involving basic constitutional rights demonstrate the power of an informed and active citizenry successfully confronting government fear-mongering and overreach.

The first happened this week in Irving, Texas, where 14-year-old Ahmed Mohamed was arrested after bringing a homemade clock to school to show his engineering teacher.  Government officials insisted that Ahmed’s clock might have been a bomb.

Distressingly, Ahmed claims that his interrogation occurred despite the fact that he asked to see his parents before answering any questions.  Police allegedly refused, and continued the interrogation anyway.  Ahmed was subsequently and inexplicably handcuffed, arrested, and transferred to a juvenile detention facility, still without access to his parents.

The public reaction against Ahmed’s treatment was swift and voluminous. Facebook and Google executives offered the aspiring engineer trips to their offices.  MIT representatives extended similar opportunities.  Even President Obama got in on the act, inviting Ahmed to bring his clock to the White House. #IStandWithAhmed quickly became the cause of the day on social media.

Government officials only fed the frenzy by issuing defenses such as “He kept maintaining it was a clock, but there was no broader explanation,” and that officials had “followed protocol.”  The school even sent home a letter defending itself for protecting students and assuring parents that their children were safe from a threat that never was.

When asked to explain why police refused to allow Ahmed to speak with his parents or a lawyer during his interrogation, police chief simply said that he “[didn’t] have answers.”

That answer isn’t good enough.

Pope Francis and Criminal Justice

When Pope Francis visits the United States next week, he is expected to meet with prisoners in Philadelphia and to address the criminal justice system in a speech to members of Congress.

Unfortunately, Pope Francis’ past comments in support of the drug war suggest that he will refuse to acknowledge one of the biggest contributors to American injustice and a primary reason why so many people end up in American prisons in the first place: drug prohibition.

In my book, After Prohibition, I quote a Catholic clergyman, Father John Clifton Marquis, who wrote:

Drug laws are a moral issue.  Fifty years of drug legislation have produced the exact opposite effect of what those laws intended: the laws have created a tantalizingly profitable economic structure for marketing drugs. When law does not promote the common good, but in fact causes it to deteriorate, the law itself becomes bad and must change …. Moral leaders have no alternative but to choose between authentic morality, which produces good, and cosmetic morality, which merely looks good. Drug laws look good! But the tragic flaw of cosmetic morality, like all other forms of cosmetics, is that it produces no change of substance …. Authentic moral leaders cannot afford the arrogant luxury of machismo, with its refusal to consider not “winning.” Winning, in the case of drug abuse, is finding the direction and methods that provide the maximum amount of health and safety to the whole society without having a cure that is worse then the disease.

Father Marquis’s concern about the dangers of “cosmetic morality” in drug policy has been substantiated in the 25 years since he expressed it. Hundreds of thousands of people are incarcerated in this country for non-violent drug offenses. Countless innocent people, whether suspects, bystanders, or police officers have lost their lives in the name of prohibition.

Police Militarization Leads to Extreme Constitutional Violations

When a police SWAT team raided Andrew Cornish’s home in Cambridge, Maryland at 4:30am, the officers were heavily armed, dressed in black, wearing helmets and goggles, and carrying battering rams. (They were investigating small-time drug possession—seriously.) They stormed the residence without announcing themselves and killed Cornish seconds later as he emerged from his bedroom in his underwear.

Cornish’s estate sued the Cambridge police. At trial, Cornish’s estate claimed that the police violated two Fourth Amendment rules. First, the police violated the knock-and-announce rule when they failed to wait more than five seconds for him to answer the door after knocking. Second, the police violated the prohibition on excessive force when they shot him to death. The jury found for Cornish’s estate on the knock-and-announce violation and against him on the excessive force violation, awarding damages to the estate.

The U.S. Court of Appeals for the Fourth Circuit arrogated to itself the role of the jury—the resolution of questions of fact—and determined that because “the Officers’ illegal entry was not the legal cause of Cornish’s death,” the estate was only entitled to nominal damages to “vindicate the deprivation of Cornish’s constitutional rights.” Cornish’s estate has now appealed to the Supreme Court.

The knock-and-announce rule is an ancient one rooted in the English common law. In the early 17th century, Lord Coke noted that if a sheriff “break the house when he may enter without breaking it (that is, on request made, or if he may open the door without breaking), he is a trespasser.” That rule continues to this day: “law enforcement officers must announce their presence and provide residents an opportunity to open the door.” Hudson v. Michigan (2006).

The knock-and-announce rule serves to protect the life, limb, and property of both home occupants and police serving a search or arrest warrant. Cornish’s estate should thus be entitled to due compensation for the unconstitutional deprivation of his right to life.

Indeed, this case is particularly troubling because it represents a growing trend of paramilitary policing in America. The over-deployment of SWAT teams radically enhances the threat of harm to both civilians and officers for what should be ordinary police work. SWAT team deployments have increased more than 1,400% since the 1980s. Between 1980 and 2005, the average annual number of domestic paramilitary raids increased from 3,000 to 50-60,000.

SWAT teams and tactical units were originally created to address high-risk situations, such as terrorist attacks and hostage crises. Today, however, these extreme situations account for only a small fraction of SWAT deployments; they’re used primarily to serve low-level drug-search warrants.

Kane v. Lewis represents an excellent case for the Supreme Court to send the important message that lower courts should respect the role of juries in our constitutional structure, not contort the law to avoid holding the police accountable. Accordingly, Cato filed an amicus brief supporting the petition for review on behalf of Cornish’s estate and calling for summary reversal of the Fourth Circuit.

Erik Zimmerman and Adam Doerr of Robinson, Bradshaw & Hinson, P.A. worked with Cato on the brief.

King v. Burwell and the Triumph of Selective Contextualism

This Thursday, the Cato Institute will release the 14th edition of the Cato Supreme Court Review, covering the Court’s October 2014 and 2015 terms. The lead article, “King v. Burwell and the Triumph of Selective Contextualism,” is by Jonathan Adler and yours truly. Here’s the abstract:

King v. Burwell presented the question of whether the Patient Protection and Affordable Care Act of 2010 (ACA) authorizes the Internal Revenue Service (IRS) to issue tax credits for the purchase of health insurance through Exchanges established by the federal government. The King plaintiffs alleged an IRS rule purporting to authorize tax credits in federal Exchanges was unlawful because the text of the ACA expressly authorizes tax credits only in Exchanges “established by the State.” The Supreme Court conceded the plain meaning of the operative text, and that Congress defined “State” to exclude the federal government. The Court nevertheless disagreed with the plaintiffs, explaining that “the context and structure of the Act compel us to depart from what would otherwise be the most natural reading of the pertinent statutory phrase.” The Court reached its conclusion by disregarding portions of the ACA’s text and considering only selected elements of the ACA’s structure, context, and purpose. The King majority’s selective contextualism embraced an unexpressed congressional “plan” at the expense of the plan Congress actually enacted.

Our article—which is available now at SSRN—quotes Darth Vader more often than any previous Cato Supreme Court Review article. (Probably.)

Adler and I will also discuss the King ruling on a panel at Cato’s 14th Annual Constitution Day Conference this Thursday, September 17, from 10:45am-12pm. Click here to register.

Kim Davis Also Raised an Establishment Clause Issue

Several Cato scholars, such as Walter Olson and Ilya Shapiro, have commented on the religious liberty and rule-of-law aspects of the Kim Davis case. In addition to their arguments, the Davis case is perhaps the clearest in modern times for a state establishment of religion.

Free Exercise is only half of the constitutional package of First Amendment religious protections. There is also the Establishment Clause, preventing the state or its agents from establishing a religion. It is a blanket anti-theocracy clause that is understood to be applicable to the states by the Fourteenth Amendment. As James Madison said on the House floor in 1789, the Establishment Clause seeks to stop a particular religion or sect from “establish[ing] a religion to which they would compel others to conform” or “enforc[ing] the legal observation of [a particular faith] by law.”

The key, under-explored factor in this case is that Kim Davis claimed “[the Christian] God’s authority” in denying same-sex couples the right to marry. By claiming “God’s authority” as the basis for denying the license—rather than any man-made law—Davis effectively established her religion in the Rowan County Clerk’s office and imposed on the religious liberty of those who hold other (or no) faiths.

People who do not subscribe to Davis’s particular brand of Christianity lose substantive rights guaranteed by the Constitution. That includes the right to civil marriage. Moreover, Davis’s establishment directly impinged on the right to freely practice any faith that accepts same-sex marriage, such as the United Church for Christ.

The right against establishment is just as important a protection for religious freedom as the Free Exercise Clause. Imagine if the Roman Empire had an anti-establishment rule. Christians pre-Constantine would have been able to expand Christianity without the threat of gruesome martyrdom. The right to be free from state-imposed religion is thus an important buttress to the Free Exercise Clause; without it, the state would always have a compelling interest in promoting its preferred religious uniformity at the expense of free exercise. That is a particularly undesirable result for a religiously diverse nation.

Regardless of what one thinks of the decision in Obergefell v. Hodges, same-sex couples have the constitutional right to civil marriage. Absent a constitutional amendment it is incumbent upon government officials to obey Obergefell. If that ruling conflicts with state officials’ consciences, their state duty not to establish their religion and impose it on others through state offices still trumps (when it comes to their official capacity—Ilya Shapiro wrote about the distinction between official and civil disobedience here).

The United States is a government of laws, not gods and men. Davis can quit, do her job, or recuse herself and let her office issue licenses without her participation, but she cannot claim God’s law as public authority to use her office to impinge on others’ rights and expect to be protected under the First Amendment. That is precisely the harm to liberty that the Establishment Clause was designed to prevent.