Topic: Law and Civil Liberties

This Week at the Supreme Court

Notwithstanding last week’s agreement to hear the D.C. guns case – the announcement of which managed to be both later than originally expected and earlier than expected after the decision’s postponement – the Court has gone back to putting itself out of business by reducing its workload to nothingness.  (How’s that for judicial restraint?) 

The Court has granted review to 51 cases this term, putting it about at the same pace as last year, when only 68 cases were decided after argument.  This is down from the 70-low-80s of the previous 15 years (except 92 in 1997-98), which itself is down from the 100-110 pace before that (and, for example, 129 in 1973).

But forgetting the numbers game, this week the Court is hearing four arguments, in cases involving: 1) private causes of action under ERISA (Larue v. DeWolff); 2) the deductibility of financial advisers’ fees from trust/estate taxes (Knight v. Commissioner of Internal Revenue); 3) whether New Jersey may construct a natural gas facility on the Delaware River over Delaware’s objection (New Jersey v. Delaware); and 4) the federal preemption of a (Maine) state law that blocks the delivery of Internet-bought tobacco to teenagers (Rowe v. New Hampshire Motor Transport Assn.).  Not too exciting, other than that case 3 comes in under the Court’s rare original jurisdiction (meaning no state or lower federal court first ruled on the matter).

On Friday, the justices are scheduled to hold a private conference to discuss more pending cert petitions, with orders on those expected next Monday.  The safe bet is that they’ll deny them all – though there is one interesting case (McDermott v. Boehner) where one sitting congressman is suing another over the latter’s disclosure to reporters of an illegally taped (and embarrassing) phone conversation.  Stay tuned.

Naomi Wolf, Second Amendment Sister?

Naomi Wolf has an article in today’s Washington Post tied to her new book, The End of America: A Letter of Warning to a Young Patriot. The essay is actually a lot less leftist than the book. She deplores the civic illiteracy among young people that leaves them feeling ”depressed, cynical and powerless.” And she blames influences on both left and right: the Bush administration’s portrayal of “freedom and checks and balances as threats to national security,” of course, and also the No Child Left Behind Act’s emphasis on math and reading rather than civics and history. But also, she notes, “When New Left activists of the 1960s started the antiwar and free speech student movements, they didn’t get their intellectual framework from Montesquieu or Thomas Paine: They looked to Marx, Lenin and Mao.”

Perhaps her most interesting claim is this:

Teenagers and young adults often have no clue why the United States is different from, say, Egypt or Russia; they have little idea what liberty is.

Few young Americans understand that the Second Amendment keeps their homes safe from the kind of government intrusion that other citizens suffer around the world; few realize that “due process” means that they can’t be locked up in a dungeon by the state and left to languish indefinitely.

I rather suspect that this lefty writer who has written a whole book and launched an organization to “protect and defend the Constitution from assault by any President” meant to cite the Fourth Amendment, not the Second Amendment.

But maybe I’m being cynical. Maybe Naomi Wolf knows full well that it is the Second Amendment that ”keeps [our] homes safe from the kind of government intrusion that other citizens suffer around the world.” The Fourth Amendment may promise “the right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures.” But without the Second Amendment, and the well-armed citizenry it protects, how secure would our rights be? Certainly there’s no Second Amendment in Egypt or Russia, the countries she notes in contrast. The Soviet Constitution guaranteed its citizens freedom from search and seizure. But it did not guarantee the right to keep and bear arms.

So welcome, Naomi Wolf. And as the effort moves forward to protect our Fourth Amendment rights and to get Congress to remember its Article I powers, remember that there’s also an effort currently underway in the Supreme Court to protect our Second Amendment rights.

Supreme Court To Hear Landmark Case

The Supreme Court just announced that it will decide a landmark lawsuit concerning the constitutionality of the District of Columbia’s ban on guns. This is terrific news. My colleague, Bob Levy, senior fellow in constitutional studies here at Cato, is the prime mover behind the lawsuit. The whole idea of challenging the DC ban several years ago was to get a good Second Amendment case to the Supreme Court, i.e. plaintiffs who were responsible people who simply wanted to keep a handgun in their home for self-defense purposes. The Court will be hearing arguments in the case early next year and we can expect a ruling in the case by late June.

For a quick podcast interview with Bob Levy about the lawsuit, go here (or subscribe via iTunes). To listen to or watch a Cato policy forum about the lawsuit, go here. For Cato scholarship about the right to keep and bear arms, go here. For lawyers and law students interested in all the details about the lawsuit, go here and here.

Post Script to Reason Letter; Non-Coercive Alternatives to Prohibiting Abortion

I have four acquaintances raising grandchildren as if they were their own.

Some charities will pay a woman’s medical costs if covering such expenses will help her decide to carry the baby to term.

From a libertarian perspective, individuals or charities paying a woman beyond her medical expenses should also be a viable solution. Remuneration would be for the woman’s time and physical effort (labor), not a “purchase price” for the child. The arrangement could stipulate, as surrogate motherhood contracts usually do, that payment is contingent on her putting the child up for adoption.

WHTI Should Go

Rep. Bart Stupak (D-MI) has had the good sense to introduce a bill to repeal the Western Hemisphere Travel Initiative.

WHTI is a classic self-injurious overreaction to the threat of terrorism. The reductions in lawful trade and travel produced by WHTI and the direct costs of the program are greater than the damage to the country that would be averted by this readily defeated “security” measure.

What about Fetal Rights?

In response to my letter on abortion recently published in Reason Magazine, several people have asked me, “What about fetal rights?” I addressed that issue in my original letter but it was edited out. Below is the letter I submitted with the portions that were deleted in bold.

Libertarian and Mother of Four

As a libertarian and a mother of four, I take issue with Radley Balko’s characterization of the abortion debate in “Getting Beyond Roe” (Aug/Sep) as being about “setting community standards” and that issues such as abortion “are best dealt with in those diverse laboratories of democracy, the states.” Abortion should no more be a question for local politics than slavery.

Community standards are the greatest threat to individual liberty there is. They have led to witch trials, kangaroo courts, censorship and egregious takings through eminent domain. And now Balko would like to let them decide the reproductive fate of women. Our country is not a democracy, not even a federalist democracy, but a constitutional republic — a country in which the Constitution protects individuals against majoritarian trespass. As far as individual rights are concerned, the Constitution is useless if it can’t protect one portion of the population from being forced into involuntary servitude by another, no matter at what level of government the enslavement takes place.

The right to have an abortion per se is not the issue, but the right to self-determination, the right not to be used as a means to an end against one’s will, the right not to be considered a communal resource — in short, the right for women to have the same control over their own bodies and their own fates as men.

Perhaps Roe was decided wrongly, not because it nationalized a right to abortion, but because it was decided in reliance on the wrong precedents. The 13th Amendment is more germane to the abortion debate than the Griswold v. Conn. line of cases and their amorphous right to privacy. Blackmun, in Roe, showed sympathy for the plight of women but also a profound paternalistic disrespect for those very people he was trying to help. To hinge the right of women to control their own bodies on privacy instead of every individual’s right, whether male or female, not to be treated as a public resource indicates a fundamental misunderstanding of what is at stake.

I believe abortion is morally wrong, but I also believe that in a conflict between mother and fetus, a woman’s right must always take precedence. A human being’s rights under the law increase with maturity. That has been the tradition under Anglo-American law as well as world wide for most of history. To suggest that a fetus has the same rights as a mature adult individual borders on the perverse. A woman’s rights should never be placed second to the needs of her fetus. To do so is to treat women first and foremost as communally owned vessels for bringing forth life and only second as autonomous individuals.

For those, like myself, who believe abortion is fraught with moral difficulties, the correct course of action is to teach, communicate, and discuss the importance of valuing human life with our daughters, our female neighbors and our friends. We must help them come to the correct conclusion based on good clear reasoning and the strength of our convictions. To force a woman to carry a pregnancy to term and give birth unwillingly is involuntary servitude, no matter what the rationale. Pregnancy and birth are the most dangerous work most women will ever do. To deprive them of medically feasible means for escaping those dangers, let alone planning their lives, is to treat women with the greatest disrespect.

There is no question that decisions about abortion are horrendously difficult, but just because a decision is difficult doesn’t mean women aren’t fit to make them. Life entails many difficult decisions, often involving life and death. Men make decisions about how to protect their families and their way of life; unfortunately sometimes those decisions involve going to war. Women, like men, make decisions about what is best for their families and their way of life; unfortunately sometimes such decisions involve abortions. Fetuses are potential children, not full grown adults, and women are full grown adults, not children. It is time we start treating each with the respect and dignity they deserve.

Anti-Immigrant Opinions are Weakly Held II

[Here’s Anti-Immigrant Opinions are Weakly Held I.]

In his book The Rise and Fall of the Great Powers: Economic Change and Military Conflict from 1500 to 2000 Yale history professor Paul Kennedy makes the case that, historically, great powers have risen to a point where they have become overextended because of their imperial commitments and the expenditures needed to defend them, at which point they have collapsed.

I was reminded of this when I saw the television ad Rep. Tom Tancredo is running in Iowa. (It’s getting much more play in the blogosphere than he could ever afford to buy.)

By equating immigrants to terrorists, this leader of the anti-immigrant right is shedding credibility - the coin of the political realm - at a furious pace. His argument just doesn’t square with the real world or the common sense judgments good American people make for themselves.

Anti-immigrant opinions have reached their apex. The cartoonish quality of Tancredo’s hysteria-mongering presages the fall. See for yourself.