Topic: Law and Civil Liberties

Bob Barr on Drug Reform

President Obama’s new drug czar, Gil Kerlikowske, says he wants to banish the idea of a “war on drugs” because the federal government should not be “at war with the people of this country.”

At a Cato policy briefing on Capitol Hill on July 7, former Republican congressman Bob Barr, once a leading drug warrior in the House, explained why carrying out an end to the “war on drugs” will require a bipartisan solution.

Barnett on the Supreme Court Confirmation Hearing

Cato senior fellow Randy Barnett has a piece in the Wall Street Journal on the Senate’s confirmation hearing for Obama’s nominee to the Supreme Court.  Excerpt:

Supreme Court confirmation hearings do not have to be about either results or nothing. They could be about clauses, not cases. Instead of asking nominees how they would decide particular cases, ask them to explain what they think the various clauses of the Constitution mean. Does the Second Amendment protect an individual right to arms? What was the original meaning of the Privileges or Immunities Clause of the 14th Amendment? (Hint: It included an individual right to arms.) Does the 14th Amendment “incorporate” the Bill of Rights and, if so, how and why? Does the Ninth Amendment protect judicially enforceable unenumerated rights? Does the Necessary and Proper Clause delegate unlimited discretion to Congress? Where in the text of the Constitution is the so-called Spending Power (by which Congress claims the power to spend tax revenue on anything it wants) and does it have any enforceable limits?

Read the whole thing.

Making Airline Travel as Unpleasant as Possible

The Transportation Safety Administration long has made air travel as unpleasant as possible without obvious regard to the impact on safety.  Thankfully, the TSA recently dropped the inane procedure of asking to see your boarding pass as you passed through the checkpoint – a few feet away from where you entered the security line, at which point you had shown both your boarding pass and ID. 

However, there are proposals afoot in Congress to set new carry-on luggage restrictions, to be enforced by the TSA, even though they would do nothing to enhance security.  An inch either way on the heighth or width of a bag wouldn’t help any terrorists intent on taking over an airplane.  But the proposed restrictions would inconvenience travelers and allow the airlines to fob off on government what should be their own responsibility for setting luggage standards. 

TSA also has restarted ad hoc inspections of boarding passengers.  At least flights as well as passengers are targeted randomly.  After 9/11 the TSA conducted secondary inspections for every flight.  The process suggested that the initial inspections were unreliable, delayed passengers, and led experienced flyers to game the process.  It was critical to try to hit the front of the line while the inspectors were busy bothering someone else.  There was no full-proof system, but I learned that being first or second in line was particularly dangerous.

Finally TSA dropped the practice.  And, as far as I am aware, no planes were hijacked or terrorist acts committed as a result.  But TSA recently restarted the inspections, though on a random basis.

I had to remember my old lessons last week, when I ran into the routine on my return home from a trip during which I addressed students about liberty.  Luckily I was able to get on board, rather than get stuck as TSA personnel pawed through bags already screened at the security check point.

There’s no fool-proof way to ensure security for air travel.  Unfortunately, it’s a lot easier to inconvenience passengers while only looking like one is ensuring airline security.

Drivers Use Technology to Fight Snooping by Greedy Government

The Washington Examiner has an encouraging story about how citizens are using high-tech to thwart the speed cameras used by greedy politicians to generate more tax revenue. The bureaucrats assert the cameras are about saving lives, but allow a personal observation to illustrate the gross dishonesty of the government. I have been nailed twice by speed cameras in DC, once on an interstate highway where the speed limit mysteriously dropped to 45 miles-per-hour, and the other time on a major artery with three lanes each direction that inexplicably had a 25 miles-per-hour limit. Needless to say (but I’ll say it anyhow), these speed traps had nothing to do with promoting safety and everything to do with steering more cash to the political class:

Area drivers looking to outwit police speed traps and traffic cameras are using an iPhone application and other global positioning system devices that pinpoint the location of the cameras. That has irked D.C. police chief Cathy Lanier, who promised her officers would pick up their game to counteract the devices… Lanier said the technology is a “cowardly tactic” and “people who overly rely on those and break the law anyway are going to get caught” in one way or another. The greater D.C. area has 290 red-light and speed cameras – comprising nearly 10 percent of all traffic cameras in the U.S., according to estimates by a camera-tracking database called the POI Factory. …Photo radar tickets generated nearly $1 billion in revenues for D.C. during fiscal years 2005 to 2008.

The Best Way to Get a Kidney (or Heart, Lung, Liver…)

An op-ed in today’s NYT describes the abysmal organ tranplant situation in the United States, where the demand for healthy organs vastly outstrips the supply. A snippet :

There are 85,000 people biding their time [awaiting kidney transplant]… More than 4,500 of them died last year waiting. On average, that’s 13 people dying each day awaiting a kidney. (Maybe you should hope for liver disease: there are only about 16,000 people on the liver waiting list, and one-third of them get their liver in any one year.)

The column’s author is Daniel Asa Rose, whose new book Larry’s Kidney describes his cousin’s travel to China to receive a transplant (skirting Chinese law).

Rose argues the United States can resolve the transplant organ shortage by adopting three policies:

[B]etter finance stem-cell research so we can start simply growing kidneys; build better mechanical organs; and change the presumed consent option so that people would have to opt out of donating organs rather than opt in.

The first two proposals, unfortunately, are more wishful thinking than serious policy, at least in the near term. Decades of attempts at robotic organs have yielded very disappointing results, and the many advances that we’re promised from stem cell research seem to be many years in the offing. If the United States is to save the lives of most of the people now on organ transplant lists, or who will join the lists in the next decade, it will be because of a dramatic increase in organ transplantation.

One way to accomplish this increase is to adopt Rose’s third policy — hospitals would harvest organs from the recently deceased unless the deceased has explicitly refused to make his organs available for donation. As the op-ed notes, several countries around the world already have this policy.

But this policy should trouble people who care about civil liberties. Should a person have to explicitly state on a legal document that he wants his body to be kept intact after his death? And even if the person has done so, what if the hospital (perhaps conveniently) cannot find the deceased’s documents?

Fortunately, there is an intermediate policy that would be much more respectful to the deceased and to civil liberties, would be easy to implement, would dramatically increase the supply of organs, and would have little cost relative to the other costs of transplantation: Incentivize people to volunteer to be organ donors — perhaps by granting a tax credit to their estate or covering their funeral expenses if, upon their passing, a healthy organ is harvested for transplantation. 

Unfortunately, this policy is prohibited by the 1984 National Organ Transplant Act, a law that has cost more U.S. lives than were lost in the Korean and Vietnam wars combined. And this policy is opposed by many bioethicists despite clear empirical evidence that the policy would significantly reduce pain and suffering — which says more about the sorry condition of contemporary applied ethics than about the idea of rewarding organ donors.

Cato has done considerable work advocating this idea. For some examples besides the articles linked in the above paragraph, see this video and these papers.

Courts Check D.C. Government — Again.

Last year, the Supreme Court declared the D.C.’s gun control law unconstitutional (pdf).  Now a federal appellate court has unanimously declared that D.C. police’s aggressive ”Neighborhood Safety Zone” (NSZ) checkpoint policy is unconstitutional (pdf). 

Under the policy, any vehicle entering an area that has been declared a “Neighborhood Safety Zone” by the city’s police chief can be “stopped for the purpose of determining whether the driver has a legitimate reason for entering the NSZ.”

Here’s an excerpt from the appelate court decision:

We further conclude that appellants have sufficiently demonstrated irreparable injury, particularly in light of their strong likelihood of success on the merits. … The harm to the rights of appellants is apparent. It cannot be gainsaid that citizens have a right to drive upon the public streets of the District of Columbia or any other city absent a constitutionally sound reason for limiting their access. As our discussion of the likelihood of success has demonstrated, there is no such constitutionally sound bar in the NSZ checkpoint program. It is apparent that appellants’ constitutional rights are violated. It has long been established that the loss of constitutional freedoms, “for even minimal periods of time, unquestionably constitutes irreparable injury.” Granted, the District is not currently imposing an NSZ checkpoint, but it has done so more than once, and the police chief has expressed her intent to continue to use the program until a judge stops her.

It’s time for Mayor Adrian Fenty to show Peter Nickles, the Attorney General of the city, to the door.  Too many of his ideas have proven to be misguided and contrary to law.

The Sotomayor Hearings

judgesotomayorNothing has changed in the six short weeks since Sonia Sotomayor was nominated to the Supreme Court: she remains a symbol of the racial politics she embraces. While we celebrate her story and professional achievements, we must realize that she – an average federal judge with a passel of unimpressive decisions – would not even be part of the conversation if she weren’t a Hispanic woman.

As Americans increasingly call for the abolition of affirmative action, Sotomayor supports racial preferences. As poll after poll shows that Americans demand that judges apply the law as written, the “wise Latina” denies that this is ever an objective exercise and urges judges to view cases through ethnic and gender lenses.

At next week’s hearings, Sotomayor will have to answer substantively for these and other controversial views – and for outrageous rulings on employment discrimination, property rights, and the Second Amendment. To earn confirmation, she must satisfy the American people that, despite her speeches and writings, she plans to be a judge, not a post-modern ethnic activist. After all, a jurisprudence of empathy is the antithesis of the rule of law.