Topic: Law and Civil Liberties

Five Years Is a Long Time, Part 2

What has the Bipartisan Campaign Reform Act accomplished over the last five years?

Not much. But don’t take my word for it. Mark Schmitt helped fund the struggle for BCRA as a program officer at the Open Society Institute. Now he has written a candid and thoughtful analysis that begins:

Judged by the most visible results on promises like getting big money out of politics or cleaning up politics, campaign finance reform has been, to put it mildly, a disappointment.

Five Years Is a Long Time, Part 1

Today is the fifth anniversary of the signing of the Bipartisan Campaign Reform Act.

Five years ago, surveys found that 79 percent of the public approved of the job being done by the man who signed McCain-Feingold, George W. Bush. Now 34 percent approve of his work. Until recently, the major sponsor of the law, Sen. John McCain, seemed the most likely candidate to win the Republican presidential nomination for 2008. Now McCain persistently trails Rudolph Guiliani in the polls, and his presidential campaign seems to be in trouble.

If September 11th explained President Bush’s high rating five years ago, the war in Iraq has caused his free fall. Signing McCain-Feingold did show a certain lack of concern about political principles in the current president, but it probably cost him no more than a point or two in his approval ratings.  (In fact, his approval rating fell on average 3 points during the two months after he signed McCain-Feingold).

The case of McCain seems different. GOP primary voters saw and continue to see his campaign finance “reform” jihad as an attack on conservatism, the Republican party, and the U.S. Constitution. He is not liked. That didn’t matter much to McCain, because he believed Republican voters would prefer him, warts and all, to Hillary Clinton.

But that is not the choice Republicans have right now, and the choice they do have in surveys suggests Sen. McCain may not make it to the “me or Hillary” stage of his plan to become president. Perhaps principles do matter after all.

REAL ID, the Race Card

I testified in Congress yesterday, at a hearing on the REAL ID Act in the Senate Homeland Security and Governmental Affairs Committee’s Subcommittee on Oversight of Government Management, the Federal Workforce, and the District of Columbia.  My testimony is here.

An issue that I sought to highlight comes from studying the REAL ID regulations carefully: The standard that the Department of Homeland Security selected for the 2D bar code that would go on REAL ID compliant cards includes race/ethnicity as one of the data elements. 

DHS does not specifically require inclusion of this information, but states are likely to adopt the entire standard.  Thus, starting in May 2008, many Americans may be carrying nationally uniform cards that include race or ethnicity in machine-readable formats – available for scanning and collection by anyone with a bar code reader.   Government agencies and corporations may affiliate racial and ethnic data more closely than ever with information about our travels through the economy and society.

This was not intended by the authors of the REAL ID Act, nor was it intended by the regulation writers at the Department of Homeland Security.  The Belgian colonial government in 1930s Rwanda had no intention to facilitate the 1994 genocide in that country either, but its inclusion of group identity in ID cards had that result all the same.

The woman in the image below, believed to be a genocide victim, is categorized as a Tutsi just below her photograph.  Her name is not seen, as it appears on the first page of this folio-style ID document.  The names of her four children, though, are written in on the page opposite the photo.

The lessons of history are available to us. The chance of something like this happening in the United States is blessedly small, but it is worth taking every possible step to avoid this risk, given an always-uncertain future.  In a society that strives for a color-blind ideal, the federal government should have no part in creating a system that could be used to track people based on race. 

 photo by Jerry Fowler, USHMM

He Must Be Scots-Irish

A longtime friend and executive assistant to Sen. James Webb (D-VA) was charged yesterday with trying to carry a loaded pistol and two fully loaded magazines of ammunition into a Senate office building, the Washington Post reports.

Webb’s most recent book is Born Fighting: How the Scots-Irish Shaped America. The Scots-Irish “are a culture founded on guns, which considers the Second Amendment sacrosanct, while literary and academic America considers such views not only archaic but also threatening,” Webb wrote. “Nobody is going to get their guns.”

Watch out, Capitol Police.

Respecting Property Rights

This dramatic photo appears on the front page of today’s New York Times.

 

Chinese authorities are respecting the legal rights of a landowner who does not wish to sell her parcel.  Maybe this incident will have a Sputnik-like effect on American policymakers:  “Hey, the commies are getting ahead of us on property rights!  Let’s reverse the Kelo ruling and stop eminent domain abuse!”

For Cato work related to property rights, go here.

A Serious Matter

The Washington Post deserves a lot of credit for publishing this piece on its editorial page today. An anonymous businessman explains his predicament after having been served with an FBI “national security letter”:

Three years ago, I received a national security letter (NSL) in my capacity as the president of a small Internet access and consulting business. The letter ordered me to provide sensitive information about one of my clients. There was no indication that a judge had reviewed or approved the letter, and it turned out that none had. The letter came with a gag provision that prohibited me from telling anyone, including my client, that the FBI was seeking this information. Based on the context of the demand — a context that the FBI still won’t let me discuss publicly — I suspected that the FBI was abusing its power and that the letter sought information to which the FBI was not entitled.

I resent being conscripted as a secret informer for the government and being made to mislead those who are close to me, especially because I have doubts about the legitimacy of the underlying investigation.

(For background on national security letters, go here). 

This businessman has given us a sneak preview of life in the surveillance state. I’ve tried to draw attention to the conscription aspect of anti-terrorism laws and policies, but conservatives don’t want to talk about it. The ACLU has gotten involved in the gag order/free speech aspect, but the conscription gets tossed aside in a cacophony. 

President Bush insists that he is ”defending freedom.” John Yoo and Eric Posner advance the view that the sphere of liberty has been expanding over the years. Other conservatives see the impact on liberty but strangely taunt: “The government has already been doing that! If Bush wants to take it further, what’s the big deal? This is no time to rethink legal precedent.”

Robert Higgs, among many others, has showed that liberty has been losing ground to government over the years. Since 9/11, we have been in a vicious political cycle. The courts are defending constitutional liberties at the margins, but the overall trend is quite bad. A few months ago, some U.S. senators voted to enact a law that they believed to be unconstitutional. That’s an indication of the political climate. Bad.

South Carolina Makes a Mockery of Informed Consent

Yesterday the South Carolina House passed a bill mandating that women seeking abortions sign a sworn statement that they have seen an ultrasound of their fetus before having the abortion. Rep. Greg Delleney, the sponsor of the bill and a Republican from Chester, said, “I’m just trying to save lives and protect people from regret and inform women with the most accurate non-judgmental information that can be provided.” This is an amendment to the existing South Carolina informed consent law that requires doctors to give women information about fetal development and alternatives to abortion.

Informed consent is probably the most important principle of modern medicine. Its purpose is to enable autonomous decisionmaking. The South Carolina ultrasound law does everything but empower the patient. Offering a woman the option of an ultrasound as part of the informed consent process or doing one that is medically necessary is understandable, but forcing her to watch one as a prerequisite to having an abortion is an abuse of the informed consent process. The scene in A Clockwork Orange where Alex’s eyes are forcefully held open as he is shown images intended to recondition his social behavior comes to mind.

I believe abortion is morally wrong, but I also believe that current U.S. law correctly recognizes that, in a conflict between mother and fetus, the woman’s rights take precedence over those of her fetus. A human being’s rights under the law increase with maturity. That has been the tradition under Anglo-American law as well as worldwide for most of history.

The suggestion that a fetus should have the same legal standing as an adult is not only unprecedented, but unacceptable. In balancing the rights of fetuses with those of their mothers, women’s rights must always take priority; otherwise the law is treating women as second to, or of lesser value than, the fetuses they are carrying – the law would be treating 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 our views with our daughters, our female neighbors, and our friends. We must use the strength of our convictions and good clear reasoning to help them come to the right conclusions. To force someone to carry a pregnancy to term and give birth unwillingly is not far from slavery, no matter what the rationale. Pregnancy and birth are the most dangerous things most women will ever do in their lives. Not to give them the choice to escape those dangers, let alone plan their lives, is to treat them with the greatest disrespect.

There is no question that decisions about abortion are horrendously difficult, but the mere fact that such decisions are difficult doesn’t mean women aren’t fit to make them, or as is required by the South Carolina law, that women must be forced “for their own good” or “for the good of their fetuses” to undergo an unnecessary procedure and view images, as Alex was in A Clockwork Orange, that they don’t wish to see. Life is fraught with difficult decisions, many of them 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 and killing innocents. Women, like men, make decisions about what is best for their families and their way of life — unfortunately sometimes such decisions involve abortions.

It is a perversion of the concept of informed consent, let alone an unconscionable intrusion into the doctor-patient relationship, to impose a medically unnecessary procedure on women seeking abortions. Fetuses are potential children, not full grown adults, and women are full grown adults, not children. It is time we start treating both with the respect and dignity they deserve.