Topic: Law and Civil Liberties

Liberté, Égalité, Fraternité - A Package Deal

News that France will suspend football (soccer) games at which “La Marseillaise” has been booed reveals how the famous credo of that country has fallen into disuse.

A liberal approach toward speech - giving Tunisians in France the liberté to boo their country of residence - would communicate powerfully that France is stronger than such slights - yet still welcoming of Tunisians as frères et soeurs.

The booing wouldn’t last long, as the Tunisians would recognize and appreciate the égalité légale accorded them by France.

Fin.

What They Should Talk About

The Chicago Tribune quotes me this morning on issues the candidates aren’t talking about and may not anticipate. It’s true that issues are likely to arise in the next four years that no one anticipates today. But there are also some issues that are pretty easy to identify that the candidates aren’t being pressed to talk about. Some of those include:

  • The proper role and scope of the federal government. Both candidates have a laundry list of things they want the federal government to do, and maybe they could each mention something they don’t want it to do. But what’s the framework behind their policy choices? What should government do? What should be left to state and local governments, and what should be left to the non-coercive sectors of society? What’s the proper and/or constitutional role and scope of the federal government?
  • The looming entitlements crisis. Entitlements are already about 40 percent of the federal budget. In 20 years they may double as a share of national income. Can we afford that? Do we want a tax burden that high? Do we want that many people dependent on a check from the federal government? Do we have the nerve to say that transfer payments should be cut? Tough choices that nobody wants to confront, partly because each politician hopes that the problem won’t explode until he leaves the scene.
  • We now have 2.5 million people in prison. Isn’t that something to talk about? Should they all they be there? Some 400,000 of them are nonviolent drug offenders. A million arrests don’t stop people from using drugs, and meanwhile the war on drugs costs us some $40 billion a year, increases crime rates, destroys poor neighborhoods, makes criminals out of lots of peaceful people, engenders civil liberties abuses, and funds the Taliban and other nefarious groups abroad.

Thugocracy?

Michael Barone on “The Coming Liberal Thugocracy:”

In September, St. Louis County Circuit Attorney Bob McCulloch and St. Louis City Circuit Attorney Jennifer Joyce warned citizens that they would bring criminal libel prosecutions against anyone who made statements against Mr. Obama that were “false.” I had been under the impression that the Alien and Sedition Acts had gone out of existence in 1801-‘02. Not so, apparently, in metropolitan St. Louis. Similarly, the Obama campaign called for a criminal investigation of the American Issues Project when it ran ads highlighting Mr. Obama’s ties to Mr. Ayers.

These attempts to shut down political speech have become routine for liberals. Congressional Democrats sought to reimpose the “fairness doctrine” on broadcasters, which until it was repealed in the 1980s required equal time for different points of view. The motive was plain: to shut down the one conservative-leaning communications medium, talk radio. Liberal talk-show hosts have mostly failed to draw audiences, and many liberals can’t abide having citizens hear contrary views. …

Corporate liberals have done their share in shutting down anti-liberal speech, too. “Saturday Night Live” ran a spoof of the financial crisis that skewered Democrats like House Financial Services Chairman Barney Frank and liberal contributors Herbert and Marion Sandler, who sold toxic-waste-filled Golden West to Wachovia Bank for $24 billion. Kind of surprising, but not for long. The tape of the broadcast disappeared from NBC’s Web site and was replaced with another that omitted the references to Mr. Frank and the Sandlers. Evidently NBC and its parent, General Electric, don’t want people to hear speech that attacks liberals.

Read the whole thing. Conservatives are not well-positioned to lodge complaints. Especially McCain.

Cato Law on the Road

Now that we’ve released the Cato Supreme Court Review and the Court has started its new term, I’m on the road quite a bit giving speeches and participating in debates.  Here’s the schedule for my next trip, which starts tomorrow in Atlanta.  All events are open to the public (though the lawyers’ events charge admission):

10/14 at 12pm - Atlanta Federalist Society Lawyers - Kilpatrick Stockton, 1100 Peachtree St.

10/14 at 4pm - Emory Law School - 1301 Clifton Rd., Atlanta

10/15 at 12pm - University of Florida Law School - 2nd Ave. & 25th St., Gainesville

10/15 at 4pm - Florida State University - 425 W. Jefferson St., Tallahassee

10/16 at 11:30am - Florida Coastal School of Law - 8787 Baypine Rd., Jacksonville

10/16 at 5:30 pm - Orlando Federalist Society Lawyers - The Citrus Club, 255 S. Orange Ave., 18th Floor

10/20 at 12pm - University of Miami Law School - 1311 Miller Dr., Coral Gables

If you come to one of these events because you learned of it from this blog post, please do come up and introduce yourself.

More Eavesdropping

Brian Ross of ABC News is reporting allegations from two whistleblowers who say the federal government eavesdropped on hundreds of international phone calls between Americans. The surveillance continued even when there was no indication of espionage or terrorism.

Question for the White House: Is this another disgraceful news report? After all, it reminds the terrorists that the NSA listens in on calls.

Questions for CIA director Michael Hayden and NSA director Lt. General Keith Alexander: When you say the ‘law’ is always followed, would you remind us as to what, exactly, constitutes illegal eavesdropping? And how many government officials and employees have been disciplined, discharged, or prosecuted for illegal surveillance over the past 10 years?

Question for Congress: What does Sen. Jay Rockefeller (D-WV) mean when he says an oversight hearing may be necessary? How many whistleblowers have to come forward to warrant a hearing?

For more, read Glenn Greenwald. For related Cato scholarship, go here.  

Litigating the 4th Amendment in the Supreme Court

In this first week of the new term, the Supreme Court heard two Fourth Amendment cases.  The first, Herring v. United States, asked whether evidence obtained based on an erroneous arrest warrant (called in by a police clerk from a neighboring county) should be suppressed.  The second, Arizona v. Gant, looked into whether the long-standing “Belton“ rule that a police officer may search the passenger compartment of an arrested person’s car should be set aside when the the search – typically justified on “officer safety” grounds – occurs after the arrested person is handcuffed and locked in the back of a squad car.  The easy legal answers would seem to be yes and yes (though I have qualms about the exclusionary rule – which is fairly unique to America – as a matter of policy), but then it’s hard to craft a readily administrable legal rule that would get you there without creating an equally unjust result in other circumstances.  Hard cases, as they say, make bad law.

But my point is not to argue the finer points of Fourth Amendment doctrine.  Instead,  it is to highlight the difficulty of arguing those points in the rarefied air of the Supreme Court.  As the SCOTUSblog analysis of the arguments in the above cases concluded:

The arguments in these cases illustrate the complexity of arguing Fourth Amendment cases before this Court.  It is not simply a question of appealing to Justices’ support for, or skepticism of, the exclusionary rule or broad discretion for law enforcement officers.  Many of the Justices are also concerned about need for clear, administrable rules, while others simultaneously resist the inflexibility and illogical results a bright-line rule inevitably gives rise to.  And while some Justices are more than ready to abandon old decisions and doctrines they believe were wrongly adopted or no longer make sense (be it the exclusionary rule or Belton) others feel strongly about the Court’s obligation to adhere to its prior precedent absent strong justification for departure.  And to make matters worse, these various considerations often point in different directions and cut across the traditional liberal-conservative lines on the Court: Justices Breyer and Alito worry about stare decisis, while Justice Thomas is much less concerned; Justice Kennedy wants a rule that makes pragmatic sense, while Justice Scalia doesn’t care if the rule is nonsensical if it has a historical pedigree; Scalia worries about a vague standard for applying the exclusionary rule, but the Chief Justice not so much.  In the end, the cross-currents can sometimes give advocates more to work with in crafting arguments that can attract five votes.  But at the same time, it sometimes makes the task of holding together a coalition quite complicated.

In short, separating out death penalty cases, it is in criminal law where the justices can be the least predictable.

Say It Ain’t So, NCC!

Apparently, former President Bill Clinton has been chosen as the next chairman of the National Constitution Center in Philadelphia. In terms of unintentional irony, that’s right up there with “The Nixon Center for Peace and Freedom.”

In the waning days of his presidency, Clinton said of the impeachment struggle that he was, “proud of what we did there, because we saved the Constitution of the United States.” Like his successor, he seemed to see the Constitution in highly personal terms–as a document designed to protect his powers and prerogatives. When it came to others’ rights, eh, not so much.

Here are a few Cato publications you can peruse to get a sense of President Clinton’s fidelity to the Constitution: Tim Lynch’s Dereliction of Duty: The Constitutional Record of President Clinton, my paper on Clinton’s Imperial Presidency , and Roger Pilon’s edited volume The Rule of Law in the Wake of Clinton. Tim Lynch summed it up succinctly:

Although President Clinton has expressed support for an “expansive” view of the Constitution and the Bill of Rights, he has actually weakened a number of fundamental guarantees, including those of free speech and the right to trial by jury and that against double jeopardy. He has also supported retroactive taxes, gun control, and warrantless searches and seizures. The president’s legal team is constantly pushing for judicial rulings that will sanction expansions of federal power. The Clinton White House has, for example, supported the federalization of health care, crime fighting, environmental protection, and education. Clinton also claims constitutional authority to order military attacks against other countries whenever he deems it appropriate. President Clinton’s record is, in a word, deplorable. If constitutional report cards were handed out to presidents, he would receive an F.

Of course, if we were to grade on a curve, we’d have to bump Bill up a few notches compared to the man who followed him. One of “Lowi’s Laws”–maxims coined by the political scientist Theodore J. Lowi–was “the Law of Succession: Each president contributes to the upgrading of his predecessors.” And George W. Bush’s constitutional record certainly makes Bill Clinton’s look less awful by comparison. Tim and I examined the Bush constitutional record in this 2006 White Paper.

But we shouldn’t grade on a curve. And an institution like the NCC, which otherwise does fantastic work “increasing public understanding of, and appreciation for, the Constitution, its history, and its contemporary relevance,” shouldn’t have a man who repeatedly violated his oath of office as its chairman. In fact, choosing any modern president as NCC chair (Clinton succeeds George H.W. Bush as chairman) is utterly wrongheaded. The modern presidency is an office that has burst its constitutional bonds, so virtually any living ex-president has already violated the document the NCC exists to promote.