Topic: Law and Civil Liberties

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.

Chemerinsky on Parker v. District of Columbia

On March 14, The Washington Post ran an op-ed by Duke law professor Erwin Chemerinsky. I sent the following letter to the editor in response:

Prof. Erwin Chemerinsky claims [“A Well-Regulated Right to Bear Arms,” March 14] that the federal court of appeals for the D.C. Circuit “interpreted the Second Amendment as bestowing on individuals a right to have guns,” and as “creating a right for individuals to have firearms.” Yet the court took great pains to explain that the amendment neither creates nor bestows the right to keep and bear arms. According to the court, “The wording of the [amendment] indicates that the right to keep and bear arms was not created by government, but rather preserved by it,” and that it is “a right that pre-existed the Constitution like ‘the freedom of speech’” [emphasis in original].

The fact that both Prof. Chemerinsky and the Post’s editorial page (which had previously criticized the court’s opinion) missed that laboriously made distinction suggests that they might have read the opinion more closely before criticizing it.

Prof. Chemerinsky also claims that even if courts conclude that the Second Amendment protects an individual right to keep and bear arms, the D.C. gun ban should nevertheless stand. He argues that the Supreme Court should not apply “strict scrutiny” to laws that curtail the right to keep and bear arms because he sees no reason to distrust legislatures in this area. Instead, he argues that the courts should apply the less rigorous rational basis test to such laws, which they have applied to laws restricting the constitutionally protected right to property. Chemerinsky concludes that the D.C. gun ban should be upheld as being “rationally related to achieving [the] legitimate government purpose” of reducing gun violence.

I see serious problems with Chemerinsky’s case. First, the Constitution gives no indication that some of the rights it secures should receive less protection than others. Second, even if one were to accept that premise, the right to self-defense is leaps and bounds more important than the right to property or the right not to be discriminated against by the government on the basis of race. Even if we accept that some constitutional rights are more equal than others, then by Chemerinsky’s rationale the courts should apply strict scrutiny because there is ample reason to doubt any legislative act that infringes on so important a right. Third, as my colleague Bob Levy points out, “In Carolene Products, economic and property rights are relegated to second-tier status, but the rights expressly secured by the Bill of Rights – like the right to keep and bear arms – get top billing. So Chemerinsky’s suggestion that rational basis applies is at odds with Carolene.”

Finally, the D.C. gun ban should not survive even the rational basis test. To do so, it would have to be shown that an effective prohibition on the use of firearms for self-defense is a reasonable restriction on the right to keep and bear arms. Such a severe law is not reasonable, because it leaves peaceful citizens defenseless against violent criminals. And neither is it a mere restriction of the right to keep and bear arms; it is outright repeal. If the rational basis test can be used to uphold the repeal of a constitutionally protected right, then neither that test nor the Bill of Rights have any meaning. Chemerinsky’s logic would allow the District to abolish private property so long as it had a “rational basis” for doing so.

Is Hillary 2008 like IBM 1984?

The Washington Post has a big story on a “viral attack ad” about Hillary Clinton that’s been viewed more than a million times on YouTube. Jose Antonio Vargas and Howard Kurtz report:

It’s a “mash-up” of Ridley Scott’s 1984 Super Bowl commercial that portrayed IBM as an Orwellian Big Brother and introduced Apple’s Macintosh as the bright new vanguard of computing. But now it’s Big Sister, Clinton, vs. the upstart, Sen. Barack Obama.

The ad shows the oppressed masses staring in unison at a huge screen featuring Hillary Clinton as phrases from her deadly “conversations” lull the viewer into a stupor. As she drones on, a young blond woman in athletic gear twirls with a sledgehammer, then hurls it into Clinton’s giant image.

The ad concludes with the tagline “On January 14, the Democratic primary will begin. And you’ll see why 2008 won’t be like 1984.”

The most interesting point in the Post story is that Vargas and Kurtz were unable to find out who created and posted the ad. It ends with a plug for Barack Obama, but the Obama campaign denies any knowledge of it. On YouTube, the creator claims to be 59 years old and gives the user name ParkRidge47. He or she didn’t answer emails from the Post. But Vargas and Kurtz note that Hillary Rodham was born in Park Ridge, Illinois, in 1947, which makes her 59 years old.

Did she post the video herself? It hardly seems likely. But then – just last night, on FX’s “Dirt,” an actress gained great notoriety, then sympathy, then career advancement after a graphic sex tape featuring her was posted on the internet. And after much investigation, it was discovered that she posted it herself.

Still, it surely wasn’t Clinton or her supporters. It was created by someone who prefers Obama. And it’s a great example of anonymous pamphleteering for the internet age. As Jonathan Wallace pointed out in a Cato study, that’s a tradition that goes back to Cato’s Letters and the Federalist Papers. But our modern election laws have tried to stamp out anonymity. All expressions of political support are supposed to be disclosed, reported, and regulated. But why do we need to know who created this great ad? If you take offense at it, create a better one in response.

America Ranks Only 14th in Property Rights Index

In an interesting new report, the Property Rights Alliance has published the first index measuring property rights. Not surprisingly, the report finds that nations with stronger protections of property rights also have more prosperous economies. It was discouraging to read, though, that America is tied for 14th place, behind welfare states such as Denmark, Sweden, and Germany (though the U.S. beat France):

…countries in the higher rankings of the IPRI are primarily advanced industrialized economies, particularly Western Europe (Scandinavia) and North America. Countries that show a weak performance with respect to property rights protection are African and Latin American nations, in addition to the Central European nations. … better performing countries (1st Quartile in ranking) enjoy, on average, a GDP per capita income of more than eight times their counterparts at the lower quartile of the Index. … citizens of countries in the top quartile in the IPRI ranking enjoy a per capita income that is more than seven times that of their counterparts in the bottom quartile. … the correlation between the IPRI rating and GDP per capita amounts to a value of eighty-nine percent.

DHS Privacy Committee Meeting Tomorrow

The DHS Data Privacy and Integrity Advisory Committee meets tomorrow (Mar. 21) at the Crowne Plaza Washington National Airport in Arlington. 

The morning agenda is heavy on REAL ID, and we’ll hear from Jonathan Frenkel, a Senior Policy Advisor at DHS who was one of the key officials responsible for writing the recently issued regulations.