Most people think of political and civil freedoms when it comes to human rights. And the two are fundamental, to be sure. But most governments which violate these forms of individual liberty also suppress religious freedom.

Indeed, there is a good argument for treating religious liberty as the first freedom. If a government is unwilling to protect basic freedom of conscience when it comes to religious faith, then it is unlikely to tolerate political free-thinking either. In contrast, persuading repressive governments to carve out room for religious worship and practice may act as an important step in creating protected personal space.

Unfortunately, many nations violate this idea. The U.S. Commission on International Religious Freedom issues an annual report summarizing the state of religious liberty around the globe. It makes for sober reading.

The USCIRF recently highlighted 27 nations. It recommended that the State Department designate 13 nations, those responsible for "particularly severe" violations of religious liberty, as "countries of particular concern" (CPCs). The Commission named another 11 states to its "Watch List" for engaging in "serious violations" and thus deserving close monitoring. Another three were cited for tolerating abuses and thus were deemed to warrant attention. The State Department tends to follow most USCIRF recommendations, but often with a political twist: in January it provided waivers for Saudi Arabia, America's number one source of oil, and Uzbekistan, seen by Washington as an important military partner.

The Commission's recommended CPCs are Burma, North Korea, Eritrea, Iran, Iraq, Nigeria, Pakistan, China, Saudi Arabia, Sudan, Turkmenistan, Uzbekistan, and Vietnam.

Burma (or Myanmar) is a top contender on anyone's list of most misgoverned lands. Conditions have worsened over the past year. The Commission reported: "Burma's military regime continued its policy of severely restricting religious practice, monitoring the activity of all religious organizations, and perpetuating or tolerating violence against religious leaders and their communities." Largely Christian ethnic groups, such as the Karen and Karenni, continue to suffer in a war which has raged for decades in eastern Burma.

The Democratic People's Republic of Korea likely is worse. Observed the USCIRF: "there is little evidence that the freedom of thought, conscience, and religion exists in North Korea." The regime uses government-controlled religious federations to advance its political objectives. Alas, "anyone discovered engaging in clandestine religious practice faces official discrimination, arrest, imprisonment, and possibly execution."

Eritrea is another top persecutor. That government, explained the Commission, "continues to engage in systematic, ongoing, and egregious violations of religious freedom." Most at risk are members of faiths outside of the four officially recognized religions: Sunni Islam, and Coptic, Catholic, and Evangelical Christian. Some of the violations of religious freedom reflect an attempt to protect the Coptic Church, which has links to the government, from new evangelical and Pentecostal denominations.

Iran is one of the great Islamic persecutors. The USCIRF reported that "The government of Iran continues to engage in systematic, ongoing, and egregious violations of religious freedom, including prolonged detention, torture, and executions based primarily or entirely upon the religion of the accused." Unfortunately, just as political freedom is being circumscribed, religious liberty has been deteriorating. At particular risk are Baha'is, Sufi Muslims, and evangelical Christians. The situation likely will grow worse as the regime's political base shrinks, forcing it to increasingly rely on force to survive.

One of the greatest — and most tragic — ironies of the Iraq war is that through it Washington set in motion the destruction of the historic Christian community in that ancient land. Noted the Commission, "particularly since 2006, there have been alarming numbers of religiously-motivated killings, abductions, beatings, rapes, threats, intimidation, forced resettlements, and attacks on religious leaders, pilgrims, and holy sites." Everyone is vulnerable, especially during violent surges, but religious minorities, particularly Christians, Sabean Manaeans, and Yazidis, are at greatest risk.

Communal violence in Nigeria is common, yet, warned the USCIRF, "The response of the government Nigeria to persistent religious freedom violations and violent sectarian and communal conflicts along religious lines has been inadequate and ineffectual." Additional problems include "the expansion of sharia (Islamic law) into the criminal codes of several northern Nigerian states; and discrimination against minority communities of Christians and Muslims."

Pakistan, one of the American government's most important allies, is home to what the Commission termed "the largely unchecked growth in the power and reach of religiously-motivated extremist groups." However, religious persecution precedes recent events. Discriminatory laws are in place and, reported the USCIRF: "Sectarian and religiously-motivated violence continues, particularly against Shi'a Muslims, Ahmadis, Christians, and Hindus, and the government's response continues to be insufficient, and in some cases, is outright complicit."

Although religious repression has ebbed since the days of the Cultural Revolution, the People's Republic of China "engages in systematic and egregious violations of the freedom of religion or belief," explained the Commission. There is a "growing 'zone of toleration' for religious worship and charitable activities," but the authorities continue to attempt to maintain control of religious practice. Step outside of the narrow prescribed limits, and "some religious adherents were detained, imprisoned, fined, beaten, and harassed."

Saudi Arabia, noted for its suppression of political dissent and women's rights, also is essentially totalitarian when it comes to religious worship. Despite promises of reform, the royal government "persists in banning all forms of public religious expression other than that of the government's own interpretation of one school of Sunni Islam and even interferes with private religious practice." According to the Commission, the regime also "continues to be involved in supporting activities globally that promote an extremist ideology, and in some cases, violence toward non-Muslims and disfavored Muslims."

During Sudan's civil war, which lasted until 2005, the regime in Khartoum, explained the USCIRF, was "the world's most violent abuser of the right to freedom of religion or belief." Even today "The government of Sudan commits egregious and systematic violations of freedom of religion or belief in the areas under its control."

Although repression in Turkmenistan has eased since the death of President Saparmurat Niyazov, the Commission cited the government for "its systematic, ongoing, and egregious violations of religious freedom." Indeed, religious practice was virtually banned as Niyazov's personality cult expanded.

Another problem Central Asian republic is Uzbekistan. Since gaining independence from the Soviet Union, reported the USCIRF, "fundamental human rights, including freedom of religion or belief, have been under assault." Backed by a willingness to arrest dissenters, the government "severely limits the ability of religious communities to function and facilitates the Uzbek government's exercise of a high degree of control over religious communities and the approved manner in which the Islamic religion is practiced."

There has been some progress in Vietnam, leading the Bush administration to lift the "country of particular concern" designation in 2006, as part of Congress' approval of that nation's entry in the World Trade Organization. Yet, observed the Commission, "Individuals continue to be imprisoned or detained for reasons related to their religious activity or religious freedom advocacy; policy and government officials are not held fully accountable for abuses; independent religious activity remains illegal; and legal protections for government-approved religious organizations are both vague and subject to arbitrary or discriminatory interpretations based on political factors." Further, repression continues apace for some smaller religious groups.

These are merely the worst persecutors. The Commission placed on its Watch List Afghanistan, Belarus, Cuba, Egypt, Indonesia, Laos, Russia, Somalia, Tajikistan, Turkey, and Venezuela.

Conditions have been worsening in Afghanistan with the resurgence of the Taliban. The government of Belarus has systematically violated human rights since it emerged from the break-up of the Soviet Union. The Castro regime in Cuba treats religious organizations as a threat to its authority. Discrimination and violence against Coptic Christians and "non-conforming Muslims" is rife in Egypt. Indonesia has made progress towards democracy, but violence against religious minorities has increased, often with the acquiescence or even tacit support of the authorities.

In Laos, reported the USCIRF, "there have been arrests, detentions, forced renunciations of faith, and forced evictions from villages." The Putin/Medvedev regime has expanded state control over religious groups in Russia. There is no effective government in Somalia, where "radical interpretations of Islam are increasingly manifested." Attacks on religious liberty have been growing more serious in Tajikistan. Turkey limits the practice of Islam and discriminates against non-Muslim faiths. In Venezuela President Hugo Chavez's increasingly authoritarian tendencies have, warned the Commission, "created an environment where Jewish and Catholic religious leaders and institutions are at risk of attack."

Finally, the USCIRF pointed to Bangladesh, Kazakhstan, and Sri Lanka as worthy of scrutiny. All have hosted threats to religious liberty and sometimes tolerated violence against religious believers.

Although Washington cannot make fighting religious persecution a central element of U.S. foreign policy, it can include religious liberty as an essential aspect of its promotion of human rights. In particular, any dialogue with Muslim governments concerned about the treatment of Islam in the West should include a discussion of how those same regimes treat Jews, Christians, Baha'is, and other religious minorities. If the authorities in other nations are unwilling to protect the most basic freedom of conscience regarding religious faith, they are unlikely to be reliable defenders of broader political and civil liberties.

And on CNN, Colin Powell chimed in with his advice to black children: "When you're faced with an officer who is trying to do his job and get to the bottom of something, this is not the time to get in an argument with him. I was taught that as a child."

Moreover, when President Obama insisted that the situation surrounding the arrest of the Harvard professor was a "teachable moment," former New York Mayor Rudy Giuliani said: "He's actually right. It is teachable." And Giuliani, customarily brusque, told people, including professor Gates, across the land: "Here's the lesson ... shut up when a cop is asking you questions!" (Fox News, July 31).

Clearly, Mr. Giuliani remains unteachable on this subject. As I reported during his dramatic mayoral career, none of his predecessors since 1958 (when I began covering City Hall) had so alienated black New Yorkers by urging his police to engage in large-scale stop-and-frisks of predominately black residents without charging them with a crime. For a time, he also refused to meet with black leaders.

As for blacks' encounters with police nationally, in 1995, Henry Louis Gates Jr. (before he became a household name) wrote in the Oct. 23 New Yorker magazine: "It's a commonplace that white folks trust the police and black folks don't. Whites recognize this in the abstract, but they're continually surprised at the depth of black wariness. They shouldn't be."

Apparently, Cambridge, Mass., police Sgt. James Crowley missed that issue of The New Yorker.

In the same article, Gates added that "blacks – in particular black men – swap their experiences of police encounters like war stories." Almost as soon I got to know and hang out with black jazz musicians decades ago, I heard a lot of those war stories. I hope, but am skeptical, that a lasting result of Gates' manacling will be the gradual decline in the number of these war stories. In all the continued coverage across the nation of the Gates bust, the one story that gave some substance to my hope appeared in the July 26 issue of the Long Island newspaper, Newsday: "Nassau, Suffolk cite training against racial profiling."

Reporters Zachary Dowdy and Rocco Parascandola told of how the "Nassau and Suffolk police departments said they aggressively work to avoid racial profiling through a medley of training programs and updates for officers."

In Nassau, along with 30 hours of training on cultural diversity in the police academy, a much more enduring practice is "data collection program that requires officers to note the race and ethnicity of motorists they stop on the road."

Detective Lt. Kevin Smith adds that this data is periodically studied to determine if the police department engages in racial profiling.

Furthermore – and I hope other police departments will take notice – Suffolk County Executive Steve Levy told Newsday: "Last year, for the first time, we completed a pilot program where we collected statistics to help identify a baseline for traffic stops and to red-flag officers who differed significantly from peers when making these stops."

What then? "We shared," said Levy, "these data with individuals who were above the norm, sought an explanation, and then possibly referred those individuals for additional training."

This postgraduate education for police officers, if extended nationally and to police on the streets as well, could eventually lead to fewer war stories among black males about the humiliation, and worse, of "driving while black."

I remember that several years ago, in New York City, one of the very highest-ranking officials at One Police Plaza, headquarters of what each mayor calls "New York's finest," was driving, in civilian clothes, a few blocks away from his office. He was stopped in his expensive-looking car apparently because of his color. It was so commonplace a story that it only lasted for two news cycles.

On the street where I live in New York's Greenwich Village, The New School university is on the corner. One morning, I saw two young black men, dressed like preppies. One was carrying a resplendent black briefcase, which I immediately envied, and the other was saying to him: "You probably don't have the receipt. When a cop asks where you got it," pointing to the briefcase, "give him the name of the store. They probably have a record of it."

In the increasingly culturally diverse Big Apple, those two students were quite conscious of "walking while black."

When he was led off his front porch in manacles, professor Henry Louis Gates Jr. reportedly yelled: "This is what happens to black men in America."

What nerve!

John Timoney, Miami's police chief, is a hard-line, law-and-order cop whom I've criticized for his mass arrest of nonviolent protesters - when he was police chief in Philadelphia - without a flicker of probable cause. But I respect what he told Maureen Dowd of The New York Times (July 26) about Gates' arrest:

"There's a fine line between disorderly conduct and freedom of speech. It can get tough out there, but I tell my officers, 'Don't make matters worse by throwing handcuffs on someone. Bite your tongue ..."'

Moreover, as Ronald Hampton, executive director of the National Black Police Association, said after the handcuffing of Henry Louis Gates: "Black men's experience with law enforcement in this country is very different than that experience of whites" (National Public Radio, July 24).

In July of last year, a New York Times/CBS News poll asked: "Have you ever felt you were stopped by the police just because of your race or ethnic background?" Yes, said 66 percent of black men. Also responding affirmatively were 9 percent of white men (New York Times, July 24).

But what about this particular arrest, which has ignited a continuing national debate? The Massachusetts American Civil Liberties Union affiliate reminds us (Slate.com, July 22) claiming racial bias while protesting an arrest is political speech, the core of the First Amendment - and exercising political speech is not disorderly conduct. That was the crime that Gates was charged with when arrested. The Cambridge Police Department, while standing behind Crowley, dropped that charge in the national gust of publicity, and also, I believe, the department knew it would not stand up in court.

Almost lost in the frenzy was Atlanta police officer M. Tate (he wouldn't give his first name) who told the New York Times (July 24) how his police department has trained him not to lose his cool when subjected to angry name-calling. An arrest he said is justified when:

"The set of circumstances ... will lead a reasonable and prudent person to believe that a crime has or is about to be committed and that the person in question is involved in a significant manner." Handcuffs are not warranted, he added, by anything short of that.

Yet Gates' arresting officer, Crowley, has - for the past five years - been training officers at the Lowell Police Academy in how not to engage in racial profiling. But by the time he handcuffed Gates in Cambridge, Crowley knew Gates was in his own house and there was no burglary in progress. If Crowley wasn't racially profiling Gates - as the professor believes he was (New York Daily News, July 25, lead editorial) - then he busted him for political speech.

The sergeant needs more training.Bob Herbert reports (New York Times, Aug. 1) only five or six minutes elapsed between police alert to a possible break-in and the handcuffing of nonviolent Gates.

What was Crowley teaching the Lowell police?

While Obama has been criticized for increasing the media frenzy by charging that Crowley acted "stupidly" (a word he has recanted), the president did otherwise make sense:

"I think we know, separate and apart from this incident ... that there's a long history in this country of African-Americans and Latinos being stopped by law enforcement disproportionately."

This reporter, having covered the police in New York City since 1958, can further define what Obama refers to as disproportionate police stops of blacks.

In May of this year, the New York Civil Liberties Union (NYCLU) reported, based on police data, that New York City Police Department officers "stopped and interrogated New Yorkers 171,094 times between January and March" - and more than 151,000 of those individuals were sent on their way without charges. Approximately 89,000 of those stopped were black, 56,000 were Latino, and 16,000 were white.

Donna Lieberman, the head of the NYCLU, added: "These New Yorkers' personal information is now stored in an NYPD database."

"The NYPD is, in effect, building a massive database of black and brown New Yorkers," said NYCLU Associate Legal Director Christopher Dunn. Based on what information on those who are not charged? Their color!

Not incidentally, Barack Obama, when he was an Illinois state senator, sponsored legislation to track racial breakdown of drivers stopped by the police. The term, "Driving While Black," is familiar to blacks around the country protesting "disproportionate" police stops on the road and in their streets

Newsday (July 30) quotes 44-year-old Julian Gobourne, black, an information technologist for a bank, that "whites don't understand racial profiling because white people don't experience it negatively."

Accordingly, a July 29 Wall Street Journal/NBC poll disclosed that 4 percent of blacks blamed Mr. Gates for the notorious arrest while 30 percent targeted Crowley. Among white respondents, 32 percent placed responsibility for the arrest on Gates and 7 percent blamed Crowley.

If this "teachable moment" is intended to show how far we still have to go to enter a post-racial society, it has succeeded. To be continued.

In another context, Winston Churchill urged: "Never ever give up!" Nor should we to ensure the Constitution's equal protection of the laws.

The law would expand federal jurisdiction from crimes motivated by the victim's race, color, religion, or national origin to include the victim's gender, sexual orientation, gender identity, and disability. It also disconnects the prosecution from traditional civil rights statutes such that whole categories of intrastate crimes successfully prosecuted by state courts would become the business of the federal government.

There are two problems with the proposed law. First, crimes motivated by racial animus, misogyny, or homophobia are already recognized as atrocities and prosecuted to the fullest extent of the law. No new law is needed. Second, making the ideology of the perpetrator a centerpiece of the trial doesn't deter like-minded extremists; it encourages them.

We don't have to look far through today's headlines to see that the current system works. Those who commit crimes of violence motivated by extremist ideology are consistently locked up by a rule of law that criminalizes their actions, not their ideas.

Scott Roeder is accused of shooting abortion doctor George Tiller to death; he is sitting in jail awaiting prosecution. The same goes for Abdulhakim Mujahid Muhammad, who shot up an Army recruiting station in Arkansas and killed Pvt. William Long. As soon as Holocaust Museum shooter James von Brunn is out of the hospital, he can join them.

Each of these depraved individuals saw a world out of touch with their values, and there are others like them. The difference between these three individuals as lone radicals and the broader inspirations for antiabortion, radical Islamic, and anti-Semitic groups is how they are perceived by their audience. Not the public at large, but the audience of like-minded individuals who might copy their actions.

A smart prosecutor would not go down the road of a suspect's approved and disapproved motivations to kill someone. Murder is always murder most foul. If you try extremists or domestic terrorists for their actions, not their ideas, they are no longer martyrs. No longer heros, freedom fighters, nor revolutionaries. They are criminals.

With these kinds of defendants, the worst thing you can do is charge them under a statute that criminalizes their ideas. When the whole point of their violence is to stir up like-minded people, hate-crime charges are so counterproductive they border on the insane.

The indicted murderer can now proudly stand in court and espouse why it was necessary to kill someone in cold blood. The prosecutor, claiming that a crime for the sake of an idea is somehow worse than a crime for money or a crime of passion, will rail against the racist/sexist/homophobic nature of the defendant.

In a sense, the murderer then wins. He can blame the new law that protects a certain class of people more than others. This is the same class of people that he says runs or exerts undue influence over the government.

Worse yet, the proposed legislation picks favorites among the public. Mr. Von Brunn could arguably be charged under the proposed hate-crime legislation because he targeted a Jewish museum and shot an African-American guard. Mr. Roeder's crime had the same death toll, but because there is no hate-crime protection for abortion providers he is outside the hate-crime ambit (though arguably subject to prosecution under a separate overfederalization of violence against abortion providers).

Mr. Muhammad wanted to kill an American soldier and he did, but it's not a hate crime unless he was specifically looking for a Christian, female, or gay soldier.

The folly of this legislation was put on display in recent Senate Judiciary hearings. Sen. Ben Cardin (D) of Maryland said that hate crimes not only hurt the victim, they diminish the whole community.

If this is the case, then the best remedy is for the community to reinforce its values and make itself whole by prosecuting a violent criminal for his actions.

If there is a subset of the local population that shares the views that drove the perpetrator to commit his crime, then the imposition of federal jurisdiction based solely on the motive of the criminal engenders resentment and encourages others to mimic his behavior.

What is being proposed is feel-good legislation that gives ideologues more incentive to commit their crimes and a bigger platform for their views. The federal government should not create an aid program for hatemongers.

Although validating the promotion of the 18 firefighters (17 white and one Hispanic) - despite New Haven having discarded the test because no black aspirants made the cut - the court declined to deal with the winners' citation of the 14th Amendment that forbids any state to "deny to any person within its jurisdiction the equal protection of the laws."

Instead, the majority of the justices focused on a statute, Title VII of the 1964 Civil Rights Act, that bans intentional discrimination because of "race, color, religion, sex or national origin." The court's decision included another law, codified by Congress in 1991, that bars employment tests resulting in a "disparate (negative) impact" on hiring minorities unless the employer can prove that the tests were job-related and necessary to its business.

But Justice Antonin Scalia, though concurring, cited a 1995 Supreme Court case, Miller v. Johnson - ignored by the majority - stating "the Government must treat citizens as individuals, not as simply components of a racial, religious, sexual or national class."

I began my controversial opposition to class-based affirmative action years ago in the course of an interview with Justice Douglas while I was covering early affirmative-action cases. On that morning, he was very angry with his brethren because the court's majority had punted on an affirmative-action case, DeFunis v. Odegaard - declaring it moot (no opinion issued).

Marco DeFunis, white, had been denied admission to the University of Washington Law School while 44 minority candidates were welcomed, 36 of whom had lower scores than DeFunis on the Law School Admission Test (LSAT). Charging reverse discrimination, DeFunis sued Dr. Charles E. Odegaard, then president of the University of Washington.

When Douglas' brethren declined to rule on the case, he vigorously dissented, telling me when we met: "This case is not moot! This is an issue that is inevitably going to come before us, and so we should address it now."

Instead of race-based admission policies, Douglas argued in his dissent, decisions should be made "on the basis of individual attributes, rather than according to a preference solely on the basis of race."

In subsequent public debates I had with ardent supporters of class-based affirmative action, I brought Justice Douglas into the stormy discussion, quoting from his dissent:

"Such a policy (based on individuals) would not be limited to blacks or Chicanos or Filipinos, or American ... groups such as these may in practice be the principal beneficiaries of it. But a poor Appalachian white or a second-generation Chinese in San Francisco or some other American whose lineage is so diverse as to defy ethnic labels may demonstrate similar potential and thus be accorded favorable by the (admissions) committee."

What did Douglas mean by "potential?"

He cited "a black applicant who pulled himself out of the ghetto into a junior college may thereby demonstrate a level of motivation, perseverance and ability that shows an admissions committee more promise for law study than the son of a rich alumnus who achieved better grades at Harvard."

Before and after the High Court's decision on the New Haven firefighters, there have been many speculations on whether Judge Sonia Sotomayor's having voted in the lower courts to summarily dismiss the white firefighters' case would affect her nomination to the Supreme Court.

In view of her other more considered rulings that do not narrowly categorize her constitutional views, I think she will ascend to the court. But does she remember what she said to a group of students in 1994 about the Brown v. Board of Education Court decision? She told them: "Brown said to the country it's against our Constitution to treat each other differently. Everybody has to be given the same opportunity ... look around the room. There's a lot of colors in this room."

Each one of them an American.

The named plaintiff in Ricci v. DeStefano, Frank Ricci, got to the heart of the court's decision on National Public Radio (June 29): "I think this is just proof positive that people should be treated as individuals and not statistics. And that won out at the Supreme Court this day."

Not all the way to a post-racial society, Justice William O. Douglas' 14th Amendment views on individuals' equal protection of the laws have yet to be considered by the Roberts court.

In a sardonic response to the president and to those "torture memos" lawyers, Dahlia Lithwick, legal affairs columnist for Slate (April 17), says those lawyers tell us that "it isn't torture if you can get over it."

More somberly, Caroline Fredrickson, director of the ACLU's Washington legislative office, says plainly: "Our government engages in torture. There were vast human rights abuses that took place during the Bush administration. And we're just moving on?"

It's time to bring President Ronald Reagan into this increasingly heated debate - not only in this country but also among some of our allies who believe, as does our Senate Armed Services Committee, that U.S. torture policy was an effective recruiting tool for the terrorists.

International lawyer Scott Horton - on his Harper's magazine Web site, "No comment" (May 6), recalls that Reagan vigorously championed U.S. ratification of the international Convention Against Torture, which he signed in 1988. This treaty is the primary international foundation of anti-torture law, and Reagan acclaimed its having marked "a significant step in the development ... of international measures against torture and other inhuman treatment or punishment.

"Ratification of the Convention by the United States," Reagan continued, "will clearly express United States opposition to torture, an abhorrent practice unfortunately prevalent in the world today."

And, I remind Obama, Reagan cited the Convention's establishment of an agreement "for international cooperation in the criminal prosecution of tortures (by) relying on so-called 'universal jurisdiction,"' requiring each nation signing the Convention "to prosecute torturers who are found in its territory or to extradite them to other countries for prosecution." This includes officials who authorized torture.

As I write this, Spain, under "universal jurisdiction," has begun criminal proceedings against six high-level officials in the Bush administration - among them "torture memos" writers John Yoo and Jay Bybee - for involvement in the use of torture in our prison in Guantanamo Bay.

The only way for Spain to stop this prosecution is if there is a similar process actually under way in the United States. That is Spanish law. But Obama would still rather look forward than backward.

I would also like to bring into this conversation about restoring our reputation not only in the world but, most importantly, among future generations of Americans - a history teacher and college counselor at Friends' Central School in Wynnewood, a suburb of Philadelphia. What Grant Calder tells his students is important for all of us who care about American history, past, present and future.

Fortunately, Calder teaches in a school where American history is still being taught - instead of the time-devouring teaching for tests to meet the pressures of local, state and federal mandates. In "Deciding what we won't do" (philly.com/inquirer/opinion), he tells of reminding his students of times of fear in our history when many Americans - including local, state and federal legislators - strongly believed they "were justified in believing that Soviet leaders hated capitalists and their institutions - and were bent on destroying them."

The "Red Scare" here began in the 1920s and crested with the signing of the Hitler-Soviet pact in 1939. As Calder told his class, George Kennan - an important figure in American diplomatic history - was serving as chief of mission at the U.S. Embassy in Moscow when he wrote in 1946 what was, for a time, a secret memorandum, "The Long Telegram." Sent to Secretary of State George Marshall, it was signed "X."

Kennan was clearly under no illusions as to the dangers of that cruel and often inhuman dictatorship, but, as Calder emphasized to his students, Kennan urged:

"We must have courage and self-confidence to cling to our own methods and conceptions of human society. After all, the greatest danger that can befall us in coping with this problem of Soviet communism, is that we shall allow ourselves to become like those with whom we are coping."

While unquestionably desiring to keep us safe, the Bush-Cheney team did not remember that lesson, if they ever knew it. If there is not an honest, thorough investigation of their torture policy, future American administrations will also not have learned - and acted on - Reagan's and Kennan's wisdom. On Sept. 12, 2001, President George W. Bush pledged: "We will not allow this enemy to win the war by changing our way of life or restricting our freedoms." He later repeatedly assured the world, "We do not torture." Those pledges were badly broken, to our discredit throughout the world.

This bill would make it a federal crime to willfully cause bodily injury (or try to) because of the victim's actual or perceived "race, color, religion, national origin, gender, sexual orientation, gender identity or disability" - as explained on the White House Web site, signaling the president's approval. A defendant convicted on these grounds would be charged with a "hate crime" in addition to the original crime, and would get extra prison time.

The extra punishment applies only to these "protected classes." As Denver criminal defense lawyer Robert J Corry Jr. asked (Denver Post April 28): "Isn't every criminal act that harms another person a 'hate crime'?" Then, regarding a Colorado "hate crime" law, one of 45 such state laws, Corry wrote: "When a Colorado gang engaged in an initiation ritual of specifically seeking out a "white woman" to rape, the Boulder prosecutor declined to pursue 'hate crime' charges." She was not enough of one of its protected classes.

Corey adds that the state "hate crime" law - like the newly expanded House of Representatives federal bill - "does not apply equally" (as the 14th Amendment requires), essentially instead "criminalizing only politically incorrect thoughts directed against politically incorrect victim categories."

Whether you're a Republican or Democrat, think hard about what Corry adds: "A government powerful enough to pick and choose which thoughts to prosecute is a government too powerful."

But James Madison, who initially introduced the First Amendment to the Constitution, had previously written to Thomas Jefferson on the passage of the Virginia Statute on Religious Freedom: "We have in this country extinguished forever ... making laws for the human mind." No American, he emphasized later, would be punished for his "thoughts."

However, doesn't the House "Hate Crimes Bill" state that nothing in the legislation shall "prohibit any expressive conduct protected from legal prohibition" - or speech "protected by the free speech or free exercise clauses in the First Amendment"?

Remember, however, as Kathleen Gilbert notes (LifeSiteNews.com) that "free speech advocates have pointed out that under current U.S. law, any action that 'abets, counsels, commands (or) induces a perceived 'hate crime' shares in the guilt of that crime and is therefore punishable."

But doesn't this new bill slip in an insistence that "evidence or expression or association of the defendant may not be introduced as evidence at trail unless the evidence specifically relates to that offense"?

In the definitive constitutional analysis of James B. Jacobs and researcher Kimberly Potter (Oxford University Press 1998, still in print), it is documented in "Hate Crimes: Criminal Law and Identity Politics" that "In Grimm v. Churchill the arresting officer was permitted to testify that the defendant had a history of making racial remarks. Similarly, in People v. Lampkin, the prosecution presented as evidence racist statements the defendant had uttered six years before the crime for which he was on trial," as specifically relating to the offense.

As for the 14th Amendment's essential requirement that no person be denied "the equal protection of the laws," there is carved above the entrance to the Supreme Court: "Equal Justice Under Law."

This legislation, certain to be passed by the Senate, will come to the Supreme Court. I hope the Justices will look up at the carving as they go into the building.

They should also remember that the Fifth Amendment makes clear: "nor shall any person be subject for the same offence to be twice put in jeopardy." But the House "hate crime" bill allows defendants found innocent of that offense in a state court to be tried again in federal court because of insufficiently diligent prosecutors; or, as Attorney General Eric Holder says, when state prosecutors claim lack of evidence. It must be tried again in federal court!

Imagine Holder as the state prosecutor in the long early stages of the Duke University Lacrosse rape case!

What also appalls me, as the new federal bill races toward a presidential signature, is that for years, and now, the American Civil Liberties Union approves "hate crimes" prosecutions!

I have long depended on the ACLU's staff of constitutional warriors to act persistently against government abuses of our founding documents. And these attorneys and analysts have been especially valuable in exposing the results of executive-branch lunges against the separation of powers in the Bush-Cheney years, and still under Obama.

Is there no non-politically correct ACLU lawyer or other staff worker or anyone in the ACLU affiliates around the country or any dues-paying member outraged enough to demand of the ACLU's ruling circle to at last disavow this corruption of the Constitution?

And the president, former senior lecturer in that document at the University of Chicago, should at least take it with him on Air Force One, where there are fewer necessary distractions, and familiarize himself with what the Constitution actually says.

Many on the political left, and even some in the mainstream media, complained about the peaceful protests of hundreds of thousands of Americans who held "tea parties" on tax day. Yet they lightly dismiss truly destructive actions by leftist advocacy groups, many of whom take Saul Alinsky's book, Rules for Radicals, as their bible. Mr. Alinsky wrote, "In war [i.e., war for an ideal or goal], the end justifies the means"; thus almost any action is acceptable for one's cause.

The Capital Research Center (CRC) has just released a well-documented report on the activities of the little-known Neighborhood Assistance Corp. of America (NACA). It specializes in intimidating banks and their executives, even including spouses and children, as part of its political shakedown operations. Its founder, Bruce Marks, even refers to himself as "a banking terrorist."

You may have wondered why so many bankers made loans and mortgages to people who clearly were unqualified. NACA has engaged in aggressive street protests and demonstrations, including spreading information about the personal lives of bank executives and their families, with the goal to pressure banks to lend more in poor neighborhoods.

One may agree or disagree with NACA's goals, but if its tactics had been used by free-market, limited-government organizations, one can imagine the outrage from the left and mainstream media. It is now clear that because NACA has had a number of successes in getting banks to lend to the unqualified, its activities have contributed to the financial crisis, yet it is not being held accountable.

According to CRC, "NACA typically extracts self-serving concessions from banks, forcing them to provide it with funds that it then uses to make mortgage loans to low-income borrowers. NACA rolls the fees it earns servicing these loans back into its campaign of bullying banks."

The Association of Community Organizations for Reform Now (ACORN) is the most notorious of the radical, left-wing activists' groups. It has been charged with numerous voter fraud schemes (in 12 states), extensive tax evasion and racketeering, among other crimes. The Wall Street Journal reported that ACORN, while claiming to give voice to minorities and the poor, is really "a union-backed, multimillion-dollar outfit that uses intimidation and other tactics" to advance a "highly partisan agenda."

CRC reports that "ACORN even indoctrinates students in the taxpayer-supported schools. In New York City, it runs the ACORN High School for Social Justice. ... ACORN schools have transported students to the nation's capital to protest tax cuts." ACORN has a record of forcibly breaking up meetings, including even those of congressional committees. Its activists have harassed motorists and posted "Wanted" signs for corporate executives and yelled obscenities at their families. (Detailed documentation of the activities of NACA and ACORN may be found on the CRC Web site, www.capitalresearch.org.)

ACORN affiliates have received taxpayer-funded grants, which they have ultimately used to hire professional protesters to demand more government spending. In contrast, the left and its media allies had a hard time understanding and tried to avoid reporting how those who showed up for the tea parties were not professional, paid protesters but were Americans who were just fed up with Washington, including its double standards.

How would MSNBC and the New York Times react if free-market groups started hanging "Wanted" posters for Internal Revenue Service officials and employees who clearly serve as instruments for job destroying policies? Inflation is a tax that hits the poor particularly hard and is caused by the Federal Reserve creating too much money and credit. What would happen if monetary-reform groups adopted Alinsky tactics and started picketing the homes of Federal Reserve members and harassing their spouses and children?

Many regulations issued by government regulators do not meet basic cost-benefit tests, thus costing Americans jobs and lowering real incomes. If limited-government groups began sit-ins in these regulatory agencies, many in the media would pillory them as destructive and irresponsible, unlike the adulation they give many sit-in protesters who demand more government regulation.

The right of peaceful protest is guaranteed by the U.S. Constitution. Yet, unfortunately, too many in the media have a double standard, disparaging those whose peaceful protests are in favor of limiting government, while often praising those who engage in property destruction, the politics of personal destruction, harassment and even violence, while demanding more from taxpayers and special rights for favored groups. Such hypocrisy undermines both economic freedom and civil society.

Fidel himself, in a letter in the state-run Granma newspaper, saluted "this legislative group. The aura of Martin Luther King is accompanying them."

To others of us who honor King, there is a barely surviving black Cuban disciple of King (and Mohandas Gandhi) whom the caucus visitors did not meet because he has been in a Castro brothers' cage for many years and was off-limits to them. He is Dr. Oscar Elias Biscet, and he is among those designated by Amnesty International as "prisoners of conscience" in Cuban gulags.

Another visiting caucus member, Emanuel Cleaver of Missouri, was reported by the April 11 New York Post to have said, "We've been led to believe that the Cuban people are not free, and they are repressed by a vicious dictator, and I saw nothing to match what we've been told." A government tour can lead you to believe anything.

The same article quoted Mr. Cleaver as saying of Cuba's current president, Raul Castro: "He's one of the most amazing human beings I've ever met." The international human rights organizations - which have pleaded repeatedly with the Castro brothers to release the blind physician - also find Dr. Biscet amazing in a vitally different sense.

Before he was arrested during Fidel Castro's 2003 mass crackdown on dissenters (an event infamously known as "Black Spring") and sentenced to 25 years in prison, Dr. Biscet had been put away on occasion for planning to organize small groups in private homes to work nonviolently for democratic rights.

Since 2003, Dr. Biscet, often brutalized and denied medical care for digestive and other ailments, has occasionally been thrown into an unlit 3-foot-wide underground "punishment" cell with a toilet in the floor. His highest crime of caged disobedience against the state was to protest vicious treatment of fellow prisoners from his cell. Yet, in a message slipped out, he maintains: "My conscience and spirit are well."

In a cruel irony, the caucus visitors laying flowers at the King memorial appear utterly unaware of this inspiration to many silenced Cubans in Castroland, though Dr. Biscet has been internationally covered by reporters, including myself. Nor were these visiting admirers of Fidel and Raul Castro seemingly aware that a biography of King - seized during the 2003 crackdown raids on independent libraries - was, among other subversive books, ordered burned by Castro judges in one-day trials.

Another Cuban follower of King is Iris Garcia, founder of the Rosa Parks Women's Civil Rights Movement. She and her husband, Afro-Cuban dissenter Jose Luis Garcia Perez, are on a hunger strike trying to bring justice to a family member in a Castro cage.

Mr. Garcia, himself often assaulted for disloyalty, told The Washington Post on April 9: "The authorities in my country have never tolerated that a black person [could dare to] oppose the regime." As I and others have reported, this racism in Cuba is one of the forbidden topics among American idolaters of Fidel Castro.

New Pulitzer Prize-winning columnist Eugene Robinson of The Washington Post, who has made 10 reporting trips to Cuba, wrote April 14 that the Congressional Black Caucus delegation was either naive or disingenuous "not to notice ... [or] acknowledge - that Cuba is hardly the paradise of racial harmony and equality it pretends to be."

If these caucus members - so lauded by Fidel Castro for being accompanied by King's "aura" - had asked him and Raul Castro for permission to look around Cuba on their own, they would have heard considerable evidence from Afro-Cubans about their lower status in Michael Moore's paradise.

However, Mr. Robinson adds, "maybe they were too busy looking into Fidel's eyes."

As for President Obama's changes of policy regarding Cuba, it is indeed long past time to remove travel restrictions to that land by Cubans and Cuban-Americans in this country. Keeping families apart so long has been of value to the Castros' national security rationale for internal repression against "plots" by American enemies - along with the U.S. embargo, which Mr. Obama also should end soon.

But when Dan Restrepo - our National Security Council's senior director for Western Hemisphere affairs - speaks (as reported in the April 14 New York Times) of Mr. Obama's moves "to extend a hand to the Cuban people [so that they can] work on the kind of grass-roots democracy that is necessary to move Cuba to a better future," he omits the continuing stocking of the Castro gulags with pro-democracy "criminals."

In the April 7 Miami Herald, Myriam Marquez reminded the caucus visitors of the 300-plus prisoners of conscience and "the hundreds of dissidents working from their homes under the watch of a totalitarian regime."

Raul Castro, following the black caucus visit and Mr. Obama's policy changes, said he is willing to talk with Mr. Obama on "anything," including human rights and prisons. Well, how about including Dr. Biscet in the conversation once he's released? And Raul, if Fidel agrees, isn't it time finally to let the International Committee of the Red Cross into your prisons?

In 2007, former President George W. Bush gave Dr. Biscet the Presidential Medal of Freedom. Mr. Obama, why not invite Dr. Biscet to the White House?

In the 2000 case of Rice v. Cayetano, the Supreme Court held that a race-based scheme allowing only statutorily defined "Hawaiians" to vote for OHA's trustees was unconstitutional. Despite Rice, and despite Justice John Marshall Harlan's dissenting statement in Plessy v. Ferguson 112 years ago that "[o]ur Constitution is color-blind, and neither knows nor tolerates classes among citizens," OHA continues to view Hawaiian citizens through racial lenses. This practice has spawned numerous lawsuits, including the present legal crisis in which the state's authority to manage its land for the good of all of its citizens has been replaced with a court-imposed duty to hold the land for the benefit of one racial class.

Specifically, after nearly 15 years of litigation, the Hawaii Supreme Court blocked the sale of 1.2 million acres of land (29 percent of the state's total area) based on a mistaken interpretation of a joint resolution that Congress passed in 1993 to apologize for the 1893 overthrow of the Kingdom of Hawaii. While the Apology Resolution was itself based on a slanted view of history - the propagation of which may yet lead to the creation of race-based state government (see the Akaka Bill, a subject for a different article) - the larger point is that the court rewrote the terms by which Hawaii became the 50th state.

But nothing in the Apology Resolution remotely supports the idea that somehow Congress impaired (retroactively!) the property rights in question; the Resolution does not address either Hawaii's sovereign powers or its title to state lands. Further, the Newlands Resolution of 1898 (the law annexing Hawaii to the United States), as well as the Admission Act of 1959 and subsequent federal legislation, foreclose the premise that "Native Hawaiians" may have valid claims that an injunction against land sales preserve.

That is, the United States obtained full sovereignty over the disputed lands when it annexed Hawaii, and the new state government assumed that sovereignty when Hawaii joined the Union. The Hawaii Supreme Court's decision, committed in the name of federal law, thus violates both state sovereignty and federal law! Moreover, the proposition that OHA gets a veto over the transfer of state lands merely because it purports to represent the interests of those who make race-based claims to those lands is an affront to the Equal Protection Clause of the Fourteenth Amendment.

Some argue that "Native Hawaiians" are a special class who, like Indian tribes, are allowed special treatment based on racial classification. But Hawaiians are not American Indians in the constitutional sense. The term "Indian tribes" has a fixed meaning, limited to "dependent nations" at the time of the Founding. Such tribes must have an independent existence and "community" apart from the rest of American society, and a separate government structure for at least the past century.

Hawaii, by contrast, is the most integrated and blended society in America. Only ten percent of "Native Hawaiians" have at least fifty percent Hawaiian blood - and only two of the nine OHA trustees have Hawaiian surnames. No, Indian law is a unique compromise with pre-constitutional realities - one based on political rather than racial classifications - that is inapplicable to Hawaii.

In short, the Apology Resolution neither amended nor rescinded the federal laws that gave Hawaii full control over the disputed lands. But even if it did, race-based claims to those lands should be dismissed as unconstitutional.

The Supreme Court announced in Rice the unwavering principle that "[t]he Constitution of the United States ... has become the heritage of all the citizens of Hawaii." Let's hope that it builds on that sentiment in Hawaii v. OHA. Hawaii should be allowed to transfer state lands for the benefit of all its citizens - thus eroding racial divisions and treating all Hawaiians with the legal equality to which they are entitled.

Anup Engquist, a laboratory employee for 10 years with the state of Oregon, brought suit in federal district court on several grounds after she was denied a promotion and then lost her job following a reorganization orchestrated by a fellow employee who had allegedly wanted to get rid of her. A jury rejected her group-based discrimination claims but accepted her "class-of-one" theory of discrimination under the 14th Amendment's equal protection clause.

A curious outgrowth from our history of group-based equal protection law, the class-of-one theory holds that discrimination may arise not only from actions that treat members of different groups differently but from actions that treat similarly situated individuals differently without sufficient reason. Anomalous as it may be, it takes us to the core of equal protection.

Of the three broad guarantees of section one of the 14th Amendment, equal protection is clearly the most enigmatic and the most difficult to apply. Its origins are in antiquity, in the universality of the Stoics and the "right reason" of Cicero's De Legibus; its modern rationale in John Locke's Second Treatise on Civil Government. From there equality became the nation's bedrock principle, through the Declaration of Independence, even if it would be another 92 years before it could be incorporated explicitly in the Constitution.

But what does "the equal protection of the laws" mean, especially in a case like Engquist?

Here, history helps a bit—and helps explain the dominance of the group-based theory of equal protection. In equal protection's simplest iteration, black defendants have the same legal rights as white defendants. Thus, Recon­struc­tion's Black Codes, which precipitated the 14th Amendment, denied equal protection by prescribing government discrimination on the basis of race.

But why may not government discriminate? We're now at first principles. Despite its historical ties in America to group identity, equality is about individuals. As the Declaration makes clear, each of us is born free, with equal rights, including the right to freely associate with others. Grounded in the idea of individual sovereignty, freedom means that we start with the individual; it is association that must be explained or justified.

Put differently, each of us is free, or at least should be, to discriminate in his associations, for any reason, good or bad, or no reason at all. Thus "at-will" employment, and much else besides. With Voltaire (it's apocryphal, but never mind), we may disagree with your reasons, but we will defend to the death your right to invoke them—or at least we would have before the advent of modern anti-discrimination law—for there is all the difference in the world between defending freedom and defending what flows from it.

But that is freedom of association, for better or worse, in our private capacities, including our private institutional capacities. It's altogether different in the public sector. Yet the reason we may discriminate, "rationally" or not, as private parties—because we are sovereign over ourselves—is the same reason, mutatis mutandis, that government may not discriminate, except on "rational" grounds—because we are all sovereign over government, because government belongs to all of us.

In essence, then, equal protection is less about groups—groups are simply shorthands for discerning discrimination—than about the government treating us all equally and discriminating among us only for "good reasons."

The Engquist majority, with Chief Justice John Roberts Jr. writing for the Court, grants that point when government is acting in its regulatory capacity, bringing its power to bear on citizens at large. Thus, in Village of Willowbrook v. Olech (2000), a case on which most circuits and Engquist herself had relied, the Court found that the village had engaged in "class-of-one" discrimination against Olech when, for no rational reason, it required a 33-foot easement before connecting her property with the municipal water supply when other owners were required to grant only a 15-foot easement.

But that application should not be extended to the government employment context, Roberts says, where government as employer has "far greater powers" than government as sovereign, due to "the nature of the government's mission as employer." Indeed, "government offices could not function if every employment decision became a constitutional matter."

Two main principles apply in the public-employee context, Roberts continues. First, employees' constitutional rights "must be balanced against the realities of the employment context." Second, in striking that balance, courts must consider "whether the asserted employee right implicates the basic concerns of the relevant constitutional provision, or whether the claimed right can more readily give way to the requirements of the government as employer."

It appears (the argument here is unclear) that the "asserted employee right" is to be treated equally with others similarly situated, unless there is a "rational reason" for unequal treatment. But in Olech, Roberts adds, there was "a clear standard against which departures, even for a single plaintiff, could be readily assessed." Here, by contrast, the employer's actions "involve discretionary decision-making based on a vast array of subjective, individualized assessments." Allowing a challenge here "would undermine the very discretion that such state officials are entrusted to exercise." Thus, the employee's right can "more readily give way" to such practical considerations.

Concluding, therefore, that "the class-of-one theory of equal protection has no application in the public employment context," the Court affirms the "at-will" character of government employment, save where statutory or contractual arrangements have provided otherwise.

Those arguments—from the nature of the matter, and the place of discretion—are not to be lightly dismissed. Those who counsel judicial deference in this context have a point: Government employers require discretion, and courts cannot micromanage every decision.

But for those inclined to hold government officials accountable for at least some of their actions, this decision is troubling. Government employers need discretion, to be sure; but discretion is not license. Yet, except for class-based cases, where Roberts says the equal protection clause still applies (although every decision he cites went against the plaintiffs), the Court has carved out an exception that effectively gives public employers license. That, after all, is what at-will amounts to. Ironically, as that doctrine is being legislated and litigated away in the private sector, where it is perfectly appropriate for dealings between arms-length strangers, the Court reaffirms it here, where employees are not strangers to government but, indeed, are part of the government that belongs to all of us.

Practical considerations, it seems, have trumped the theory of the matter. A better reading would have the equal protection clause trumping at-will employment in the government context.

NOT ARBITRARY

Nor is Engquist asking for all that much. In the end, she wants simply rational review, the lowest level of review, which would check only arbitrary government actions, not those for which there is a "reasonably conceivable" ground. (I pass on whether that standard of review is appropriate for assessing alleged constitutional wrongs.) That hardly undercuts employer discretion.

In dissent, Justice John Paul Stevens, writing for himself and for Justices David Souter and Ruth Bader Ginsburg, draws a clear distinction between discretion and an arbitrary decision. "A discretionary decision represents a choice of one among two or more rational alternatives," each thought to be permissible—and "the choice may be mistaken or unwise without being irrational." What the equal protection clause proscribes, Stevens concludes, is not unwise but "arbitrary decisions—decisions unsupported by any rational basis."

Here, however, "the State explicitly disclaimed the existence of any workplace or performance-based rationale," but for which the lower court could have dismissed the claim had it discerned any "reasonably conceivable" ground supporting it. This should have been an easy case, therefore, as indeed the jury found.

And those distinctions should have put to rest what seems to be the majority's main concern—that courts would be flooded with class-of-one cases were they to be allowed. In fact, since Olech was decided in 2000 there have been only about 150 such cases in the federal courts, Stevens notes, and most were dismissed well before trial.

The door is now open, however, for arbitrary decisions by government employers so long as no group-based rationale for a decision can be alleged. Slavery kept equal protection out of the Constitution until after the Civil War. Since then, our group-based approach to equal protection has kept us from enjoying it fully, and that looks to continue until we grasp the principle of the matter.

This article is reprinted with permission from Legal Times.

Three months after the attack on Pearl Harbor, President Franklin D. Roosevelt issued an executive order that gave specified military commanders nearly total discretion to exclude persons from designated areas that had military significance. Toyosaburo ("Fred") Korematsu, an American citizen of Japanese descent, violated the exclusion order and was arrested on May 30, 1942. Thus began one of the darkest episodes in American constitutional history.

Initially held in a San Francisco jail, Korematsu was later sent to an assembly center, and then to a relocation center described as a concentration camp by Supreme Court Justice Owen Roberts. No question was ever raised regarding his loyalty to the United States. He had never been to Japan, did not claim Japanese citizenship, did not read Japanese, and spoke the language poorly.

Over the next two years, 120,000 Japanese-Americans, including 70,000 U.S. citizens, were subject first to curfews, then exclusion from their homes, and finally relocation to internment camps. None of the 120,000 victims was convicted of espionage or sabotage, or even accused of disloyalty. By war's end, Japanese-American troops had received 18,000 decorations for valor. Remarkably, many of the troops had volunteered for service from within the internment camps. Not until mid-1946 did the last residents of the camps return to their homes.

Korematsu's challenge to his incarceration fell on deaf ears. The Supreme Court, in a 1944 decision written by Justice Hugo Black, invoked national security to absolve the Roosevelt administration of an unconscionable violation of civil liberties. Dissenting Justice Robert H. Jackson cautioned, "guilt is personal and not inheritable." By condoning Korematsu's mistreatment, he continued, "the court for all time has validated the principle of racial discrimination . . .. The principle then lies about like a loaded weapon ready for the hand of any authority that can bring forward a plausible claim of an urgent need."

Not until 1983 did the The Commission on Wartime Relocation and Internment of Civilians finally acknowledge that the internment program was a "grave injustice," which was "conceived in haste and executed in an atmosphere of fear and anger at Japan. "The commission found, unanimously, that Roosevelt's executive order "was not justified by military necessity, "but was the product of "race, prejudice, war hysteria and a failure of political leadership."

In 1988, President Ronald Reagan authorized reparations of $20,000 each to thousands of internees, including Korematsu. Then, in 1999, President Bill Clinton awarded Korematsu a presidential Medal of Freedom, the nation's highest civilian honor. Fred Korematsu died at age 86 on March 30, 2005.

Few Americans would argue that the United States, under attack by Japan, should be forbidden from considering Japanese ancestry combined with evidence of misbehavior -- to identify potential targets for further investigation. But the Roosevelt administration did not combine nationality with evidence of misbehavior. Japanese ancestry was the sole criterion; and incarceration, not investigation, was the resultant government act. When undefined ethnic profiling, with no basis for assuming that a single suspect had been disloyal, is used to deny liberty to 120,000 innocent persons, we should be outraged.

Regrettably, the Supreme Court was not outraged. By authorizing the president to incarcerate innocent Americans based solely on their lineage, the court set the stage for later presidential power grabs, culminating in President George W. Bush's unprecedented claims of executive authority in the war on terror.

President Bush has been more than willing to wield the "loaded weapon" of wartime power based on "urgent need." He has claimed authority to engage in electronic surveillance without a warrant, convene military tribunals without congressional approval, establish secret CIA prisons, declare that all battlefield detainees are enemy combatants, imprison U.S. citizens without filing charges, and employ interrogation techniques that may have violated our treaty commitments banning torture.

The problem is not that courts today are invoking Korematsu to justify executive power. The holding in that case is an anachronism, "overruled in the court of history," even if not officially repudiated by the Supreme Court. But Fred Korematsu's challenge, if it had been upheld, would have stood as a formidable barrier to excessive concentrations of power in the executive branch. Instead, the court condoned Roosevelt's unconstitutional internment policy and passed up its chance to establish legal precedent that might have dissuaded future executive misbehavior.

The fact is that eminent-domain abuse is a crucial constitutional rights issue. On Tuesday, the Alabama Advisory Committee of the U.S. Commission on Civil Rights will hold a public forum at Birmingham's historic Sixteenth Street Baptist church to address ongoing property seizures in the state. The church was not only a center of early civil rights action, but also, tragically, where four schoolgirls lost their lives in a bombing in 1963.

Current eminent domain horror stories in the South and elsewhere are not hard to find. At this writing, for example, the city of Clarksville, Tenn., is giving itself authority to seize more than 1,000 homes, businesses and churches and then resell much of the land to developers. Many who reside there are black, live on fixed incomes, and own well-maintained Victorian homes.

Eminent domain has always had an outsized impact on the constitutional rights of minorities, but most of the public didn't notice until the U.S. Supreme Court's 2005 ruling in Kelo v. City of New London. In Kelo, the Court endorsed the power of a local government to forcibly transfer private property to commercial interests for the purpose of "economic development."

The Fifth Amendment requires that such seizures be for a "public use," but that requirement can be satisfied, the Court ruled, by virtually any claim of some sort of public benefit. Many charge that Kelo gives governments a blank check to redistribute land from the poor and middle class to the wealthy.

Few protested the Kelo ruling more ardently than the National Association for the Advancement of Colored People. In an amicus brief filed in the case, it argued that "[t]he burden of eminent domain has and will continue to fall disproportionately upon racial and ethnic minorities, the elderly, and economically disadvantaged." Unfettered eminent domain authority, the NAACP concluded, is a "license for government to coerce individuals on behalf of society's strongest interests."

Some earlier civil rights champions, by contrast, often ignored, or worse helped to undermine, the rights of property owners. Ironically, the same U.S. Supreme Court which handed down Brown v. Board in 1954 also issued Berman v. Parker, in which the Court allowed the District of Columbia to forcibly expel some 5,000 low-income African-Americans from their homes in order to facilitate "urban renewal." It was Berman that enabled the massive urban renewal condemnations of later decades, which many critics dubbed "Negro removal" because they too tended to target African-Americans.

Four years ago, the city of Alabaster, Ala., used "blight" as a pretext to take 400 acres of rural property, much of it owned by low-income black people, for a new Wal-Mart. Many of the residents had lived there for generations, and two other Wal-Mart stores were located less than fifteen miles away. Several of the landowners, particularly those who lacked political clout and legal aid, ended up selling out at a discount.

In the three years since Kelo, 42 states, including Alabama, have enacted new laws limiting eminent domain power, but many of the new laws contain loopholes that make them easy to circumvent. Some 19 states have forbidden takings for "economic development" but continue to permit the exact same kinds of condemnations under the guise of alleviating "blight" — a concept defined so broadly that virtually any property the government covets can be declared "blighted." If takings end up becoming a key constitutional rights issue for minorities in the 21st century, it will be fitting that the crusade against them begins in Alabama, where their victims have suffered most greatly. And there are few better places to kick off the debate than the Sixteenth Street Baptist Church, where the modern civil rights movement was born.

Most Americans know only about the four main anti-slavery strategies pursued in the United States: (1) abolitionist campaigns that involved publications and speaking tours, organized by William Lloyd Garrison and others; (2) slave rebellions, like the one incited by Nat Turner; (3) the Underground Railroad, in which runaway slaves like Harriet Tubman and Frederick Douglass, supported by Quakers and others, helped many more slaves escape to freedom; (4) and war which became the most important strategy because of its disastrous short-term and long-term consequences.

Reliance on the use of force resulted in the emancipation of American slaves, obviously a good thing. But this, the military strategy for emancipation, backfired badly. Massive destruction and loss of life embittered Southerners, giving them powerful incentives to avenge their losses whenever they had the chance. Pro-slavery Southerners were bad before the war and worse afterwards. Abraham Lincoln's conciliatory gestures had little effect because of the intense emotions stirred up by all the fighting, most of which had taken place in the South. Confederate President Jefferson Davis suggested that desperately hungry Southerners should eat rats because they tasted better than squirrels, while Union tax collectors went through the South, looking for assets to seize.

Imagine the disillusionment of Lincoln's anti-slavery supporters when his hand-picked successor Andrew Johnson, a former slaveholder who had been a Democratic senator from Tennessee, offered a peace settlement that conceded much of what many Northerners thought they had been fighting for. Johnson said nothing about granting political rights for former slaves, and he appointed state governors acceptable to Southern whites. In Southern elections following the Civil War, ex-confederate colonels, generals, the former vice president of the Confederacy, a half-dozen ex-confederate cabinet members and 58 ex-confederate congressmen gained power. Such people dominated southern state governments, and they began enacting oppressive Black Codes.

Radical Republicans in Congress tried to thwart this resurgence of Southern power. They passed the Civil War amendments to the Constitution, they impeached President Johnson, and many Northerners went down South in an effort to make sure that Southerners did the right thing. But there never were enough Northerners to staff all the offices of Southern state governments. Moreover, some three-quarters of Southern males, 18 to 45 years old, had fought for the Confederacy, so unless Southern democracy was suppressed, and the overwhelming majority of Southern males were excluded from voting, they were going to have an impact on elections. They were against giving blacks and women the right to vote. Despite the decisive military victory of the Northerners, after the war Southern state governments were loaded with their adversaries.

There were violent reactions against Republican Reconstruction. The White Brotherhood, the Red Shirts, Knights of the White Camelia and especially the Ku Klux Klan organized efforts to intimidate blacks and Republicans alike. These groups held rallies aimed at driving Northerners out of the South. Klan members burned black homes, schools and churches as a reminder that blacks should not challenge white supremacy. Blacks who had achieved conspicuous success were at risk. Similarly, Klan members physically prevented blacks from voting. Blacks had a hard time defending themselves from Klansmen, because they ganged up on their intended victims, and state laws made it illegal for blacks to own guns. Whites who intimidated or killed blacks came to be called "Redeemers."

Overall, Republican efforts were limited in their ability to help blacks. Republicans faced relentless opposition from embittered Southerners, and Southern governments – largely bankrupted by the war – didn't have any money. The Republicans lacked roots in the communities where they held office. Republicans tended to be professional politicians, and – without an established business or profession to fall back on -- if they failed to win an election, they were without a livelihood. Aside from a Union army of occupation, they were supported only by Republican newspapers that had tiny circulations and received little advertising revenue, because Southern businessmen were loyal to Democratic newspapers.

Despite their good intentions, Radical Republicans did much harm. They promoted centralized government school systems in every Southern state. All the government schools were segregated, except for New Orleans government schools which were briefly integrated. Government schooling had taken root in Massachusetts during the 1830s and spread throughout most of the North before the Civil War. As a consequence, whoever controlled the government controlled everybody's schools in each locality. This worked to the serious disadvantage of blacks who were excluded from schools their taxes helped pay for. Because they paid taxes for other people's children, they had fewer resources available for their own children. Much like laws of the slavery era, that made it illegal to educate blacks, Reconstruction era government school laws helped promote black illiteracy and ignorance.

Republican politicians helped defeat themselves by becoming big spenders. They lavished subsidies on railroads, and in other ways state governments spent beyond their means to rebuild roads as well as other facilities destroyed during the war. The result of the spending schemes was corruption on a large scale. In North Carolina, $200,000 in bribes yielded millions of dollars of railroad subsidies. For years, bribery wasn't a crime in Louisiana. Pervasive corruption discredited the administration of Civil War hero Ulysses S. Grant's administration.

By the mid-1870s, Reconstruction ran out of steam as Radicals died or moved on. President Rutherford B. Hayes agreed to withdraw federal troops from the South in 1877, and Southerners were able to subvert the civil rights of blacks for nearly another century.

Various ideas for helping the former slaves achieve independence, like giving each slave 40 acres and a mule, were pipe dreams precisely because of the Civil War. It made angry Southerners even more determined than they had been before to suppress blacks. By going home, Northerners turned their backs on the mess they had made by promoting war.

Bottom line: the Civil War was no shortcut to achieving civil rights for blacks. While chattel slavery in the United States was abolished in 1865, blacks didn't begin to get substantial legal protections for their civil rights until the 1960s.

The other place that relied on war to achieve emancipation was Haiti, and the results were even more dismal. French slaveholders had been brutal, but the understandably outraged slaves, who began revolting in 1790, proved to be just as brutal. The inability of slaveholders and slaves to do anything but fight each other, compounded by invasions of French, British and Spanish forces, convinced everybody that if they didn't kill, they would be killed. The greatest champions of Haitian independence, like Toussaint Louverture, were brutal military dictators. After Toussaint was captured by Napoleon, Jean-Jacques Dessalines became president-for-life -- until he was assassinated in 1806. Then there was a civil war between black generals Alexandre Péxtion and Henri Christophe. Although about 465,000 slaves were emancipated, the result of all this violence was a seemingly endless succession of bloody power struggles up to the present, rather than a free society that slaves had dreamed of when their revolt began.

Since the abolition of slavery in Haiti, the people there have had to endure some 200 revolutions, coups and civil wars. Endemic violence obliterated historical information about Haiti when, for instance, fighting destroyed government offices in 1869, 1879, 1883, 1888 and 1912. The National Palace was blown up several times. Plagued with dictators to the present day, Haiti is the poorest nation in the Western Hemisphere and among the poorest nations on earth.

I embrace the moral sentiment expressed by William Lloyd Garrison's credo, "Immediate emancipation without compensation for slaveholders," but in fact there never was any such thing as immediate emancipation. Slaveholders everywhere resisted emancipation. When force was used in an effort to emancipate slaves, the result was fighting if not full-scale war, the destruction was worse than anticipated, and there were terrible consequences to deal with afterwards.

How else could slavery have been abolished in the United States without the Civil War?

Well, in 1838 Great Britain achieved the most peaceful emancipation in the Western Hemisphere. There were some 800,000 slaves in its Caribbean colonies, the largest of which was Jamaica. The first organized anti-slavery campaign originated in Great Britain during the late 18th century when that maritime nation dominated the slave trade. Great abolitionists like Granville Sharp, Thomas Clarkson, William Wilberforce and Thomas Buxton overcame the opposition of powerful interest groups, demonstrated the moral evil of slavery and gained the moral high ground. Their patient, persistent campaigning achieved perhaps the most dramatic turn-around in public opinion, securing passage of an 1808 law to abolish the British slave trade, the support of the Royal Navy that launched a remarkable 60-year campaign to help suppress it, the support of British diplomats to negotiate anti-slavery treaties with other nations, and an 1833 law to phase out slavery in Great Britain's Caribbean colonies. Within a few decades, the British people who had been complaisant or supportive of slavery became the most implacable foes of slavery.

British abolitionists recognized that after emancipation, most former slaveholders and former slaves were going to end up in the same society together. Former slaveholders had more power, and there wasn't anybody to protect the former slaves, so it made sense to undermine incentives of the former slaveholders to avenge their losses. Accordingly, Parliament appropriated 20 million pounds to compensate former slaveholders for their slaves. From a moral standpoint, of course, the former slaves, not the former slaveholders, deserved compensation, but this way there was more likely to be peace, and the former slaves would be safer, and that's how it worked out.

After emancipation, many blacks preferred to farm for themselves on a small scale where they were likely to benefit from their labor, rather than remain on plantations where they had been abused. There was considerable social progress. More former slaves got married, and husbands and wives lived together. Schools were established for former slaves and their children, and the former slaves formed self-help societies.

Plantation owners had to adapt in a free labor market. Some shut down, while others turned to labor-saving technologies that should have been introduced long ago. In Jamaica, for instance, planters began using animal-drawn plows and harrows adapted for their particular soil conditions. In British Guiana, planters built elevators to bring cut sugar cane to mill houses. Planters there equipped sugar mills with steam engines. Keep in mind that steam engines had propelled the Industrial Revolution during the previous century.

In Brazil, the largest market for slaves – about 40 percent of African slaves were shipped there -- abolitionists raised funds to buy their freedom. Slaveholders resisted, but here and there slaveholders found it in their interest to cash out, and gradually slaveholding areas began to shrink. There was competition among towns, districts and provinces to become slave-free. As liberated areas expanded and became closer to more slaves, the number of runaways accelerated, relentlessly eroding the slave system. Brazilian authorities, like the British, appropriated funds to compensate slaveholders who liberated their slaves. Again, this wasn't because the slaveholders deserved compensation. If anybody deserved compensation, it was the people who had been brutally enslaved and forced to work for nothing. But compensation undermined the incentives of former slaveholders to oppress former slaves, and the former slaves were safer. So slavery was gradually eroded through persistent anti-slavery action involving multiple strategies. In 1888, Brazil became the last nation in the Western Hemisphere to abolish slavery, when there were some 1.5 million slaves remaining.

Some people have objected that the United States couldn't have bought the freedom of slaves, because this would have cost too much. Buying the freedom of slaves more expensive than war? Nothing is more costly than war! The costs include people killed or disabled, destroyed property, high taxes, inflation, military expenditures, shortages, famines, diseases and long-term consequences that often include more wars!

Just consider some major costs of the U.S. Civil War. Altogether, an estimated 620,000 Union and Confederate soldiers died. Including the number of civilians killed – almost all of whom were Southerners – the total could exceed the 700,000 American deaths in all the other wars the United States has been involved with. In many communities, entire adult populations were wiped out. This was because of the practice of encouraging all the young men in a town to join the same fighting unit.

The financial cost of the Civil War was overwhelming. The North raised some $3 billion in taxes and loans. The Confederacy borrowed more than $2 billion. Both North and South printed plenty of paper money. People in the North endured the inflation of Greenbacks. In the South, there was a runaway inflation. An estimated $1 billion to $1.5 billion of property in the South was destroyed.

That kind of money could have bought the freedom of a lot of slaves and significantly undermined the slave system in the South!

Most of the Civil War had been fought in the South, especially Alabama, Georgia, Mississippi and Tennessee. Atlanta, Columbia, Richmond and other cities were substantially destroyed. Areas of the South that hadn't been occupied by Union troops were flooded with some 200,000 refugees.

Union Major General Carl Schurz, traveling through the South on an 1865 fact-finding mission, reported seeing "ruin and desolation – the fences all gone; lonesome smoke stacks, surrounded by dark heaps of ashes and cinders, marking the spots where human habitations had stood; the fields along the road wildly overgrown by weeds, with here and there a sickly patch of cotton or corn cultivated by Negro squatters."

Worst off were prisoners of war. Andersonville (Georgia) was among the largest Civil War prison camps, established in 1864 by the Confederacy. It held some 45,000 prisoners, of whom about 13,000 died from unsanitary conditions, malnutrition and disease. Altogether, a reported 215,000 Confederate soldiers died in Union prisons, and 195,000 Union soldiers died in Confederate prisons.

I might add that emancipation probably could have been achieved without having to buy the freedom of all American slaves. Buying the freedom of slaves was one among several strategies for reducing the number of slaves and the area of slaveholder influence. Presumably the initial focus would have been on undermining slavery in border states, then gradually moving further south. As some point, the combined impact of many emancipation strategies would surely have led to the collapse of Southern slavery, as happened elsewhere in the Western Hemisphere.

Okay, how long might it have taken for blacks to gain equal rights without going through a civil war?

Well, starting in the early 19th century, one Western nation after another that had tolerated the slave trade passed laws banning their citizens from participating in it. These nations included Denmark (1792), Great Britain (1807), the United States (1808), Mexico (1810), Venezuela (1810), Chile (1811), Argentina (1813), Sweden (1813), the Netherlands (1814), France (1818), Brazil (1851) and Cuba (1867). While banning the slave trade wasn't the same thing as stopping it, clearly time was running out for the slave trade. Throughout this period, Great Britain's Royal Navy persisted with its long-term campaign to disrupt the slave trade, and while it didn't intercept more than a small percentage of slave ships, it definitely increased the risks and costs of the slave trade, and created uncertainties for slaveholders who depended on fresh shipments of slaves. Meanwhile, nations that got on board to ban slavery itself in their territories included Argentina (1813), Colombia (1814), Chile (1823), Mexico (1829), Bolivia (1831), Great Britain (1838), Sweden (1847), Denmark (1848), France (1848), Ecuador (1851), Peru (1854) and Venezuela (1854).

By 1860, the number of Western slave societies had fallen dramatically. There were only three places of consequence in the Western Hemisphere that still tolerated slavery: the United States, Cuba and Brazil. Many Southerners comforted themselves by citing Biblical passages defending slavery, but they knew that increasing numbers of people viewed them as backward and barbaric because of their slavery. Cuba outlawed slavery in 1886, Brazil two years later, as mentioned above.

While it's true the defeat of the South helped convince Cuban and Brazilian slaveholders that the end was in sight, a number of other factors were working against slavery in Cuba and Brazil. As more places were knocked out of the slave trade, the Royal Navy was able to concentrate its resources on Cuba and Brazil. In Cuba, the Ten Years War (1868-1878) undermined slavery because both sides became so desperate that they promised emancipation to slaves who joined their side, which significantly reduced the number of slaves there. I've already noted the multiple strategies at work in Brazil – raising private funds to buy the freedom of slaves, competition among towns, districts and provinces to become slave-free, the escalation of runaways and government compensation for slaveholders, undermining their resistance to emancipation.

Without the Civil War, the abolition of American slavery surely would have come later than it did, perhaps a couple decades later. The United States might have been the last hold-out. There would have been mounting pressure on the South.

As in other cases, perhaps the most important anti-slavery pressure might have come from home rather than abroad. The Northern economy was growing rapidly because of expanding population, advancing technologies and industrialization. The increasing numbers of immigrants who came to the United States didn't want to compete with slave labor, so they settled in the North. The majority of inventions that revolutionized American life were developed in the North. The principal centers of American finance, manufacturing and commerce were in the North. With each passing decade, the North became more prosperous than the South, and this must be counted among the significant, long-term factors working against Southern slavery. In our own time, the collapse of Communist Eastern Europe and the Soviet Union, and the dynamic influence of tiny Hong Kong on Communist China, have reminded us how subversive it is to have a prosperous free society bordering a totalitarian society.

I believe the experience of emancipation elsewhere in the Western Hemisphere suggests that without the U.S. Civil War, emancipation might have come a couple decades later than it did, but without the bigger backlash caused by the war, blacks would have gained their civil rights decades earlier than they did, long before 1960.

What we can say with a great deal of confidence is that the use of force and violence tends to backfire, and this happened with the U.S. Civil War. Many of those who supported the Civil War thought it might be a short cut for blacks to gain their civil rights, but the Civil War turned out to be the long way around.

As I hope I've shown, the alternative to the Civil War wasn't to do nothing and wait for Southern slaveholders to decide when, if ever, they might emancipate their slaves. The alternative was to recognize that slavery was a gigantic beast, and no single strategy was likely to bring it down, so multiple strategies, including buying off slaveholders, had to be pursued – patiently, persistently, relentlessly, as Great Britain's Royal Navy went after slave traders for six decades.

Crime is a serious problem, but under the U.S. Constitution it is a matter to be handled by state and local government. Chief Justice John Marshall observed in 1821 that Congress had "no general right to punish murder committed within any of the States." Unfortunately, as the years passed, Congress eventually assumed the power to enact a vast number of criminal laws pursuant to its power "to regulate Commerce with foreign Nations, and among the several States, and with the Indian Tribes."

This Congress should not exacerbate the errors of past Congresses by federalizing more criminal offenses. The Commerce Clause is not a blank check for Congress to enact whatever legislation it deems to be "good and proper for America," and the proposed hate crimes bill is simply beyond the powers that are delegated to Congress.

Even if it presented no constitutional problem, it would still be unwise to support hate-crimes legislation. For one thing, it is imperative that federal law-enforcement focus on foreign threats, such as al Qaeda. One of the reasons the terrorists were able to elude detection prior to the September 11 attacks was that the FBI was charged with so many responsibilities that it lost sight of its most important responsibility — protecting the homeland from foreign threats. But the FBI was only trying to fulfill to the additional missions that the Congress assigned to it. A veto would underscore the point that there will be no backsliding while Bush remains in office.

Of course, one should not forget that all of the violent acts that would be prohibited under the proposed bill are already crimes under state law. Over the last few years, there has been a great deal of publicity surrounding the brutal killings of James Byrd in Texas and Matthew Shepard in Wyoming. The individuals responsible for those murders were quickly apprehended and prosecuted by state and local authorities. President Bush knows the Byrd case well, as he was the state governor at the time. Those incidents do not show the necessity for federal action; to the contrary, they show that federal legislation is unnecessary.

The proposed bill is called the "Hate Crimes Prevention Act," but it is not going to prevent anything. Any thug that is already inclined to hurt another human being is not going to lay down the gun or knife because of some new law passed by Congress. The culprits involved in the killings of James Byrd and Matthew Shepard, for example, made a conscious decision to disregard basic homicide statutes. And those murders took place in states that have the most drastic legal sanction available under the law: the death penalty. The notion that any federal hate-crime law could have prevented those brutal killings is naïve.

Proponents of hate-crime legislation believe that such laws will increase tolerance in our society and reduce intergroup conflict. But hate-crime laws may well have the opposite effect. The men and women who will administer hate-crime laws — police and prosecutors — will likely encounter a never-ending series of complaints with respect to their official decisions. When a U.S. attorney declines to prosecute a certain offense as a hate crime, some will complain that he is favoring the groups to which the accused belongs. And when a U.S. attorney does prosecute an offense as a hate crime, some will complain that the decision was based upon politics and that the government is favoring the groups to which the victim belongs. This has already happened in some of the jurisdictions that have enacted hate-crime laws at the local level.

Hate-crimes legislation will also take our laws too close to the notion of thought crimes. It is true that the hate-crime laws that exist presently cover acts, not just thoughts. But once hate crime laws are on the books, the law-enforcement apparatus of the state will be delving into the accused's life and thoughts in order to show that he or she was motivated by bigotry. What kind of books and magazines were found in the home? What internet sites were bookmarked in the computer? Friends and co-workers will be interviewed to discern the accused's politics and worldview. The point here is that such chilling examples of state intrusion are avoidable because hate crime laws are unnecessary in the first place.

Many members of Congress recognize these problems, but they fret about the political risks involved in opposing a "hate crimes" proposal. President Bush has been down this road before. In 1999, he refused to sign the "James Byrd Hate Crimes Act" while he was governor by saying that "all crimes are hate crimes." As president, Bush should remain steadfast against the effort to enact federal hate crimes legislation.

Senator Susan Collins, a Republican of Maine, is the author of the latest effort to sell reluctant states on the REAL ID Act, the 2005 measure which would coerce states into issuing nationally standardized driver's licenses and require them to enter information about their drivers in nationally accessible databases.

Despite Homeland Security Secretary Michael Chertoff's public insistence that the Act needs to be implemented rapidly, the administration, and Mr. Chertoff himself, appear happy to avoid an immediate confrontation with the states and to go along with Ms. Collins' sales tactic. The Maine Senator introduced a bill, and pressed it as an amendment on the Senate floor, to extend the deadline for state compliance with the REAL ID Act, allowing companies in favor of the measure time to work in state capitols to calm the burgeoning rebellion.

Sen. Collins' counter-rebellion role is laden with irony. The revolt, after all, started in her own New England state. In late January, George Smith, executive director of the Maine Sportsmen's Alliance, stood to denounce the REAL ID Act at a community forum in Augusta. A Norman Rockwell painting come to life with the directness and accent of a lifelong Mainer, he said: "They had their Boston Tea Party. Let's have a REAL ID Party!"

The next day, the Maine House and Senate passed a resolution to reject REAL ID by overwhelming margins.

Working with Sen. Collins, DHS has now moved the deadline for complying with REAL ID back more than a year and a half, from May 2008 to December 2009. DHS says it will start allocating Homeland Security Grant Program funds for REAL ID while implementation is delayed. That gives incentive to the ultimate recipients of the funds to start lobbying rebellious state lawmakers.

Whether the Collins tactic will work remains in doubt. The original objections to the REAL ID Act are still potent. A cost estimate of $11 billion dollars from the National Conference of State Legislatures has now been replaced by a $17 billion dollar estimate out of the Department of Homeland Security itself. Implementing REAL ID will force drivers to spend more time to secure or renew licenses as they will have to document more carefully to DMV bureaucrats exactly who they are. It will force law-abiding, Americans to prove that they are lawfully in the United States. People who have been driving for decades will be turned away without drivers' licenses routinely because they will not have their papers in order.

The REAL ID Act also requires states to enter information about their drivers into databases to which all other states will have access. Identity thieves will have much greater opportunities to get their hands on driver information nationwide. And a uniform “machine-readable technology” on the licenses themselves will make it easier for governments and businesses to scan licenses and compile storehouses of data about our whereabouts and activities.

American Civil Liberties Union affiliates across the country have worked with state legislators to expose the flaws in REAL ID. Its RealNightmare.org Web site lists 24 states where bills and resolutions opposing and refusing REAL ID are moving. Eight have passed at least one chamber of the legislature.

But opposition to the REAL ID is not restricted to the left. In Utah's Republican-dominated legislature, the leading opponent of REAL ID is Glenn Donnelson, a Republican of North Ogden and chairman of the House Government Operations Committee. His bill to reject the REAL ID Act was passed unanimously by the Utah House of Representatives.

Idaho Representative Phil Hart, a Republican of Athol, has been leading the charge in his state. In mid-February, he convened a panel discussion in the Boise statehouse. One of the panelists was Bill Bishop, Director of the Idaho Bureau of Homeland Security. You might think that a state homeland security official would support REAL ID. Bishop does not.

Bishop pointed out its weaknesses as a security tool. Even if it was possible to accurately nail down the identity of everyone in the country, we would be no better off in terms of preventing a terrorist attack. The 9/11 attackers, just like Timothy McVeigh before them, would have been able to get drivers' licenses had REAL ID been the law when they struck.

"I don't believe in the Easter Bunny, I don't believe in Santa Claus, and I don't believe in the Lone Ranger," said Bishop, "which means I don't believe in silver bullets." Representative Hart's resolution passed both chambers of the Idaho legislature.

Extraordinary cost and inconvenience is not a measure of effectiveness. Implementing REAL ID would burden the country with wasteful spending and needlessly undermine Americans' freedom and privacy without adding to our protections.

In Russia today one hears more and more about which activities should be banned because they might be "offensive" to "certain types of viewers." It's not just movies, either. The Moscow city authorities recently banned the gay-pride parade in Russia's capital because some people might be offended by the existence of gay people. However, after banning that peaceful expression, they went on to ban a racist "Russian March" by ultra-nationalists, which was an aggressive expression of hatred against all foreigners and "aliens."

Thereby the government manifested its complete rejection of any kinds of provocative behavior that might "threaten" civil peace. Although a peaceful celebration of the 13th anniversary of the legalization of gay relationships was not a threat to peace, as a racist march calling for violence against aliens was, polls show that a majority of Russians approved of banning both marches. Good news is: 51% of the respondents also disapproved of the violent reaction of the authorities and of the ultra-nationalists to the handful of gay people who defied the ban and got together for a parade only to be savagely beaten by the ultra-nationalists and then arrested by the police.

A ban on Borat, though, is a ban of a different and more alarming kind. Television broadcasts (set aside cable) are broadcast on the "public airwaves." Marches take place in public and on public streets. A public body may claim the right to decide what will be shown on television or who may march on the public streets. But films (Borat's Cultural Learnings of America for Make Benefit Glorious Nation of Kazakhstan included) are shown in private movie theaters. So whether someone considers Sasha Baron Cohen a talented comic, a witless jerk, a clever and provocative social critic, an offensive boor, or something else, everyone can make the choice of whether to buy a movie ticket and enter a private theater. No one is forced to be a part of the audience.

Until recently, while the post-Soviet Russian state rigorously claimed its monopoly over the public domain, it left self-expression, art, and entertainment largely to the free choices of free people. For example, earlier calls by some Orthodox activists to ban the screening of Mel Gibson's "Passion of the Christ" and the "Da Vinci Code" were completely ignored. However the Danish cartoon scandal led the authorities to undertake an all-out campaign against "religiously offensive" publications in the (public?) media domain.

For the first time in post-Soviet history, the government banned a non-pornographic film, thereby intervening in the cultural domain. Whether the state's actions could be explained by poor sense of humor or rigid foreign policy perspectives ("let's not offend the neighboring Kazakhstan"), they are dangerous and unforgivable. Naturally, "Borat" is better-off now - the surrounding drama hyped up the public interest and undoubtedly the movie will be readily available on Russia's vast entertainment black market.

But the harm is done. The government once again manifested its potential to intervene in the private domain, indicating that it will only tolerate freedom of expression so long as it does not interfere with its interests. It may seem that banning just one particular foreign film is as innocent as it can get, but the indifferent reaction of the people might embolden the government in its future assaults against private expressions.

The Russian government's actions in blatantly banning Borat are not justified. The ability to accept the freedom of others to express themselves without infringing on the equal freedom of other men is an integral part of living in an open society. This is something that is yet to be learned in Russia – after all, if one would ban movies, plays, music or videos that are offensive to "certain ethnic groups and religions", who makes the decision of what is offensive, and how is that not cultural authoritarianism?

Mostly because it's a bait-and-switch game. The proposed Ballot Question No. 1 is far broader than a simple ban on gay marriage.

Supporters say the amendment is needed in order to prevent activist judges from unilaterally changing the definition of marriage. But no liberal activists have yet been sighted in the Virginia judiciary. And that's no surprise because judges in Virginia are selected by the same legislature that has repeatedly passed bans on gay marriage, civil unions and domestic partnerships, including this proposed amendment.

In fact, Virginia is one of only two states where the legislature directly appoints judges to the state courts, including the state Supreme Court. It is inconceivable that Virginia judges, including four members of the Supreme Court, are going to impose gay marriage on the state. Virginia is not Massachusetts nor Vermont or New Jersey, and our judges are certainly more conservative than those in New York, where the high court recently upheld the state's ban on gay marriage.

The irony in Virginia is that conservatives fearful of an out-of-control judiciary are in fact inviting the judiciary to get involved in micro-managing family law. Take a look at the actual text of what journalists are inaccurately calling "the proposed ban on gay marriage."

The first sentence of the amendment reads: "That only a union between one man and one woman may be a marriage valid in or recognized by this Commonwealth and its political subdivisions." That sentence is what amendment supporters want you to read.

But read the rest of it: "This Commonwealth and its political subdivisions shall not create or recognize a legal status for relationships of unmarried individuals that intends to approximate the design, qualities, significance, or effects of marriage. Nor shall this Commonwealth or its political subdivisions create or recognize another union, partnership, or other legal status to which is assigned the rights, benefits, obligations, qualities, or effects of marriage."

Note the italicized words. The use of the word "or" makes this a very broad law.

Supporters of the amendment rely on the assurance of Virginia Attorney General Robert McDonnell that passage "will not affect the current legal rights of unmarried persons."

But lawyers disagree. The firm of Arnold and Porter issued a 71-page analysis of the amendment coming to starkly different conclusions. Their lawyers concluded that the amendment could be interpreted by Virginia courts to invalidate rights and protections currently provided to unmarried couples under domestic violence laws, block private companies from providing employee benefits to domestic partners, and prevent the courts from enforcing child custody and visitation rights, as well as end-of-life arrangements, such as wills, trusts and advance medical directives, executed by unmarried couples.

The firm went on to say: "This exceedingly broad and untested language is the most expansive such proposal ever to have been put before the voters of any state."

We should not pass constitutional amendments whose effects are so uncertain. A simple ban on gay marriage would be redundant, but it would have the virtue of clarity for the courts. The actual amendment invites judges to review every private contract, every employee benefit, every legal arrangement between unmarried partners.

That should be anathema to opponents of judicial activism. It should also be a frightening prospect to Virginia businesspeople. A growing number of companies are offering benefits to the domestic partners of gay employees, and they will want to locate in states where those benefits are clearly legal.

This amendment goes too far. But even its first sentence — the ban on gay marriage — is unworthy of a state that was the birthplace of American freedom. It is a cruel irony that this amendment to restrict contract rights and exclude loving couples from the institution of marriage is to be added to Virginia's Bill of Rights, a document originally written by the great Founder George Mason.

Mason's eloquent words inspired Thomas Jefferson in writing the Declaration of Independence and James Madison in writing the Bill of Rights for the U.S. Constitution. We should not add language to Virginia's Bill of Rights that would limit rights rather than expand them.

Gay marriage is not legal in Virginia, and there's no prospect of changing that in the foreseeable future, whether by legislative or judicial action. Ballot Question No. 1 is unnecessary and will create legal uncertainty.

Maye's plight is a case study in the problems with drug policing in America, from questionable confidential informants to invasive paramilitary tactics, overworked and underfunded defense attorneys, and how all of the above seem to disproportionately affect low-income people, particularly African-Americans.

Maye, who is black, shot a white police officer, Ron Jones, who is also the son of the town police chief in Prentiss, Miss., a town plagued by poor race relations, high unemployment, soaring crime rates and a burgeoning drug trade.

Late on the night of Dec. 26, 2001, Jones assembled a group of policemen to respond to a tip from a confidential informant that there was marijuana in the duplex Maye and his family shared with Jamie Smith. Described in the search warrants as a "known drug dealer," Smith had drug charges pending against him.

Maye maintains that he didn't know they were police officers. He says he fired his gun in self-defense, and in defense of his 18-month-old daughter, who was asleep at the time.

The first jury to hear his case didn't believe him. In 2004, he was convicted of capital murder - the intentional killing of an on-duty police officer - and sentenced to death.

I stumbled upon Maye's case in December 2005 while researching a paper on paramilitary drug raids for the Cato Institute. Having reviewed nearly a thousand drug raids, I found much troubling about Maye's case. I obtained copies of the search warrants and affidavits, and saw that Maye's name didn't appear on them.

I began writing about the case on my Web log. Then, blogs from across the political spectrum started speaking out against the apparent injustice. Events since have confirmed my suspicions.

In December, Prentiss Mayor Charles Dumas called Bob Evans, a public defender in Prentiss who served as Maye's chief counsel. Dumas told him that the town's aldermen were unhappy with his decision to represent Maye in his appeal. He told Evans he might even lose his job - an odd threat, given that as a public defender this was Evans' job. In January, Evans was fired.

By then Maye's plight caught the attention of Abram Pafford, an associate at the Washington, D.C., law firm Covington and Burling.

Pafford had been pushing his firm to offer pro bono assistance to Evans. In February, the firm came on board. Over the next several months, the new legal team conducted its own investigation, hired its own experts and assembled a new motion to overturn Maye's conviction.

Recently, a private investigator discovered the identity of the confidential informant: a poor, uneducated local resident named Randy Gentry, who later left a profane 45-second rant on the answering machine of one of the defense lawyers, complete with racial epithets and threats.

Last week in Poplarville, Miss., Maye was finally given a hearing on his post-trial motions. His new legal team mounted a vigorous defense, calling new expert witnesses, showing computer animations and presenting significant new evidence - the fruits of several months of investigation.

The hearing played out like a cinematic Southern courtroom drama. Maye's family had chartered a church bus to bring nearly 50 friends and family to fill out the defense side of the courtroom. On the prosecution side, Jones' family, Prentiss town officials and about a half-dozen police officers showed up in support of the state.

It's hard to fathom that Maye would have knowingly and intentionally killed a police officer. He had no criminal record, and at worst, a misdemeanor amount of marijuana in his home.

He is off death row for now, but that isn't enough. He ought to be released from prison. At the very least, he should be given a new trial.

What's more, Maye's case should provoke a national debate about drug policing, including the use of confidential informants and confrontational paramilitary tactics. Despite the predicament he's in, Maye at least now has the benefit of adequate counsel.

One wonders how many outrages like his still wait to be discovered.

Yet of everything the administration has undertaken in the name of this war, the NSA program is probably the easiest to justify. You'd never know that from listening to the critics, however. Senator Russ Feingold is quite certain that the president has broken the law, and he wants him censured. And on a personal note, my colleagues at the Cato Institute are mostly on the other side. So how can I view this as I do?

Start with the context, plus a few facts. None of what follows is meant to justify everything the administration has done, much less the war in Iraq - far from it. On so many fronts, those of us who stand for limited constitutional government are dismayed by this administration. Thus, I limit myself to the NSA program alone. And on that, the dominant fact initially is the absence of facts: none of us on the outside knows much about the program, and understandably so.

We do know, however, that foreign intelligence gathering is essential if we hope to prevent another 9/11. And we know that the 1978 Foreign Intelligence Surveillance Act (FISA), which imposes statutory restraints on that activity, is woefully out of date, much as the label critics slap on the NSA program, "domestic wiretapping," is both out of date and tendentious. We're not talking here about agents fixing alligator clips to wires connecting telephones. Couple today's technology with the surveillance problem before us, and the issues become far more complex than most critics imagine.

That surveillance problem was well stated by Judge Richard A. Posner of the Seventh Circuit in a Feb. 15 Wall Street Journal piece. FISA may serve "for monitoring the communications of known terrorists," he wrote, "but it is hopeless as a framework for detecting terrorists. It requires that surveillance be conducted pursuant to warrants based on probable cause to believe that the target of surveillance is a terrorist, when the desperate need is to find out who is a terrorist" (emphasis added), which he likened to looking for a needle in a haystack.

K.A. Taipale, executive director of the Center for Advanced Studies in Science and Technology Policy, sketches the technological problem in an article forthcoming in the N.Y.U. Review of Law and Security, "Whispering Wires and Warrantless Wiretaps." In modern networks, Taipale writes, communications are broken up into "discrete packets" that travel along independent routes and are then reassembled.

"Not only is there no longer a dedicated circuit, but individual packets from the same communication may take completely different paths to their destination. To intercept these kinds of communications, filters and search strategies are deployed at various communication nodes to scan and filter all passing traffic with the hope of finding and extracting those packets of interest and reassembling them into a coherent message. Even targeting a specific message from a known sender requires intercepting (i.e., scanning and filtering) the entire communication flow."

Were FISA strictly applied, Taipale concludes, no automated monitoring of any kind could occur.

There's the problem, tactical and technical, in barest outline. Clearly, for surveillance to serve us, we're going to have to make some changes. Fortunately, the Framers gave us a constitution that accommodates the modern world, but only if we read it rightly. Critics point to the guarantees of the Fourth Amendment. But let's remember that there are two rights at issue here: the right to privacy, addressed by the amendment, and the right to security, which is why we create government in the first place and give it its powers. And remember too that we have no right against warrantless but only against "unreasonable" searches. As a first strike on the normative side, I'll say simply that, insofar as "unreasonable" is informed by a cost-benefit analysis, the call seems clear: erring on the side of security costs little (indeed, you won't even know your call or email has been intercepted, much less have a loss); erring on the other side can have tragic costs, as we've seen and will see again below.

But administration critics lean more toward statutory and structural arguments. They point to FISA as the "exclusive" means through which Congress has authorized the president to gather foreign intelligence, and they dismiss his response that Congress's Authorization to Use Military Force (AUMF), passed right after 9/11, overrides FISA. To be sure, implied repeals are disfavored, as critics note, but that's not an absolute rule, as the Hamdi Court demonstrated. Hamdi had argued that federal law prohibited his detention and that the AUMF was silent on that law. Justice O'Connor's plurality opinion (joined by Justice Thomas on this point) held that the AUMF authorized the president to use "all necessary and appropriate force," and that entailed, as one of the "fundamental incidents of war," the power to indefinitely detain citizens declared to be enemy combatants. Surely, foreign intelligence gathering is at least as fundamental.

But statutory arguments don't go to the heart of the matter. In fact, they only muddy the constitutional waters by implying that the president may act pursuant only to congressional authorization - a contention at odds with the Constitution and with most of our constitutional history. Indeed, what we have here is a post-Vietnam gloss on the post-Progressive view of the Constitution. During the New Deal, recall, turn-of-the-century Progressives succeeded finally in "democratizing" the Constitution - in finding plenary power in Congress to regulate and redistribute at will, relegating to the executive the power to execute that "law." Years later, in the wake of the Vietnam War, this imperial Congress fixed its gaze on foreign affairs too, enacting not only FISA but, five years earlier, the War Powers Resolution, which administrations of both parties have said unconstitutionally encroaches on the president's inherent power, though the Court has yet to rule on that.

We need only look to the Constitution's vesting clauses to see that the modern view is problematic. In particular, Article I limits Congress's powers to those "herein granted"-enumerated mainly in section 8. By contrast, Articles II and III grant an unqualified "executive Power" and "judicial Power" to the president and the Supreme Court, respectively. The scope of those unqualified powers is no small matter, of course, requiring recourse to the original understanding. But by the same token, if Congress is to restrict the president's inherent power, it must find its authority in one of its enumerated powers, and that is no small matter either. Thus, critics tend to cite Congress's power "to make rules for the government and regulation of the land and naval forces." But that power was meant to enable Congress to establish a system of military justice outside the civil courts, not to enable it to micromanage foreign affairs.

This is hardly the place to plumb that original understanding. Suffice it to say that Yale's own John Yoo, now teaching at Berkeley's Boalt Hall, has done so masterfully in his new volume, The Powers of War and Peace, answering in the process the scholarly arguments for an imperial Congress that emerged a decade ago, in part again from Yale. But aside from the historical record, which shows that the president was to be the nation's principal agent in foreign affairs, restrained only by specific grants of congressional power "strictly construed," the courts to this day have largely upheld that arrangement.

Thus, administration critics often cite Youngstown, the 1952 steel seizure case, to buttress their argument. But they forget that Justice Jackson carefully distinguished that domestic case from one involving external affairs: "I should indulge the widest latitude of interpretation to sustain [the president's] exclusive function to command the instruments of national force, at least when turned against the outside world for the security of our society." (emphasis added) The Court made a similar distinction in the often cited 1972 Keith case involving solely internal threats from domestic organizations.

And as recently as November 2002, in In re: Sealed Case, the FISA Review Court spoke directly about inherent presidential power. Citing an earlier case called Truong that dealt with pre-FISA surveillance based on "the President's constitutional responsibility to conduct the foreign affairs of the United States," the court said: "The Truong court, as did all the other courts to have decided the issue, held that the President did have inherent authority to conduct warrantless searches to obtain foreign intelligence information.... We take for granted that the President does have that authority and, assuming that is so, FISA could not encroach on the President's constitutional power." The Supreme Court let the decision stand.

None of this is to say that Congress is powerless to restrain the president. It has, in particular, the power of the purse and, ultimately, the power of impeachment. But in exercising those and other enumerated powers, it must be careful not to intrude on the president's inherent power. There is no bright line here, of course, and politics will and doubtless should play a larger role than law in drawing lines, just as cooperation between the branches is better than the confrontation this administration tends toward. But it is the modern tendency toward congressional micromanagement that must be avoided.

Indeed, do we need any better evidence of that than has come recently from the trial of Zacarias Moussaoui? Echoing the earlier complaints of former F.B.I. agent Colleen Rowley, current agent Harry Samit recounted how he tried desperately to obtain a FISA warrant to search the computer of Moussaoui, then in custody on an immigration violation. But superiors at the Justice Department declined his request, fearing that Samit did not have enough to satisfy FISA's requirements. In other words, only days before 9/11, we erred on the side of privacy, and we paid the price. Fortunately, the Senate has come recently to appreciate that: its earlier push to hobble the president has now abated.

A person who opposes same-sex marriage on policy grounds can and should also oppose a constitutional amendment foreclosing it, on grounds of federalism, confidence that opponents will prevail without an amendment or a belief that public policy issues should only rarely be determined at the constitutional level.

There are four main arguments against the amendment:

• First, a constitutional amendment is unnecessary because federal and state laws, combined with the present state of the relevant constitutional doctrines, already make court-ordered nationwide same-sex marriage unlikely for the foreseeable future. An amendment banning same-sex marriage is a solution in search of a problem.
• Second, a constitutional amendment defining marriage would be a radical intrusion on the nation's founding commitment to federalism in an area traditionally reserved for state regulation, family law. There has been no showing that federalism has been unworkable in the area of family law.
• Third, a constitutional amendment banning same-sex marriage would be an unprecedented form of amendment, cutting short an ongoing national debate over what privileges and benefits, if any, ought to be conferred on same-sex couples and preventing democratic processes from recognizing more individual rights.
• Fourth, the amendment as proposed is constitutional overkill that reaches well beyond the stated concerns of its proponents, foreclosing not just courts but also state legislatures from recognizing same-sex marriages and perhaps other forms of legal support for same-sex relationships. Whatever one thinks of same-sex marriage as a matter of policy, no person who cares about our Constitution and public policy should support this unnecessary, radical, unprecedented, and overly broad departure from the nation's traditions and history.

Members of Congress have proposed a constitutional amendment preventing states from recognizing same-sex marriages. Proponents of the Federal Marriage Amendment claim that an amendment is needed immediately to prevent same-sex marriages from being forced on the nation. That fear is even more unfounded today than it was in 2004, when Congress last considered the FMA. The better view is that the policy debate on same-sex marriage should proceed in the 50 states, without being cut off by a single national policy imposed from Washington and enshrined in the Constitution.

A person who opposes same-sex marriage on policy grounds can and should also oppose a constitutional amendment foreclosing it, on grounds of federalism, confidence that opponents will prevail without an amendment, or a belief that public policy issues should only rarely be determined at the constitutional level.

There are four main arguments against the FMA. First, a constitutional amendment is unnecessary because federal and state laws, combined with the present state of the relevant constitutional doctrines, already make court-ordered nationwide same-sex marriage unlikely for the foreseeable future. An amendment banning same-sex marriage is a solution in search of a problem.

Second, a constitutional amendment defining marriage would be a radical intrusion on the nation's founding commitment to federalism in an area traditionally reserved for state regulation, family law. There has been no showing that federalism has been unworkable in the area of family law.

Third, a constitutional amendment banning same-sex marriage would be an unprecedented form of amendment, cutting short an ongoing national debate over what privileges and benefits, if any, ought to be conferred on same-sex couples and preventing democratic processes from recognizing more individual rights.

Fourth, the amendment as proposed is constitutional overkill that reaches well beyond the stated concerns of its proponents, foreclosing not just courts but also state legislatures from recognizing same-sex marriages and perhaps other forms of legal support for same-sex relationships. Whatever one thinks of same-sex marriage as a matter of policy, no person who cares about our Constitution and public policy should support this unnecessary, radical, unprecedented, and overly broad departure from the nation's traditions and history.