Sheridan: Con-Law

A MODEST THOUGHT EXPERIMENT

If Bush & Co. can ignore constitutional provisions such as the Fourth Amendment search and seizure guarantee (no unreasonable searches, no general searches, and no warrants w/o probable cause specifically describing the person, place, and things sought), in the name of national security,

then why can't he equally well ignore the Fifth Amendment guaranty prohibiting the taking of life, liberty, and property without due process of law?

In the case of life and liberty, this means the full panoply of rights for those accused criminally (but not as to POWs during war).

In the case of property, the taking must be for a public purpose (but this can be interpreted broadly under the recent Kelo v. New London (2005) case) and be compensated.

We already know that Pres. Bush held or is holding people for years w/o bringing charges, including a U.S. citizen (Padilla), so there goes that portion of the 5th.  However the Supreme Court, with O'Connor writing, held that the president has no "blank check" to ride rough-shod over the Constitution even despite claims of national security, in the Hamdi opinion, I believe it is.

But suppose the president took your home w/o compensation, claiming he had authority under the Constitution to protect the country; say your home was along the Narrows, the Bay, the river, the ocean, etc.,  and he wanted to station troops or make sure there were no lights or signals sent to vessels.

Or suppose that he maintained that since the 9-11 attackers were found to be Muslim followers of the Wahabi branch of Islam from Saudi Arabia, and that he felt that Islam was the underlying problem, so he decides to expropriate w/o compensation all mosques, by virtue of his power to protect the national security.

And suppose further that another president comes along who thinks that religion in general is causing a bunch of terrorist attacks, what with members of one religion fighting another, so, for the public good, he's going to take over all the houses of worship of all kinds, stamp out religion, and use or sell the properties for low-income housing, perhaps for Katrina survivors down South.

What would be wrong with that, since, after all, he has the power, he claims, to suspend or ignore or over-ride some constitutional provisions in the name of national security, and it is, after all, for our own good?

Why can't the president just cherry-pick through the constitutional powers and prohibitions and keep the ones he likes and jettison the rest?

After all, it IS for our own good, isn't it?

Up with Bush, Cheney, Ashcroft, Gonzales, Powell ("I have seen the evidence and it is good."), Rice, Bybee, and Yoo (the torture memo writers who justified the very things that are disgracing us throughout the world, civilized and not).

Justice Scalia appears to think that the constitution is no more than a list containing some rights and leaving the rest out.

So why not just chuck the whole thing when we get scared enough?  New York gets attacked, the buildings fall, and so does the Constitution along with it? 

The buildings fall, 3,000 civilians die, and we say the terrorists have NOT won.  We continue with baseball and the Superbowl.  Good for us.  We're strong and brave.

The buildings fall, 3,000 die, and the Constitution collapses.

That's when we know that the terrorists have REALLY won.

Scalia, by taking the life out of the Constitution, as he appears to do by calling "idiots" the people who have a certain faith that it can be interpreted over the long haul, despite mishaps, according to the "better angels of our nature," to quote Lincoln in his 2d Inaugural, makes it easier to ignore our tradition of overcoming our mistakes.  Those who think the Constitution is a living thing, metaphorically speaking, which evolves, again metaphorically, have hope, if not faith, that we'll do the right thing by-and-large, albeit perhaps not in all particulars.  We'll sort those out as we go along.

This is how we eliminated slavery.  I know, it took a bloody war, 600,000 dead.  Following that we first institutionalized racism, legally, for a hundred years, calling it Jim Crow.  Fifty years ago we knocked a piling out from under it, a couple of pilings, in fact:  racially restrictive covenants in deeds preventing black home ownership in white neighborhoods (Shelley v. Kramer, 1948), and in public school education (Brown v. Board, 1954).  This is as far as we've gotten in 50+ years.  There's a long way to go.  Public schools are as segregated now as they ever were, according to at least one researcher who now has a book out, name I don't recall.

So many of the advances in liberty for women, married couples, individuals seeking to express themselves artistically, sexually, and in other ways, owe their existence to judicial interpretation that can only be seen as part of the so-called living, evolving school of constitutional interpretation.  They wouldn't exist under Scalia's restricted notion of what legal tools of doctrine are available to him and his colleagues.

He would, and should, no doubt reply by turning the tables, saying, what if the worst justice you can think of had his or her way to do whatever he or she pleased.  Would you like that?  No I wouldn't.  I'm thinking of Chief Justice Roger B. Taney, of Dred Scott fame, who held that a whole class of citizens, four million in number, blacks, had no rights of which the white man was bound to respect, in 1857.  It accelerated the coming on of the Civil War.  The Constitution evolved the wrong way that time.

Like it or not, every time the Supreme Court pulls the shape of the Constitution one way or another via the decision-making process, where the result of private litigation is public law and policy for the nation, see Cooper v. Aaron, the Constitution is to that extent amended, or evolved, to use the term that describes the substitute for the amendment process.

During the period of the Warren Court, the trend of the evolution was in favor of greater individual rights versus the power of government to control individual decision-making power and governments power to classify people by putting them in legal boxes they didn't wish to be in, such as second-class status for minorities.

During the period of the Burger Court, the trend of evolution was to slow down.

During the period of the Rehnquist Court, the Chief Justice sought to turn the train around.  Whether he succeeded or not remains to be seen, but the indications aren't good.  He picked a president, Bush, who appointed a Rehnquist clerk, Roberts, as replacement when Rehnquist died.  Bush also picked the conservative Samuel Alito. 

Both MAY tend to more favor the Scalia view restricting the power of the court to expand individual rights versus government.

But the fact is that you can never tell.  Scratch a conservative and you may find a libertarian, the one person who dislikes intrusive government power more than a liberal.

We may be surprised.

The issues may change.

Today's conservative may be tomorrow's liberal, just as yesterday's liberals are today's neo-conservatives.

You know what that is, don't you?

A neo-conservative is a liberal who's been mugged.

GEORGE BUSH OR GEORGE III?

Director of National Intelligence Gen. Michael V. Hayden says in a published interview at his agency's site not to worry, he's only going in "hot pursuit" of "coms" of interest, meaning linked to a bad guy.

He quibbles over the word "reasonable" as in "reasonable cause" aka "probable cause."  Both words appear in the same clause of the Constitution, below, hence a violation is serious, or as the scholars say, "of Constitutional dimension."

At issue is the protection granted to individuals by the Fourth Amendment which restrains on the federal government in war and peace from conducting searches not only against you and me (presumably good guys), but bad guys as well.

Well, you say, of course my government, which I proudly served, has no interest in me, but only in bad guys.  Why not just tell the government it can only go after bad guys and not good.  That will solve the problem, right?

Not so fast.

You may be a good guy today, but tomorrow you may be a bad guy because you said the wrong thing.  Look at the two arrests in the House last evening at the president's state of the union address.  The war protester Cindy Sheehan was arrested for wearing a t-shirt protesting the war.  A Congressman's guest (and wife) was confronted and thrown out by police for wearing a red-white-and-blue "Support the Troops" t-shirt.  Both in possible violation of the freedom of speech guarantee of the Bill of Rights.  The basis of the arrest was the alleged violation of a rule against demonstrations within the chamber.  Police have apologized and released the prisoners.

The guarantees are important and we have every right to rely on them in war and in peace.  Al Qaeda may have dropped a couple of big buildings in New York, and damaged the Pentagon, etc., but it didn't, as far as I know, topple the Constitution.  If it did, with GWB's help, its attack was a FAR greater feat than of mere technical ingenuity.

The Fourth Amendment, part of the Bill of Rights package added in 1791 as part of a deal to ratify the Constitution was insisted on by the founding generation who objected to forming a government having no restraints on the power of a central government.  They'd just fought a very long (eleven years) revolution at the cost of a lot of blood, toil, and bankruptcy.  We were bankrupt before we got started.  We didn't want to trade a British monarch for an American one.  We knew us pretty well even then, make that especially then.  And now. 

George Bush is a tyrant, although he'll deny it because his heart is pure, just as George III's was.  Both only want to do what's right by the country.  After all, that's what a monarch does, doesn't he.

What makes a guy a monarch?  GWB doesn't wear a crown, as GIII did, so how can you tell?

You can't, except by words and deeds.  You have to make judgments, and the people who do that, in the absence of a God or one of his priests, is you and me and our fellow citizens.

Here's the guarantee of the Fourth Amendment against which GWB must be judged a tyrant or not.  You do not need to be a lawyer to follow this discussion.  For Gen. Hayden to say "I'm not a lawyer, so don't ask me what reasonable or probable cause is" is a cheap cop-out.  Cops on the beat are state agents empowered by the state to employ the state's power to arrest you and me if there is reasonable and probable cause to believe we have gotten out of legal line, i.e. committed a criminal offense.  We trust them to make reasonable interpretations even though they're not lawyers.  We don't excuse a cop who uses unreasonable force, for example, simply because he says, "Hey, I'm just a dumb cop, not a lawyer, so don't blame me for my bone-headed moves."  That ain't the way it works.  Cops, and generals and presidents, are expected to "articulate" meaning to explain in words, the factual basis of their acts.  As in I suspected that so-and-so was acting in league with Al Qaeda because he sent money to Mo, one of the attackers, not just rented him an apartment.  Normally we don't blame the landlord for the activity of the tenants.

"The right of the people to be secure in their persons, houses, papers, and EFFECTS, against UNREASONABLE searches and seizures, shall not be violated, and no Warrants shall issue, but upon PROBABLE CAUSE, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized."

I've highlit the relevant language.  "Effects" is the elastic clause, encompassing future technologies undreamt of in 1791, such as the internet.

Reasonable or probable cause to believe simply means facts providing a basis of belief that an honest and reasonable policeman or intelligence agent would conscientiously entertain as justification for taking action, such as searching or arresting.

Remember that the purpose of the guarantee was to plug the loophole in the rule that "a man's home is his castle" which allowed Redcoats to kick in your door to see whether you were hiding contraband (tea, not cocaine, in those days).  And all the doors on your street to check your neighbors, too.  And then to sleep in your house (Amend. 3, against quartering Redcoats).   Such warrantless searches were called "general searches."  You see something like it when the highway patrol sets up a roadblock to search all cars for drunk drivers, or for bodies in trunks, or smuggled aliens.

Gen. Hayden is copping out when he says he's not a lawyer.  Bush is copping out when he says he asked the best lawyers he appointed if his conduct is okay, and they say it is, and he ain't no lawyer, so don't blame him if he got it wrong.

The buck stops on the president's desk, as Harry S Truman famously said.  That's the same desk, same oval office, as Bush occupies.  He's responsible for upholding the Constitution, not acting as though it doesn't exist.  He owes it to you and me to be straight with us, not lie to us on important matters like the Constitution.

In fact the Fourth Amendment has been subject to a very great deal of litigation as to what constitutes probable cause and whether a search is unreasonable.  A search is unreasonable by definition if conducted without having obtained a warrant in advance.  You can't kick in all the doors on a block, or in a hotel, to find the drugs or contraband and THEN get the warrant.  Not that police haven't done this, of course.  It's just that it's illegal as hell and our courts have repeatedly so held.

This comes up in criminal cases where the police have searched for or seized evidence, such as after detaining a suspect and that includes his car and house as well as person.  It doesn't include his family and friends even if they're right next to him, altho' they may be patted down for weapons for officer safety and sometimes immobilized temporarily for the same reason.

If the Administration needs more time than 72-hours to search first and then get a warrant, as the Foreign Intelligence Security Act  (FISA) permits, as an apparent exception to the Fourth Amendment protection enacted by Congress [can it do that?  W/o amending the Constitution?], it can ask Congress to change the statute.  Since Congress hasn't seen fit to do that, so far, the Administration is bound to honor the Constitution; you know, the one Bush took an oath to uphold and defend?

Bush says, "Well, I'm the president, ain't I?  Don't we have a war on, that Al Qaeda started?  Ain't I a "war president" like FDR was?  Don't I have a sworn duty to protect this ungrateful country full of critics who don't appreciate all Ah'm doin' fer 'em?"

All I can say is that I expect the other branches to rein in a maverick like Bush when he strays off the ranch.  I expect Congress to snap at his heels until he returns.  I expect the Supreme Court to say, "Hey, Bush, you don't have a 'blank check' to ride rough-shod over the Constitution; we already told you that once."

Since the government works for you and me, we also have the duty to speak up when the president has gone off the reservation.  If he's on the rez, he's our president; if he strays, he's George III.  That's the way it works.

What's your judgment?  In formulating your answer, you are not permitted to relax the rules to permit violations of the Constitution.  You may propose an amendment, offer a saving interpretation, or claim that unforeseen circumstances have arisen requiring emergency action amounting to a temporary suspension of the normal constitutional rules, but here you'll be off the thin ice into the cold water, as only Congress may legally suspend the writ of habeas corpus in cases of invasion or rebellion, according to the Constitution (Art. I, Sec. 9, Cl. 2  "The privilege of the Writ of Habeas Corpus shall not be suspended, unless when in Cases of Rebellion or Invasion the public Safety may require it."

Lincoln, not the Congress, did exactly that (suspend habeas corpus) during the Civil War (a Rebellion), but Congress later ratified the action.  Lincoln also discovered that arresting outspoken politicians who opposed him, and newspaper editors, caused such a huge backlash that he directed his generals to lighten up. 

Habeas corpus refers to the court order that requires Bush and the officers acting under him to come to court with whoever they've detained to state the legal basis, otherwise they must release.  The courts thus act as the governor on the motor, requiring the executive branch to cease illegal activity when it comes to light and a case is properly brought.  We seem to regard it the proper sphere of the judicial branch to knock the president back into line, even when Congress fails to respond to the alarm bell.  See Marbury v. Madison (1803) and Cooper v. Aaron (1956).

Since this is a legal argument, flag-waving arguments don't count.  You've got to think for this one, not just feel or believe.

The article linked below is from the Christian Science Monitor.  It sets forth Bush's position and the opposing view to help inform your judgment.

[URL=http://tinyurl.com/8ggeh]http://tinyurl.com/8ggeh[/URL]

OPPOSES DRED SCOTT (READ ROE)

Timothy Noah at Slate has this take on President Bush's denunciation (in Friday's debate with Kerry) of the Dred Scott pro-slavery opinion of the Supreme Court, 1857, written by Roger B. Taney, C.J., that helped bring on the Civil War. Called the Supreme Court's "self-inflicted" wound. Uses property law theory to de-humanize people entirely. Quite Nazi-like in understanding and intent. Our own Holocaust.

According to Noah, denouncing the Dred Scott opinion as just the personal opinion of the pro-slavery justices is code-signal to the Republican right-wing that the president is really saying that Roe v.Wade, the decision that recognizes a woman's constitutional right to choose whether to remain pregnant, is just as bad because you can't find the word 'abortion' in the Constitution.

No, you can't, nor can you find other rights that even the right wing holds important, such as the right to raise your children in your religion and to send them to schools that will teach them your language (see the Meyers and Pierce cases from 1923,4 written by one of the most ugly-conservative justices of all time, McReynolds; Griswold (privacy, contraceptives) relied on them both). McReynolds actually struck a blow for liberty. His personal opinion, of course, but one that we can all admire. Even reactionaries don't like to have their rights trampled upon by government. Especially reactionaries.

Denouncing Dred Scott today is a bit like denouncing Nazism. Fine, but not exactly in issue at the moment, unless it's substituting for something else that's really on fire, like the abortion civil war.

Do you think it's okay for the justices to allow their personal opinions influence their vote?

When?

If you think it's NOT okay for them to do so, how would you prevent it?