Sunday, July 10, 2005

Thoughts on the SCOTUS

With the end of the recent Supreme Court term and some of its more ludicrous decisions, I thought it was time to reread the Bill of Rights to see if I missed something the Court was able to see. After carefully reading the document, which is elegant in its simplicity, I don't think I'm the one confused. How could nine highly-educated lawyers twist such simple words? Because they can rely on previous ignorant and/or stupid rulings to justify not ruling based on the words in the document.

Amendment IV

In the last few years, the US Patriot Act and other well-intentioned but misguided laws were passed to protect us from terrorists foreign and domestic. Unfortunately, many of these laws have been upheld by a court system unwilling to enforce the Fourth Amendment:

Amendment [IV] 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.

Let's break this down for the legal beagles: "unreasonable" might imply some wiggle room to lawyers, but to the rest of us it means you have to have some darn good evidence before violating our persons, houses, papers, or effects. You can try to claim e-mail isn't the same as paper, but that's really stretching credulity. Do you think the Founding Fathers would see e-mail and computer files as somehow not analogous to paper documents?

Notice the police and federal investigators are required to have a warrant for a specific place describing exactly what is to be seized. This does not mean you can draft a warrant for "everything and anything we find" in someone's house. That's simply absurd.

Amendment V

The Fifth Amendment is a meandering attempt to cram in everything the Founders could think of regarding personal property. This one amendment was meant to protect citizens from malicious prosecutors (unless you're in the military, when the Founders assumed there was no time for lengthy legal processes); double jeopardy for the same crime; self-incrimination in court; and from the taking of private property for public use without "just" compensation.

Amendment [V] No person shall be held to answer for a capital, or otherwise infamous crime, unless on a presentment or indictment of a Grand Jury, except in cases arising in the land or naval forces, or in the Militia, when in actual service in time of War or public danger; nor shall any person be subject for the same offence to be twice put in jeopardy of life or limb; nor shall be compelled in any criminal case to be a witness against himself, nor be deprived of life, liberty, or property, without due process oflaw; nor shall private property be taken for public use without just compensation.

Now, let's try to explain some things to those deft (or daft) legal minds in black robes. First, just because the Fifth Amendment protects us from double jeopardy doesn't give prosecutors the right to change one criminal act into a long list of "counts" and various other crimes. This miserable misunderstanding was a twentieth-century ruling and author-editor H. L. Mencken roundly criticized it at the time. You cannot take one crime and make it a dozen just so you have some chance at a conviction. Yes, members of the general public might like this safety-net approach... until one of them is charged with two-dozen counts for one offense. No wonder innocent people are convicted of crimes.

As for private property being taken for the public use with just compensation, the 2004-05 session of the Court managed to misconstrue what a "public use" is, somehow counting generating more taxes as a public use. Selling the land to a private developer is not public use. A road, a school, and a generally useless government office building might be a public use, but a shopping mall or sports arena is not a public use. Worse, once a city can take land for "redevelopment" purposes, who will determine what "just" compensation is? Clearly the land must be pretty valuable if the private developer cannot offer enough money to move someone from the land. In my opinion, land is worth whatever the owner is charging.

Amendment IX and X

Now it is time to upset the religious conservatives, a set of people set on reminding us that the right to privacy is not in the Constitution. The Ninth Amendment is one of the shortest sentences in the Bill of Rights and the Tenth Amendment is only slightly longer.

Amendment [IX] The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people.

Amendment [X] The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people.

Simply because you don't see a right named in a document written by a bunch of dead white men doesn't mean the right does not exist. It is pretty clear these were men who did value privacy, or there wouldn't be a Fourth Amendment or a Fifth Amendment. There is an implied right to privacy throughout the document. You can do what you want, with whom you want, in the privacy of your own house. Medical records are papers, so it seems you can pretty much tell your doctor anything, too.

It takes a lot for the government to affect your "life or limb(s)," so it seems issues like the government should keep its huge and intrusive collective noses out of your business.

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