“I cannot, and will not, consent that the majority of any republican State may, in any way, rightfully restrict the humblest citizen of the United States in the free exercise of any one of his natural rights,” which are “those rights common to all men, and to protect which, not to confer, all good governments are instituted.”

John A. Bingham (Judge, Congressman, and the principal author of the 14th amendment)

As quoted in the Appellants brief in McDonald v. City of Chicago(my emphasis added).

All too often one hears men say ‘the constitution gives us the right” or even “the government gives us the right”.

This is simply false. Governments cannot confer rights on someone. Rights are those things that are common to all men. Those things that we have, and which cannot be taken away from us but by force, fraud, or willing consent.

Governments exist, for the sole purpose of protecting and furthering those rights; and no other.

More important, there is something fundamentally authoritarian about the tenther constitution. Social Security, Medicare, and health-care reform are all wildly popular, yet the tenther constitution would shackle our democracy and forbid Congress from enacting the same policies that the American people elected them to advance. After years of raging against mythical judges who “legislate from the bench,” tenther conservatives now demand a constitution that will not let anyone legislate at all.

Huh… So by not wanting a hugely powerful federal government regulating and monitoring every aspect of my life, I’m an authoritarian?

I guess if Ian Millhiser would call himself anti-authoritarian — which I would guess he does — he’ll support letting us “tenthers” opt out of these government programs for which we disagree? After all, we don’t want to impede his ability to have the government he wants, as long as we don’t have to have the government he wants too.

Hat Tip: Popehat

Two Hundred Twenty Two years ago in Philadelphia, the Constitution Convention in Philadelphia completed it’s work.

At the close of the Constitutional Convention in Philadelphia on September 18, 1787, a Mrs. Powel anxiously awaited the results, and as Benjamin Franklin emerged from the long task now finished, asked him directly: “Well Doctor, what have we got, a republic or a monarchy?” “A republic if you can keep it” responded Franklin.

222 years later, Mrs. Powell’s question, and Franklin’s response, remain undecided.

Do yourself a favor — read The Constitution, and then ask whether we’re still following it the way the Founders intended, and whether we’re going to be able to keep the Republic that Franklin was talking about.

“This court has never held that the Constitution forbids the execution of a convicted defendant who has had a full and fair trial but is later able to convince a habeas court that he is ‘actually’ innocent. Quite to the contrary, we have repeatedly left that question unresolved, while expressing considerable doubt that any claim based on alleged ‘actual innocence’ is constitutionally cognizable.” – From the dissenting opinion by Justices Scalia and Thomas on the question of whether death row inmate Troy Davis should receive a new trial after 7 eye witnesses against him recanted their testimonies against Davis.

So as long as the defendant has received a ‘fair trial’ and found guilty, actual innocence does not matter and the state can kill an innocent person according to Scalia and Thomas?

And these are who conservatives and some libertarians consider the ‘good guys’ on the Supreme Court? They certainly aren’t on this issue.

Hat Tip: The Daily Beast

First reason being that compared to the other cases I’ve written about here and elsewhere, this is a very minor case of police misconduct. I have yet to read or hear any reports that Mr. Gates was roughed up even a little bit.

Second, Mr. Gates seems like a real ass. Gates seems to be someone who has a chip on his shoulder and apparently views the world in black and white (i.e. if the police as much as ask a question, s/he is a racist!). A woman saw 2 men trying to break into Gate’s home; unbeknownst to the woman, one of the men was the resident of the home. The woman even said as much on the 911 call:

“I don’t know what’s happening. … I don’t know if they live there and they just had a hard time with their key, but I did notice they had to use their shoulders to try to barge in…”

Now some people are calling her a racist for making the call to the police to begin with!

Third, like President Obama, I “don’t have all the facts” but unlike the president, I’m not going to say definitively that the police “acted stupidly.” There are no videos that documented the encounter and I wasn’t there so I cannot make a judgment as to who acted stupidly or to what degree. My best guess, based on what I have read about the case, is that both Mr. Gates and Sgt. Crowley acted inappropriately and overreacted.

So why have I decided to weigh in now you ask? I think the reason has to do mostly with the fact that this story won’t go away and with so much commentary in the MSM, talk radio, and the blogosphere, I can’t help but offer my 2 cents because certain aspects of this saga trouble me.

I am troubled that this case has turned into a race issue. This was not a case where a white police officer pulled over a black man for DWB. The police responded to a 911 call of a possible break in. This is what the police are supposed to do!

I am troubled that the president would make a public statement without knowing more about the facts of the case. For whatever reason, President Obama thought that this would be the perfect opportunity to opine about the historically troubled relationship between racial minorities and the police. Whether or not the president has a legitimate case to make, this case is not what I would consider a good example of the police racial profiling. What he should have said was something like: “Mr. Gates is a friend of mine but I don’t know all the facts; it would be inappropriate for me to comment about this case at this time.”

I am troubled that (apparently) the police did not leave Mr. Gates home once he identified himself as the home’s rightful resident, thus proving no crime had been committed.

I am troubled with how the police can apparently arrest someone for disorderly conduct for just about any reason they wish. While I do believe that Mr. Gates acted like an ass…since when is that a crime? Sure, he yelled some nasty things at the police when he should have been thanking them for investigating what appeared to be an unlawful break in, but how is making his displeasure known to the police disorderly conduct? I believe Doug is right: arresting Gates in this case was an unconstitutional voilation of his civil rights.

I am troubled by the way certain commentators such as Glenn Beck have gone off the deep end on Obama’s handling of this case, even going as far as calling the president a racist. I didn’t like it when people called Bush a racist and I don’t like it when people call Obama a racist*. That is a hell of a nasty charge to make of anyone (and if one does make that charge, they should have some damn good proof). Like I said before, Obama mishandled this situation but to say he is racist for commenting on race relations with the police (however inappropriate in using this case as an example) is a bridge too far.

I am troubled that other commentators say that because Obama said that the police “acted stupidly” that this is a slap in the face to police officers everywhere…as if he called all police officers stupid. What complete nonsense. I think its worth pointing out that Obama called the actions of the police stupid; he did not call the police stupid. This is a very important distinction. Even the most intelligent, honest, and morally upstanding individual acts stupidly at times. Not even college professors, police officers, or world leaders are immune from this.

Yes, this is indeed a teaching moment. Its just too bad that too many people seem to be learning the wrong lessons.

*This coming from someone who is not a fan of either president.

Civil liberties attorney Harvey Silvergate agrees:

Under well-established First Amendment jurisprudence, what Gates said to Crowley–even assuming the worst–is fully constitutionally protected. After all, even “offensive” speech is covered by the First Amendment’s very broad umbrella

(…)

Today, the law recognizes only four exceptions to the First Amendment’s protection for free speech: (1) speech posing the “clear and present danger” of imminent violence or lawless action posited by Holmes, (2) disclosures threatening “national security,” (3) “obscenity” and (4) so-called “fighting words” that would provoke a reasonable person to an imminent, violent response.

As Silvergate goes on to discuss in an article well-worth reading, none of these four exceptions can reasonably be said to have applied to the confrontation between Crowley and Gates. Additionally, as Jacob Sullum notes, neither would Massachusetts state law on disorderly conduct justify the arrest in this case:

In Massachusetts, as in many states, the definition of disorderly conduct is drawn from the American Law Institute’s Model Penal Code. A person is considered disorderly if he “engages in fighting or threatening, violent or tumultuous behavior…with purpose to cause public inconvenience, annoyance or alarm” or “recklessly creates a risk thereof.”

Crowley claims Gates recklessly created public alarm by haranguing him from the porch of his house, attracting a small crowd that included “at least seven unidentified passers-by” as well as several police officers. Yet it was Crowley who suggested that Gates follow him outside, thereby setting him up for the disorderly conduct charge.

It’s hard to escape the conclusion that Crowley was angered and embarrassed by Gates’ “outburst” and therefore sought to create a pretext for arresting him. “When he has the uniform on,” Crowley’s wife later told The New York Times, “Jim has an expectation of deference.”

As the Massachusetts Appeals Court has noted, “the theory behind criminalizing disorderly conduct rests on the tendency of the actor’s conduct to provoke violence in others.” Yet police officers often seem to think the purpose of such laws is to punish people for talking back to cops.

And yet, that’s not what the law says, as Massachusetts’ highest Court has recognized:

The officers’ presence, alone, did not suffice to prove the public element, regardless of any concern they may have felt as they witnessed the defendant’s confrontation with Sergeant Boss. As recognized in the commentaries to the Model Penal Code, behavior that has an impact only upon members of the police force is significantly different from that affecting other citizens in at least two respects: it is an unfortunate but inherent part of a police officer’s job to be in the presence of distraught individuals; and, to the extent that the theory behind criminalizing disorderly conduct rests on the tendency of the actor’s conduct to provoke violence in others, “one must suppose that [police officers], employed and trained to maintain order, would be least likely to be provoked to disorderly responses.” Model Penal Code § 250.2 comment 7, at 350. Accordingly, police presence in and of itself does not turn an otherwise purely private outburst into disorderly conduct.(9)

In other words, the mere act of talking back to a cop does not constitute a crime and should not justify arrest.

Gates was a hothead, but Crowley stepped outside the bounds of his Constitutionally-limited authority.

Now Dr. Ron Paul’s prescription for reforming healthcare in America

Reuters Reports:

“Because there were no reasons to suspect the drugs presented a danger or were concealed in her underwear, we hold that the search did violate the Constitution,” Justice David Souter wrote for the court majority.

The school’s policy prohibits the use, possession or sale of any drug on school grounds, including prescription and over-the-counter medications. A week before the search, a student became sick after taking pills from a classmate and said certain students were bringing drugs to school.

Following an assistant principal’s orders, a school nurse had Redding remove her clothes, move her bra to the side and pull her underwear out, exposing her breasts and pelvic area, to see if she was hiding any ibuprofen pills.

[…]

Only Justice Clarence Thomas dissented from the part of the ruling that Redding’s privacy rights had been violated.

Thomas said the ruling “grants judges sweeping authority to second-guess the measures that these officials take to maintain discipline in their schools and ensure the health and safety of the students in their charge.”

While the court agreed that the school district violated Redding’s privacy rights, only Justices Ginsburg and Stevens believed the school administrators should be held liable; the remaining Justices believed that prior to this ruling, the law had not been clearly established.

The ACLU attorney Adam Wolf who represented Redding was also quoted in the article saying: “Today’s ruling affirms that schools are not constitutional dead zones. Savana … is pleased that other students will not have to go through the trauma that she experienced.”

I think we sometimes forget that public school teachers and administrators are actually agents of the government. At times, schools have become “constitutional dead zones” but we should always remember that government agents of all kinds should be expected to respect legitimate rights of students. If the school administrators had good reason to believe that Redding had contraband, they could apply for a search warrant and allow the proper authorities to conduct the search.

First, some excerpts from Justice Roberts:

A criminal defendant proved guilty after a fair trial does not have the same liberty interests as a free man. At trial, the defendant is presumed innocent and may demand that the government prove its case beyond reasonable doubt. But “[o]nce a defendant has been afforded a fair trial and convicted of the offense for which he was charged, the presumption of innocence disappears.” Herrera v. Collins, 506 U. S. 390, 399 (1993). “Given a valid conviction, the criminal defendant has been constitutionally deprived of his liberty.” Dumschat, supra, at 464 (internal quotation marks and alterations omitted). (p. 15)

Osborne seeks access to state evidence so that he can apply new DNA-testing technology that might prove him innocent. There is no long history of such a right, and “[t]he mere novelty of such a claim is reason enough to doubt that ‘substantive due process’ sustains it.” Reno v. Flores, 507 U. S. 292, 303 (1993). (p. 19)

Establishing a freestanding right to access DNA evidence for testing would force us to act as policy makers, and our substantive-due-process rulemaking authority would not only have to cover the right of access but a myriad of other issues. We would soon have to decide if there is a constitutional obligation to preserve forensic evidence that might later be tested. Cf. Arizona v. Youngblood, 488 U. S. 51, 56–58 (1988). If so, for how long? Would it be different for different types of evidence? Would the State also have some obligation to gather such evidence in the first place? How much, and when? No doubt there would be a miscellany of other minor directives. See, e.g., Harvey v. Horan, 285 F. 3d 298, 300–301 (CA4 2002) (Wilkinson, C. J., concurring in denial of rehearing).

In this case, the evidence has already been gathered and preserved, but if we extend substantive due process to this area, these questions would be before us in short order, and it is hard to imagine what tools federal courts would use to answer them. At the end of the day, there is no reason to suppose that their answers to these questions would be any better than those of state courts and legislatures, and good reason to suspect the opposite. See Collins, supra, at 125; Glucksberg, supra, at 720.” (p. 20 & 21)

I think Roberts is making this issue more complicated than necessary. As he points out, the evidence has been preserved. There is no need to get into “policy making” to say that the DA must allow Osborne access to the sample that the DA physically possesses. And even if the presumption of innocence disappears and the burden of proof falls on Osborne to prove his innocence, how can he possibly attempt to do so without having the sample?

Now an except from Alito:

Respondent was convicted for a brutal sexual assault. At trial, the defense declined to have DNA testing done on a semen sample found at the scene of the crime. Defense counsel explained that this decision was made based on fear that the testing would provide further evidence of respondent’s guilt. After conviction, in an unsuccessful attempt to obtain parole, respondent confessed in detail to the crime. Now, respondent claims that he has a federal constitutional right to test the sample and that he can go directly to federal court to obtain this relief without giving the Alaska courts a full opportunity to consider his claim […]

[…]

[E]ven though respondent did not exhaust his state remedies, his claim may be rejected on the merits, see §2254(b)(2), because a defendant who declines the opportunity to perform DNA testing at trial for tactical reasons has no constitutional right to perform such testing after conviction.” (p. 1 & 2)

Stevens in his dissent (joined by Ginsburg and Breyer; Souter filed a concurring opinion) responded to the majority opinion as follows:

The State of Alaska possesses physical evidence that, if tested, will conclusively establish whether respondent William Osborne committed rape and attempted murder. If he did, justice has been served by his conviction and sentence. If not, Osborne has needlessly spent decades behind bars while the true culprit has not been brought to justice. The DNA test Osborne seeks is a simple one, its cost modest, and its results uniquely precise. Yet for reasons the State has been unable or unwilling to articulate, it refuses to allow Osborne to test the evidence at his own expense and to thereby ascertain the truth once and for all. (p. 1)

The liberty protected by the Due Process Clause is not a creation of the Bill of Rights. Indeed, our Nation has long recognized that the liberty safeguarded by the Constitution has far deeper roots. See Declaration of Independence¶2 (holding it self-evident that “all men are. . . endowed by their Creator with certain unalienable Rights,” among which are “Life, Liberty, and the pursuit of Happiness”);see also Meachum v. Fano, 427 U. S. 215, 230 (1976) (STEVENS, J., dissenting). The “most elemental” of the liberties protected by the Due Process Clause is “the interest in being free from physical detention by one’s own government.” Hamdi v. Rumsfeld, 542 U. S. 507, 529 (2004) (plurality opinion); see Foucha v. Louisiana, 504 U. S. 71, 80 (1992) (“Freedom from bodily restraint has always been at the core of the liberty protected by the Due Process Clause”).

Although a valid criminal conviction justifies punitive detention, it does not entirely eliminate the liberty interests of convicted persons. For while a prisoner’s “rights may be diminished by the needs and exigencies of the institutional environment[,] . . . [t]here is no iron curtain drawn between the Constitution and the prisons of this country.” Wolff v. McDonnell, 418 U. S. 539, 555–556 (1974); Shaw v. Murphy, 532 U. S. 223, 228–229 (2001) (“[I]ncarceration does not divest prisoners of all constitutional protections”). Our cases have recognized protected interests in a variety of post conviction contexts, extending substantive constitutional protections to state prisoners on the premise that the Due Process Clause of the Fourteenth Amendment requires States to respect certain fundamental liberties in the post conviction context. See, e.g., Thornburgh v. Abbott, 490 U. S. 401, 407 (p. 7 & 8)

Wow, if I didn’t know any better, I would think Stevens was of a libertarian or Lockean ideology because I think he is spot on in this case. There are times whenever “judicial activism” is necessary whenever state legislatures fail to uphold due process and other Constitutional protections.

Stevens continues:

The fact that nearly all the States have now recognized some post conviction right to DNA evidence makes it more, not less, appropriate to recognize a limited federal right to such evidence in cases where litigants are unfairly barred from obtaining relief in state court. (p. 9)

Throughout the course of state and federal litigation, the State has failed to provide any concrete reason for denying Osborne the DNA testing he seeks, and none is apparent. Because Osborne has offered to pay for the tests, cost is not a factor. And as the State now concedes, there is no reason to doubt that such testing would provide conclusive confirmation of Osborne’s guilt or revelation of his innocence.7 In the courts below, the State refused to provide an explanation for its refusal to permit testing of the evidence, see Brief for Respondent 33, and in this Court, its explanation has been, at best, unclear. Insofar as the State has articulated any reason at all, it appears to be a generalized interest in protecting the finality of the judgment of conviction from any possible future attacks. See Brief for Petitioners 18, 50.8 (p. 11)

In other words, if the state properly convicted the right person, what is the state so afraid of?

It seems to me obvious that if a wrongly convicted person were to produce proof of his actual innocence, no state interest would be sufficient to justify his continued punitive detention. If such proof can be readily obtained without imposing a significant burden on the State, a refusal to provide access to such evidence is wholly unjustified. (p. 13)

It’s really is too bad that Stevens’ opinion did not carry the day. It’s also too bad that Osborne was the test case for this very important issue (Osborne is not what most might consider a sympathetic person; even if he was proven innocent of these charges, he faces other charges unrelated to this case). It doesn’t seem right that the Supreme Court would allow the state to withhold exculpatory evidence which would lead to the truth. Isn’t getting to the truth the point of our criminal justice system?

“I’m sorry for the loss of their family pets,” Jackson said. “But this is the unfortunate result of the scourge of drugs in our community. Lost in this whole incident was the criminal element. . . . In the sense that we kept these drugs from reaching our streets, this operation was a success.”

What criminal element? The mayor? His wife? His elderly mother-in-law? The two labrador retrievers they shot?

Did they suspect Calvo was a drug-runner? Obviously not, because they ALREADY knew the drugs were intended (from an on-going investigation) for a false drop.

If there’s a criminal element, don’t you think it might be the guys, dressed in black, who busted down the door of a law-abiding citizen, terrorized his family, and shot his dogs? All without even a cursory investigation to see if they’d done anything wrong other than having their own address on a package that even the cops weren’t sure was intended for them?

This isn’t the result of the scourge of drugs or the criminal element. This is the result of shoddy police work. This Sheriff should be ashamed of his wanton disregard for logic and humanity.

While I’m not happy that Mr. Lynch is doing time for legally dispensing marijuana under California’s compassionate use law, he certainly could have received a much harsher sentence (up to 100 years). U.S. District Judge George Wu should be commended for finding an exception to the 5 year mandatory minimum sentence and reducing it to a relatively reasonable sentence of 1 year. That’s probably the best he could do under the circumstances.

There is however, one person who can correct this injustice perpetrated by the Bush Justice Department: President Obama. I urge all those who support the Tenth Amendment to join me in calling on President Obama to pardon Charles Lynch. Federalism is a much larger principle in this case than medical marijuana or even the war on (some) drugs. The State of California (whether one agrees or not with using marijuana for medicinal purposes), passed a law the federal government did not like. This law does not violate the U.S. Constitution and is, therefore, beyond the reach of the federal government according to the Tenth Amendment.*

Furthermore, President Obama and his Attorney General Holder have both said on several occasions that the federal raids on these dispensaries would end provided the operators are not violating both state and federal law. A full pardon of Charles Lynch would go a long way toward reversing a bad policy from the previous administration.

*At least that’s my lay reading of it.

One quote from the article stood out and seems to support what I wrote about her in a post I wrote last week:

“[Sotomayor] certainly doesn’t seem to have a pro-criminal bias and, if anything, because of her history, may have a pro-state bias.” – Law Professor and Sentencing Expert Doug Berman

I take exception to the “pro-criminal” part of the quote because in our system (at least in theory), individuals are innocent until proven guilty. Beyond this, I am troubled that a nominee for the Supreme Court would show a detectable bias toward either toward the prosecution or the defense. The only bias a judge should have should be toward the Constitution (the Bill of Rights in-particular).

This is one bias Judge Sotomayor appears not to have.

During oral arguments, the government’s attorney revealed that campaign finance law as currently written could be interpreted to restrict not only documentaries such as “Hillary” but any other political speech “broadcast” during a campaign. A banned “broadcast” could include a store advertising the sale of candidate dolls, toys, or action figures. Even if the advertisement makes no direct endorsements nor advocates the defeat of a candidate, the mere mention of a candidate’s name or likeness would violate current election law.

But surely books would be safe…right?

Not if the book is “broadcast” on a device such as a Kindle, says the government’s attorney. While the FEC believes “dead tree editions” are currently safe from FEC regulation, former Chief of Staff and Council of the FEC Allison Hayward, says that such regulations could be imposed if congress brought such an interpretation into the law.

In the very beginning of the video below, Steve Simpson, Senior Attorney for the Institute for Justice says something which bears repeating here because he captures exactly the First Amendment problems found in current campaign finance law:

“The problem is not too much money in politics; the problem is too much power in government. Government regulates everything and of course, people want to affect the course of the government. So the campaign finance reformers ultimately what they want to prevent is that. It’s the ability to affect the course of our government; it’s the ability to affect which way people vote. That’s the dirty little secret of campaign finance law. They don’t just want to control money, they want to control speech.”

I would like to believe that free speech will ultimately prevail in Citizens United v. Federal Elections Commission, but given SCOTUS’s history, ruling on the side of the Constitution is by no means sure thing. I also can’t help but wonder how an Obama appointed Justice would rule if this case was before him or her. Which side would receive the most “empathy,” the federal government or a private organization or individual citizen? We already know that such a judge would not be considering “abstract legal theories” such as entailed in the First Amendment.

“I don’t agree with the belief that we should use any means necessary to extract information,” said SBC Ethics and Religious Liberty Commission president Richard Land. “I believe there are absolutes. There are things we must never do under any circumstances.”

Furthermore, they clearly indicated that waterboarding is indeed an act of torture:

“For me the ultimate test is: Could I, in good conscience, do whatever I am authorizing or condoning others to do? If not, then I must oppose the action. If I could not waterboard someone—and I couldn’t—then I must oppose its practice.”

Land said he considers waterboarding to be torture because the definition of torture includes the determination of whether a procedure causes permanent physical harm, noting he is unable to “separate physical from psychological harm” in this instance. The practice contravenes an individual’s personhood and their humanity, he said.

“It violates everything we believe in as a country,” Land said, reflecting on the words in the Declaration of Independence: that “all men are created equal” and that “they are endowed by their Creator with certain unalienable Rights.”

“There are some things you should never do to another human being, no matter how horrific the things they have done. If you do so, you demean yourself to their level,” he said.

“Civilized countries should err on the side of caution. It does cost us something to play by different rules than our enemies, but it would cost us far more if we played by their rules,” Land concluded.

To begin, I’d like to applaud the Southern Baptist Convention for taking this stand.  Based on my anecdotal observations, this won’t be popular with the let’s-waterboard-them-another-hundred-times crowd.  However, some of their members may now think through the issue or gain the courage to publicly oppose acts of torture.

While this condemnation is clearly many days late, it’s not a dollar short.  Perhaps it’s time to welcome the Southern Baptists into the fold of people who like to have rational and reasonable debate over issues of a political nature.  Or perhaps not.