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Defense of Marriage Act Partially Struck Down

Jul 13

Posted by R. Stanton Scott in ConLaw, Culture Wars, Gay Marriage, Homosexuality, Marriage

Last week a Federal Judge ruled that Congress has no power to create a separate class of married couples for the purpose of regulating receipt of Federal employment benefits, and ruled Section  3 of the Defense of Marriage Act unconstitutional.  In two separate cases hinging on two different issues, the Court ruled both that Congress may not create two classes of marriage for the purposes of eligibility for Federal employment benefits because such an Act violates the Equal Protection Clause of the Fifth Amendment, and that the Tenth Amendment prohibits Federal regulation of State power to define lawful marriage.

Gill v. Office of Personnel Management:

In the wake of DOMA, it is only sexual orientation that differentiates a married couple
entitled to federal marriage-based benefits from one not so entitled. And this court can conceive
of no way in which such a difference might be relevant to the provision of the benefits at issue.
By premising eligibility for these benefits on marital status in the first instance, the federal
government signals to this court that the relevant distinction to be drawn is between married
individuals and unmarried individuals. To further divide the class of married individuals into those
with spouses of the same sex and those with spouses of the opposite sex is to create a distinction
without meaning. And where, as here, “there is no reason to believe that the disadvantaged class
is different, in relevant respects” from a similarly situated class, this court may conclude that it is
only irrational prejudice that motivates the challenged classification.149 As irrational prejudice
plainly never constitutes a legitimate government interest, this court must hold that Section 3 of
DOMA as applied to Plaintiffs violates the equal protection principles embodied in the Fifth
Amendment to the United States Constitution. (Emphasis mine.)

Here the Judge rightly concluded that same-sex marriage has no effect on heterosexual marriage, and therefore the Government has no rational basis for classifying marriage other than the historical method: reliance on the states for definition.

Massachusetts v. Health and Human Services:

This court has determined that it is clearly within the authority of the Commonwealth
to recognize same-sex marriages among its residents, and to afford those individuals in same-sex
marriages any benefits, rights, and privileges to which they are entitled by virtue of their marital
status. The federal government, by enacting and enforcing DOMA, plainly encroaches upon the
firmly entrenched province of the state, and, in doing so, offends the Tenth Amendment. For that
reason, the statute is invalid.

Massachusetts sued to force the Federal Government to recognize the same-sex married couples married in that state for purposes of Medicare, Medicaid, and spousal burial by the Veteran’s Administration.  Since the Constitution gives Congress no power to regulate marriage, and the Federal Government has historically accepted the definitions of marriage constructed by states (including during the age of anti-miscegenation laws), the court found Section 3 of DOMA in violation of the Tenth Amendment.

Jack Balkin (Balkinization) and Dale Carpenter (The Volokh Conspiracy) analyze the decisions much more effectively than I ever could.  But it raises questions about Congressional power that may confound some conservatives.

Congress either has the power to define marriage in this way, or it doesn’t.  Since the Constitution says nothing on the subject, such a power if it exists must rest in broader interpretation of the Commerce Clause or some other general power.  This could force conservatives into competing talking points, as they simultaneously argue that Congress has no power to regulate health care by mandating coverage, but may regulate marriage by defining it for the States.

Last night I heard Maggie Gallagher on the local Christian radio station complaining that the Obama Justice Department intentionally made a weak argument in defense of the law, forcing the judge to rule as he did because DOJ did not use the arguments Congress used to support original passage of the law (Professor Carpenter covers this).  She further suggested that the Obama Administration might refuse to appeal the decision, letting it stand, and called on traditionalists to agitate against the judge, the decision, the Obama Justice Department, and gay marriage.

Ms. Gallagher should certainly argue for her preferred policy choices.  But her rhetoric supports the judges observation that her opposition to marriage for homosexuals has more to do with “irrational prejudice” than with protecting Christian traditions–which they are of course free to continue, however this turns out.

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McDonald v. Chicago

Jun 30

Posted by R. Stanton Scott in ConLaw, Gun Rights, Norms, Norms and Social Construction, Second Amendment

At the Founding, the Second Amendment was a Federalism issue.  Madison and the other Federalists wanted to create a powerful central government after their experience with the Articles of Confederation.  But the new Constitution included troublesome language, some of which appeared to put the Federal Government in charge of the state militias by giving Congress the power to “organize and discipline” them, and to “govern” them when federalized.  State officials worried that Congress might use these powers to disarm their militias.  This particularly concerned Southern legislatures who relied on state militias for managing the slave population.

To secure the necessary votes for ratification in the State legislatures, the Founders protected the power of “the people” to “keep and bear arms.”  Ratifying officials almost certainly thought of this clause as protecting State power to arm a militia, since it was State legislatures, not voting citizens, they intended to placate.

If the original meaning of the Constitution is to protect this State power, then incorporating it against State governments makes no sense.  State governments by definition govern the Militia, and this would by definition include the power to disband them if necessary.

Given the introductory clause “A well-regulated militia,” the Second Amendment must be interpreted as either protecting the power of States to form militias (meaning a collective right) or the power of individuals to form ad hoc militias (meaning an individual right).  Many gun “rights” advocates support the latter view, and the Founders would certainly have intended to protect individual citizens against confiscation of firearms (though not necessarily their regulation) to protect their right to form militias.  In this event, the ruling gets it exactly right: States should have no more power to regulate gun ownership, and therefore private militia formation, than the Federal Government.  Given the current state of Constitutional jurisprudence, then, I think this was the correct conclusion under the law, though I think Thomas was on the most solid ground by using the Privileges and Immunity Clause instead of the 14th Amendment (for more on this see Scott Lemieux at LGM and Jonathan Turley at his blog).

This has interesting implications.  Note for example that if the Constitution protects the rights of citizen groups to form ad hoc militias for their own purposes, then the Klan arguably acted legally by forming armed groups to enforce Jim Crow laws and local customs.  Gun “rights” advocates, after all, argue for the “right” to intervene militarily against their elected government should they disagree with government policy.

In any event, McDonald has implications for an argument I made here at FBL back in January: that “a shift in normative paradigms about the social order (e.g, about the appropriateness of violence in society, or killing to protect property) could threaten the existence of a “right to keep and bear arms” as a shared understanding.”

Americans appear to be fairly evenly divided on the regulation of gun ownership, with little support for looser gun control laws.  Indeed, it seems like most Americans probably don’t think about gun rights or gun control laws very much, except when some event in the news brings it to their attention.  Note for example that the Columbine tragedy correlates with a very sharp increase in support for gun control laws, which returned to previous levels over time.

These polls require a grain of salt, since they are national polls, and some results suggest that views vary quite a bit from region to region, with support for regulating firearm ownership particularly high in big cities.  We can expect local populations and jurisdictions to have sharply divergent preferences with respect to the type and scale of gun regulation.  So I see two problems for gun “rights” advocates in this ruling.

First, it violates the Constitutional principle of Federalism and local control by further federalizing normative institutional structures with respect to the “rights” and privileges of citizenship.  Conservatives (especially Southerners) complain about this when the Court incorporates national standards for civil rights, religious expression, and the regulation of sex and marriage.  It is at least amusing to see a Conservative Court take a Warren Court approach to incorporation of a “right” conservatives consider crucial to liberty, and begs the question of whether this Court and other Conservatives would support incorporation of abortion rights against the states using similar arguments.  It also represents a paradigmatic shift to the right with respect to firearm regulation by forcing a libertarian view of gun “rights” on more liberal jurisdictions, and this can be expected to energize potential gun control advocates.

More importantly for my discussion of changing social norms and the protection of gun “rights,” this ruling should lead to nullification of the law challenged in the suit, as well as many others, as unconstitutional.  These laws exist because citizens demanded them, whether or not they work, and we can expect cities and states to work on formulating regulatory schemes which pass Constitutional muster.  Since the Court has said that limits on the right to keep and bear arms do exist, we can expect further regulation of firearms in many places even after incorporation.

This process will reopen a gun “rights” debate which Second Amendment proponents had largely won, and awaken previously quiet constituencies to this policy debate.  This is especially so if it leads to formation of ad hoc militia groups under looser gun control laws.  Where gun ownership becomes more pervasive and public, Americans who have little exposure to them and want them regulated could suddenly join a discussion they have previously ignored because it made little difference to them.  Figuring out how many Americans understand weapons, own them, and care about gun “rights” is problematic.  But it makes sense to think that gun advocates are more energized on the issue, and they should take care to avoid bringing gun control onto the policy agenda unnecessarily.

Eighty-two percent of Americans think gun control laws should stay the same or be made stricter.  This is a large constituency to arouse from slumber, and drastic changes, especially in large cities, could cause a backlash against gun ownership and gun “rights.”  For NRA members and gun “rights” advocates, this is already a salient voting issue–”I’m the NRA and I vote” is not a popular bumper sticker because of the cool logo.  Making gun control a salient issue for this 82% could backfire, and if looser gun control laws appear to cause in increase in crime, or simply expose Americans who don’t like guns and don’t want to be around them to people carrying weapons around all the time, it could become a salient issue for them, as well.

This is how laws–and norms–change.

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The Constitutionality of Health Care Mandates

Feb 13

Posted by R. Stanton Scott in ConLaw, Health Care

The Virginia House of Delegates passed House Bill 10–The Virginia Health Care Freedom Act–by a 72-26 vote yesterday.  This Act in part prohibits imposition of “a penalty, tax, fee, or fine, of any type” on Virginians who do not wish to contract for health care coverage or to participate in a particular health care system.  It is not clear that this law actually protects anyone from a federal mandate to purchase health insurance, which is the intent of the bill.  Imagine, for example, that the Assembly passed a law prohibiting imposition of a penalty on Virginians for possession of marijuana and you see the problem: a Federal ban or requirement probably trumps state law.

In any event, our Legislature as a body apparently believes in the questionable constitutionality of a federal mandate to purchase a good or service.  Indeed, this morning on the radio I heard a proponent of the bill make just this assertion: that the Federal Government has no authority to issue such a mandate.  He went on to say that the Federal Government has never required Americans to purchase a good or service under penalty of law.

Not exactly.  The Militia Act of 1792 states in part:

“That every citizen, so enrolled and notified, shall, within six months thereafter, provide himself with a good musket or firelock, a sufficient bayonet and belt, two spare flints, and a knapsack, a pouch, with a box therein, to contain not less than twenty four cartridges, suited to the bore of his musket or firelock, each cartridge to contain a proper quantity of powder and ball; or with a good rifle, knapsack, shot-pouch, and powder-horn, twenty balls suited to the bore of his rifle, and a quarter of a pound of powder; and shall appear so armed, accoutred and provided, when called out to exercise or into service, except, that when called out on company days to exercise only, he may appear without a knapsack.”

With this Act, Congress required militia members to purchase (or otherwise procure) the equipment necessary for military service.  To be sure, the delegated power to “provide for organizing, arming, and disciplining the Militia” arguably gives Congress Constitutional authority for this mandate, where no such delegated power exists for a health insurance mandate.  But it is not accurate to say that Congress has never required purchase by individuals of a good it thinks they should have.

The constitutionality of mandating the individual purchase of health insurance seems pretty straightforward as a matter of regulating interstate commerce, especially if Congress permits purchase of insurance across state lines.  Precedent for requiring citizen activity that apparently violates individual freedom to manage personal resources exists in some labor law applied to striking workers, and particularly in sanctions against draft-eligible citizens who refuse to register, or report if called.  If Congress can force purchase of firearms and equipment by militia members (a status that accrued to residence in the US), force health care workers to report for duty, and draft citizens for military service even in peace time, then a power to mandate individual purchase of health care coverage seems within its powers.

Further, government power to limit the potential for the spread of disease by quarantine or requiring treatment could apply to this discussion.  As a public health matter, ensuring widespread access and use of health care services appears to fall pretty clearly in the broad power to secure the “general welfare.”

The Virginia House of Delegates sent the message: that body opposes health care reform in the name of the citizens of the Commonwealth.  What’s not clear is why they think they can bind the Federal Government as they do so.

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More Second Amendment Blogging

Jan 24

Posted by R. Stanton Scott in ConLaw, Culture Wars, Guns and Ammunition, Second Amendment

Though fairly well-read in constitutional law, history, and political science, I am no expert on the gun rights v. gun control debate.  But since I do have a policy preference with respect to guns, and I intend to involve myself in discussions with people on both sides of this discussion as a way to promote my preferred policy, perhaps I should lay out my thinking on the subject. Read the rest of this entry »

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Be Careful What you Ask For…

Jan 22

Posted by R. Stanton Scott in Campaign Finance, ConLaw, Corporations, Freedom of Speech, Globalization, US Politics

I was disappointed to hear on the radio yesterday that the Supreme Court had ruled in Citizens United v. Federal Election Commission that Congress cannot limit “electioneering communications” by corporations and unions.  On its face, this seems logical on free speech grounds: “no law abridging the freedom of speech” seems pretty clear, and the campaign finance laws struck down by the Court did limit speech.

Still, this ruling troubles me on a couple of grounds.  First, I more or less agree with the sentiment that “If money is speech, then speech is not free,” so the equation of speech with money makes me uncomfortable.  Treating the spending of money on purchasing message ads as free speech which cannot be regulated gives an amplified voice to the wealthy.  Large, very profitable corporations will now have a much louder voice than individual citizens, and that’s bad enough.

But some conservatives may have reached a “be careful what you ask for” moment, since they will also have the resources to drown out others in the commercial sector, and this ruling will probably have quite a large distorting effect on markets.  Wal Mart, for example, will now have much more freedom to work for the defeat of local politicians wishing to protect local business culture and flavor against the homogenization of retail in a region.  This new freedom for corporations will probably mean the end of small businesses who share this new freedom, but not the resources to exercise it.

Of course, since the assertion of rights depends on access to court systems, and we manage this access itself as a market, all of our rights claims have always been subject to possession of the necessary financial wherewithal. Wealthy people, whether acting in groups or individually, have far more power to make justice claims than the poor.  This fact, by the way, helps to show that we hold our “rights” only with respect to social relations–they have no intrinsic value separate from our interactions with others, including financial ones.  If they did, we would not organize our adjudication of justice claims around market transactions.

Perhaps more problematic is the deeper placement of corporations in social relationships as the equivalent of citizens.  We treat these collectives in law and rights discussions as individuals, and this begs the question: How long until discourse creates an understanding of corporations as possessing rights besides free speech?  Should corporations have the right to vote?  If the First Amendment protects their speech, does the Second protect their right to keep and bear arms?

The ruling leaves other questions equally unclear.  How, for example, do we define the citizenship of a multinational corporation?  Since our current understanding of “inalienable rights” makes them in fact quite “alienable”–that is, our Constitution does not protect the “natural” rights of non-citizens–this question will come up, and soon.

This may shake out in the “free market of ideas” way libertarians and other conservatives expect.  But many may find that giving corporations the same free speech rights as individual citizens will have unintended consequences they regret, even if it gets more conservative politicians elected.  Be careful what you ask for–you might get it.

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Professional Moral Depravity

Apr 18

Posted by R. Stanton Scott in ConLaw, Conservative Police State, Torture

This is exactly right:

If you want to know how democracies die, read these memos. Read how gifted professionals in the CIA were able to convince experienced doctors that what they were doing was ethical and legal. Read how American psychologists were able to find justifications for the imposition of psychological torture, and were able to analyze its effects without ever stopping and asking: what on earth are we doing?

On Thursday, the Department of Justice released four secret torture memos generated by Bush Administration legal officials in answer to questions about the legality of using interrogation techniques designed to stress, humiliate, terrorize, and inflict pain on detainees who CIA and other officials said may have information about terrorist attacks or plans. It appears that American professionals trained in the law were no less susceptible to moral depravity than those trained in medicine.

Like Mr. Sullivan, I think it is important to be clear just what happened here: American officers, professionals in our military and intelligence services, held as prisoners without due process or legal protection human beings (who, we claim, possess inalienable rights endowed by our creator) on the simple unproven belief by fellow officers that these people had information.  To force this information from them, these officers kept them in solitary confinement, refused them food and water, and inflicted sadistic treatment on them.  This treatment included striking them, water boarding them, placing them in small spaces to cause muscle pain, and sleep deprivation, among other things.  None of these professionals stopped to wonder at the moral or ethical implications of treating other human beings in this fashion–at least not enough to stop doing so.  They were instead concerned only with covering their legal asses.

Any human being that can bring him or herself to this level of sadism has no claim to morality of any kind.  That many if not all of the people who found themselves capable of doing so call themselves Christians says all you need to know about the current state of the worship of God and his role in the lives of Christians in America.  From here out we can cut the “no morality without religion bullshit.”

Jay Bybee (now a federal judge) and Steven Bradbury, the authors of these memos, show a shocking level of professionalized moral depravity.  That these legal experts found a way to normalize and professionalize such sick, twisted, sadistic treatment of one human being by another makes clear that American leadership, at least under George Bush and Dick Cheney, wallowed as deeply in the mud of fear and loathing of others as the most provincial of uneducated fools in the darkest backwater of American society.

We haven’t come so far as I had thought.  Our ancestors were capable of murdering indigenous Americans just because the occupied land wanted by the colonists (John Wayne says it clearly: “I don’t feel we did wrong in taking this great country away from them. There were great numbers of people who needed new land, and the Indians were selfishly trying to keep it for themselves.”).  The American elite class held as slaves human beings, and even managed to enshrine the institution in our founding documents.  Today we continue in a long American tradition of destroying our own souls out of greed and fear.

As they say, read the whole thing.

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Wingnuts, the Constitution, and DC Voting Rights

Apr 6

Posted by R. Stanton Scott in ConLaw, Government, Wingnuts, Wingnuttia

As a general matter, I do not support the legislation currently before Congress that would grant the District of Columbia a voting representative in the House.  I oppose it not because I think DC residents should have no representation, or because I think such a law violates the Constitution.  I oppose it because it would also create another House seat in Utah, a state already undemocratically overrepresented by its two Senators.  This reminds me all too much of the sort of compromises struck before the Civil War that created new States two at a time–one free and one slave.  House representation for the District is either right or it isn’t, and should be passed on the merits, without a compromise intended to match a presumably liberal seat with a presumably conservative one. 

But Ed Whelan’s little screed in yesterday’s Washington Post (h/t DougJ at Balloon Juice) forces me to reevaluate.  If, after all, a “constitutional scholar” like Ed Whelan thinks the law is unconstitutional, there is probably a strong argument that it is not.

As of course, there is: the Constitutional provision giving Congress “exclusive legislation in all cases whatsoever” over the District, as well as other places purchased at the consent of state legislatures.  Whelan argues that the Constitutional qualification for membership in the House, which requires members inhabit the state in which chosen at the time of election, precludes House membership for DC residents, since the District is not a State.  This question has no clear answer, as even Kenneth Starr would agree.

But Whelan’s goal here seems to be less an argument against the constitutionality of this legislation than to take a shot at Eric Holder, a DC voting rights supporter who sought an opinion from the Solicitor General on whether he could defend the law in court, if it passed.  Because the Office of Legal Counsel had issued an opinion saying that giving DC a House member without making the District a State or passing a constitutional amendment would not pass constitutional muster, Whelan calls this politicization of the Department of Justice.

Included in this screed is an attack on Holder’s role in the Marc Rich pardon–as if his role in that affair generally disqualifies him from serving as Attorney General.  This is a classic wingnut attack in two ways: it has nothing to do with the issue at hand, and it fails to apply the same standard to conservatives–like Scooter Libby, who represented Rich for five years, and is arguably respondible for the pardon, or at least more so than Holder.

Whelan gets himself into high breathless dudgeon over the notion that the Attorney General would override the Office of Legal Counsel because it questioned the constitutionality of his preferred policy.  But Holder did no such thing: believing that the law would pass, and then be challenged, he sought an opinion from the Solicitor General about the merits of arguments on the other side.  He would, of course, have to have this information to give his boss good advice about a veto–if he felt the courts would strike it down anyway, he would have to advise President Obama to negotiate a different law or veto this one and send Congress back to work on the issue. 

Holder did not change the OLC’s opinion.  He didn’t even seek another opinion on constitutionality.  He only wanted to know the prospects of defending the law in court–quite a reasonable question.

Whelan is something of a right-wing whiner and crybaby.  He also holds the interesting view that courts attack marriage by…expanding it to new groups.  So we shouldn’t be surprised when he just tosses crap against the wall to see what sticks.  But the pot, who worked in the OLC when it issued torture memos and justified an enormous and unconstitutional hijacking of power by the President he liked, should resist the urge to call the kettle black by accusing Holder of politicizing Justice just because he is doing his job.

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Transnationalism and the Spread of Democracy

Apr 3

Posted by R. Stanton Scott in ConLaw, Globalization, Government, Neoconservative, Supreme Court, Transnational Law

Watching President Obama make the European rounds, including a stop at the G-20 summit in London, reminds us that some level of governance and civil society exists at the global level.  While heads of state meet to discuss international economic policy, including coordination of policy responses to weakening economies across the world, citizens protest militarization, economic inequality, and a banking system that helps to redistribute wealth to developed nations, and once there to wealthy individuals.  While these meetings do not by any stretch constitute deliberative bodies with power to legislate, they do provide discussion and action forums where the leaders who do have to power to shape policy at the domestic level can formulate and plan implementation of public policy in a collaborative fashion. 

Sometimes they even agree to take specific action to regulate or manage sectors of the global economy (paywall), and relinquish some chunks of sovereignty in the process. (h/t Mark Kleiman)  In this case, the group agreed to change current banking secrecy rules and close tax havens.  These are serious concessions on domestic policy by sovereign states that have apparently decided that integration into the global economy is more important than protecting domestic interests.

With things, ideas, money, and to a lesser extent human beings flowing across borders more and more easily, states and private firms look for ways to manage this interdependence by seeking ways to accomodate variations in legal traditions and systems.  Sometimes, governments drive this process by adopting regulatory regimes, such as the Law of the Sea Treaty, that protects sovereignty but establishes the definitions and frameworks that make it possible for the state system to function (this, by the way, suggests that the state system may be less anarchic than many political scientists would have us believe).  Often, private firms seek global regulatory regimes to protect their property rights (See Susan Sell’s Private Power, Public Law).    At any rate, this often manifests itself in horizontal networks that link national officials across borders, which disaggregates the state and takes international policymaking out of the hands of legislators and heads of state (See Anne-Marie Slaughter’s A New World Order).

Global governance and civil society requires a transnational legal regime to manage contracts, criminal activity, and disputes between actors, in and out of government.  Such a regime would of course partially consist of international legal agreements such as the Geneva Conventions and Law of the Sea treaties.  But it would also have to include some process for adjudicating cases between actors from different legal systems.  This in turn suggests a need for some domestic consideration of international legal norms and frameworks, if only because disputes between international actors are still argued in national judiciary systems.

Conservatives reject this view, as we can see from their reaction to the possiblity that President Obama might consider Harold Koh, of Yale, as a potential Supreme Court nominee, and his nomination for the top attorney position in the State Department.  They argue that the US should not relinquish autonomy over US law in favor of that preferred by “Europe’s leftist elites,” whining that transnationalist justices really just want to use foreign legal principles to reach results they like, however contrary to the Constitution they might be.  Mr. Gaffney can be forgiven for worrying himself over this, given that importation of prevailing international norms against torture might subject him to sanction for his role as a supporter of “vigorous interrogation techniques” and the Bush Administration’s anti human-rights regime.  But both are trying to close the barn door after the horse has long since run off: transnational law is not a threat, but a reality.

To support their criticism, they cite a law review article (Why Transnational Law Matters) Mr. Koh wrote for a 2006 issue of the Penn State International Law Review  which focused on changing the first year law school cirriculum to reflect increasing globalization and interdependence of the law.  In the article, Mr. Koh cited some examples of the way legal principles become adopted across systems and jurisdictions.  This works both ways: sometimes international principles become domesticated, and at other times domestic law is internationalized and spreads across systems from a humble beginning. 

This article does leave the reader with the impression that Koh finds some value in some legal ideas that did not originate with Thomas Jefferson and the boys.  But the key point he makes–which he uses to support reform of the law school cirriculum–is that this is already happening, and has more or less been a constant part of the development of legal theory since Man decided to construct legal frameworks to manage human interaction and adjudicate disputes.  Moreover, the agents of transnational legal development include international actors of all shapes and sizes, including private citizens, corporations, non-govermental organizations, ethnic groups, soldiers, financiers, and anyone else who wants to operate or interact across international borders–not just elite Europeans and liberal Supreme Court Justices.  The market helps to drive this process as it expands to include international economic transactions, and confining legal principles to our own understanding of things like contracts and ownership would severely limit the ability of markets to get the most efficient use out of the components of production.  Transnational law is here to stay.

Which means that people like Whelan and Gaffney should stop fretting about how to stop the transnationalization of law and start trying to figure out a way to manage this process so that our system strongly influences the principles governing whatever global legal system develops.  We should welcome Koh’s “transnational legal process” because it offers an opportunity to spread our legal and social system, including property rights, personal freedom, and capitalism, to other parts of the world.  Instead of trying to protect ourselves from the virus of foreign legal thought, we should embrace the process and become the virus ourselves.  It might help us spread democracy without killing so many potential voters.

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“If men were angels…”

Jan 18

Posted by rstanton in ConLaw, Conservative Police State, Fascism, Jonah Goldberg, Wingnuttia

Via Roy Edroso, some rambling thoughts from Jonah Goldberg at The Corner on the Exclusionary Rule.  Mr. Goldberg thinks that we should allow the police to do pretty much anything they want as long as the goal is to protect the innocent.  He would eliminate the exclusionary rule and give the police the discretion to search anyone they like.  Jonah Goldberg believes we should allow state agents to enter your home any time they like, whether they can show you have committed a crime or not–it is enough that a twenty-year-old sheriff’s deputy thinks your kid might be smoking pot.  This may sound right to the simple minded, but deeper thinkers quickly realize that this is a crucial building block for a police state.

Of course, this argument comes from the man who thinks liberals are fascist for wanting to force companies to tell you what they put in the food they sell, but conservatives who want to ban gambling and strip clubs are only trying to preserve traditional American values.

Mr. Goldberg needs to re-read his Madison.  If he does, he will learn that James and the guys wrote the Constitution because they understood that men are not angels (see Federalis 51).  This applies to the police and Jonah Goldberg, who should have no power to determine who possesses the right to protection from intrusive government.  Our founding document, after all, protects everyone from unlawful search of private property by agents of the state–not just those the police (or Jonah Goldberg) consider innocent.

They did this because they tired of the state sending its agents to roust them out of their homes to harass and intimidate.  They did this to reduce the power of the state’s agents, real human beings with real resentments and crazy notions and not angels at all.  Madison and his colleagues wanted fellow citizens to determine innocence, not the police.

Of course, eliminating the exclusionary rule would not mean that the police could simply haul anyone they pleased off to the slammer.  But it nevertheless moves us a step closer to a police state by making arbitrary searches painless for those state agents who have bones to pick or pet theories to chase.  Remember that the exclusionary rule is not limited to urban police looking for drugs and guns in the bad part of town.  It also keeps agents of all types from fishing for embarrasing details about the lives of political opponents or business rivals.  Support for such an expansion of state power is an interesting position for conservatives to take.

I suppose they have to, since making Americans afraid of boogeymen like criminals and terrorists is about all they have left after the catastrophic failure of their economic, military, and foreign policies.  Besides, Jonah Goldberg is a no-talent hack hired by his mother to analyze politics and policy without letting facts get in the way.  That his political philosophy lacks cohesion should surprise no one.

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