Tag Archives: government

The Arrogance of Government

Posted on by
2

Here is an example of why we have a Constitution that explicitly limits the power of the Federal government and within that Constitution a Bill of Rights that both explains those limits and explicitly reserves the infinity of remaining rights and powers to the people and to the states.

This example, though, is by one of those state governments, the government of Maryland which also says it’s legal for approved gangs to commit trespass and terrorize children inside their own homes.  State Senate President Thomas V. Mike Miller (D, Dist 27) said this in all seriousness:

We’ve allowed them to manufacture.  We’ve allowed them to sell, and we’ve cut back on their paperwork.

Notice that: government has allowed.  Because government will make these decisions, because what a manufacturer—or anyone—can do is only what a government will permit.

Never mind that the Maryland Constitution says this in Article I of its Declaration of Rights:

That all Government of right originates from the People, is founded in compact only, and instituted solely for the good of the whole….

In other words, government works for the people, and what government can do is what the people will permit, not the other way around.

Oh, wait, this is just Progressives disregarding yet another Constitution that’s more than 100 years old, confusing, and not binding on anything.

Another Victory over Big Government

Posted on by
Reply

Here’s the long and the short of it, as summarized in The Wall Street Journal:

A federal judge this week struck down a controversial set of laws allowing the Federal Bureau of Investigation to seek people’s records without a court’s approval, saying the strict secrecy orders demanded by the laws are not constitutional.

US District Judge Susan Illston (Northern District of California) ordered the government to stop sending national security letters or to stop trying to enforce gag orders related to them, but she stayed her order pending the government’s appeal.

Of course, it’ll go to the 9th Circuit, which means it will go on to the Supreme Court, so the fight isn’t over.  But this is an excellent start.

Illston’s opinion decried these violations of Americans’ individual freedom:

[The] pervasive use of nondisclosure orders…creates too large a danger that speech is being unnecessarily restricted.

She added [emphasis added]:

[T]he statute impermissibly attempts to circumscribe a court’s ability to review the necessity of nondisclosure orders.  …the NSL nondisclosure provisions significantly infringe on speech regarding controversial government powers.  …  As written, the statute expressly limits a court’s powers to modify or set aside a nondisclosure order to [certain] situations….  The statute’s intent…is incompatible with the court’s duty to searchingly test restrictions on speech.

There are two problems with these letters.  One is that they allow searches without a court’s warrant.  The FBI can use them to search for phone data and for financial and electronic records, and all the FBI agent needs is his Field Office Special Agent in Charge to say it’s all jake.  This is a clear violation of our 4th Amendment.

The other problem worsens this exponentially: the FBI can require (or could before Illston’s ruling) the recipient of the letter to keep quiet about his receipt—denying the owner of the records any opportunity to respond to the search before it happens.  This also denies two critical aspects of the 1st Amendment: that right to speak of receipt and the duty of a court to adjudicate any allegation of a 1st Amendment violation.

Illston’s ruling can be read here.

War, Politics, and Power

Posted on by
Reply

Karl von Clausewitz noted that war is an extension of politics.  President Barack Obama, with his reliance on drones and seeming decision utterly to eschew capture (with its attendant intelligence value), is making simple killing an extension of politics.

What is the impact on political power of this evolution?

After Attorney General Eric Holder’s evasive testimony before the Senate Judiciary Committee about drone use, Senator Rand Paul (R, KY) filibustered John Brennan’s confirmation as Director CIA, and this finally convinced Obama to have Holder write a letter to Paul, which says in its entirety:

It has come to my attention that you have now asked an additional question: ‘Does the President have the authority to use a weaponized drone to kill an American not engaged in combat on American soil?’  The answer to that question is no.

But what does it mean to be “engaged in combat?” It means whatever the President needs it to mean.

As Richard Fernandez noted in an aptly titled post [emphasis added],

Lawyers have rarely been able to contain power.  As practical matter power is constrained only by politics, which as Clausewitz once observed can be another name for another thing….

He went on:

Power is limited by the degree to which an executive authority can enforce obedience.  It is constrained by the extent to which authority can expect an order to be followed.  It is bounded by the fear of political repercussions; by the dread of losing office and ultimately, by the apprehension that having lost office a person might face jail.

Obama has assured us through his pressman, Jay Carney, that neither he nor his Justice Department would never abuse such power.  And Obama is an honorable man; So are they all, all honorable men.

But with an expansive and expanding government, and Obama’s apparent extension of the tools of politics, our hold on government is growing tenuous.  We cannot allow this to continue.  As a man once said, elections have consequences.  We’re seeing some of those consequences.  It’s time to have different election outcomes.

Police Surveillance

Posted on by
Reply

Little Rock, AR, is expanding the surveillance capability and power of its police patrols:

A police car with a device that photographs license plates moves through the city and scans the traffic on the streets, relaying the data it collects to a computer for sifting. Police say the surveillance helps identify stolen cars and drivers with outstanding arrest warrants.

It also allows authorities to monitor where average citizens might be at any particular time. That bothers some residents, as well as groups that oppose public intrusions into individual privacy. The groups are becoming more alarmed about license plate tracking as a growing number of police departments acquire the technology.

More (worse?) [emphasis added]:

Little Rock Police Chief Stuart Thomas said the law enforcement benefits outweigh any concerns about possible abuse of the information, which, as a public record, is legally available for anyone to see.  He said the department may get more of the devices.

No irony there at all.  Nosirree.  Thomas went on:

Should that potential of misuse therefore eliminate the capacity of law enforcement to collect data which has a legitimate purpose for the safety of our officers or the appropriateness of enforcement actions?  I don’t think so[.]

But he misses the point.  This isn’t a private citizen, for whom prior restraint constraints are properly illegal—there has to be a crime committed (of which conspiracy is one, but which requires probable cause to interrupt).  This is a government, which is hard enough to control.  Prior restraint of government is a necessary precondition for freedom.  It’s why probable cause and warrants are a for restraining governments.

There are other dangers of the police—the government—creating this particular database, also pointed out in the article.

[City Director Ken] Richardson said he didn’t hear about the device until after it had been collecting data for months.  He said he said he hasn’t heard many complaints.

“It’s hard for you to have a problem with something if you don’t know it’s going on,” he said.

So, Chief, why all the secrecy, if it’s so innocuous?

And as [Catherine, of the New York American Civil Liberties Union] Crump points out,

Given how few rules are currently on the books to protect our privacy, it’s plausible that private investigators and data-mining companies could acquire this location data[.]

And nefarious individuals posing as those.  This is a neat-sounding idea that’s highly dangerous.

Score One for the Other Part of the 1st Amendment

Posted on by
Reply

The Wall Street Journal’s Law Blog describes a victory for religious freedom.  In a case about which I first wrote just after its inception, a gang known as Freedom From Religion Foundation sued the village of Warren, MI, for having the temerity to put up a Christmas display without permitting FFRF to put up a sign next to it announcing that religion is “myth and superstition that hardens hearts and enslaves minds.”

First, Mayor James Fouts told them to take a hike, followed by their suit:

If you requested permission to put up a sandwich board saying that there is no Santa Claus, you would be met with the same response.  Santa Claus lives in the minds and hearts of many millions of children.  The belief of God and religion lives in the hearts and minds of hundreds of millions of people and is as much a part of the fabric of America, as the belief in democracy and freedom….

Your non-religion is not a recognized religion.  Please don’t hide behind the cloak of non-religion as an excuse to abuse other recognized religions.

Then a Michigan district court told these folks to take a hike.

Then the 6th Circuit told this…crowd…to take a hike.  On the matter of Warren’s alleged favoring of the religious over the secular, they had this:

That is not true even on its own terms.  All but one of the objects in the holiday display are nonreligious.  Ribbons, ornaments, reindeer, a lighted tree, wreaths, snowmen, a mailbox for Santa, elves, wrapped gift boxes, nutcrackers, poinsettias, candy canes, a “Winter Welcome” sign—all of them, all that is but the nativity scene—are secular…

A city does not run afoul of the Establishment Clause by including a creche in a holiday display that contains secular and religious symbols.

On the matter of the “Winter Welcome” greeting in particular, the 6th expanded with this [emphasis added]:

When one neighbor greets another in mid-December with “Happy Holidays,” it is the rare person who hears “Happy Holy Days.”  What was once the most religious of invocations has become one of the most faith-neutral, even secular.  One indeed can fairly wonder who has co-opted whom over time with these displays and words.  But that is a matter for another day.

On the gang’s bellyache that Fouts’ letter was itself some sort of cynical violation, the 6th had this:

These are not the words of someone trying to establish any one religion or religion in general; they are the words of someone trying to explain the common sense risks of disparaging faith-based and secular symbols, whether a creche or a Santa, alike….

It may be true that the Mayor misapprehended the Religion Clauses when he implied that atheists receive no protection from them by saying that the Foundation’s “non-religion” was “not a recognized religion.”  In this respect, the Mayor, apparently untrained as a lawyer, may not have missed his calling….  But this defense of his actions, premised on a misreading of precedent, does not transform his actions or the City’s display into an establishment.

On the gang’s crying about their free speech rights, here’s the 6th, again:

[Warren] could choose to add a Santa.  And it could choose to deny a sign saying, “There is no Santa.”  It could choose to incorporate a message about Ramadan.  And it could choose to deny a message disparaging any one religion or religion in general.  Just as Congress’s creation of a National Day of Prayer on the first Thursday of May does not compel the legislature to recognize a National Day of Non-Prayer each year, so too the City of Warren could opt to have a holiday display without a Winter Solstice sign.  Such holiday displays are quintessentially government speech….

And the Foundation, like everyone else, is free to urge the City to add or remove symbols from the display each year or to try to elect new officials to run the City—the customary answer to permissible government speech and the customary answer to policies with which citizens disagree.

FFRF Co-President Annie Laurie Gaylor responded to her loss without any sense of irony:

Apparently we are a Christian nation, and cities may prefer religion over non-religion[.]

On the first, well, duh.  On the second, she needs to ask her lawyer to read the 6th‘s opinion to her.  It’s not what they said.  Her lawyer can find that opinion can be found here.

Thus we see the benefit of not taking the easy way out—the coward’s way out—and acceding to the demands of such anti-freedom fighters as these as soon as the latter threaten.

These lose—as all bullies lose—when faced with forthright and just opposition.

Facing down bullies is expensive, certainly.  However that expense pales beside the expense of meekly surrendering freedoms for the demanding.  Once you pay the Danegelt, you never get rid of the Dane.