U.S. Constitution

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The Right to Remain Recording

Friday, August 15th, 2014

Every once in a while, a judge makes a judgment so sensible, it’s as if he had this Common  Sense column in mind.

U.S. Magistrate Judge Edmund Brennan has determined that the same right to video-record police in public also applies within a would-be videographer’s home.

The case involves a 2011 search of the home of Mary Crago, which was subject to search without warrant under the terms of her probation. Defendant Kenneth Leonard deleted a video recording she made of the search, telling her that recording it was prohibited. In court Leonard has contended that no right to video-record police officers has been established for persons on probation or in a non-public setting.

To this, Judge Brennan responds that if a plaintiff has “a clearly established constitutional right to record from a public place where the plaintiff has the lawful right to be, a plaintiff surely has such a right in his or her home.”

Brennan sees no “no principled basis” for the assumption that we have a protected right to record officers performing their duties in public that “does not extend to those performed in a private residence. The public’s interest in ensuring that police officers … do not abuse [their] authority … does not cease once they enter the private residence of a citizen.”

If anything, it is even more urgent to protect a citizen’s right to document proceedings when an officer’s actions are shielded from public view — from other witnesses.

But of course. It’s just Common Sense, isn’t it?

I’m Paul Jacob.

Abridge Too Far

Wednesday, May 7th, 2014

Sick and tired of “too much money” in politics? Worried the average citizen’s voice is being drowned out?

Thirty-six Democratic U.S. Senators have just the thing: a re-write of the First Amendment.

They’ve co-sponsored a proposed amendment to the U.S. Constitution: Senate Joint Resolution 19.

“We would give the power back to the Congress,” says chief sponsor Sen. Tom Udall (D-NM).

Wait. That’s amending reality. Congress never had any such power. The instructions in the Constitution are quite clear: “Congress shall make no law … abridging the freedom of speech, or of the press …”

These 36 solons reverse course with the wording

… Congress shall have power to regulate the raising and spending of money and in-kind equivalents with respect to Federal elections, including through setting limits on —

  1. the amount of contributions to candidates for nomination for election to, or for election to, Federal office; and
  2. the amount of funds that may be spent by, in support of, or in opposition to such candidates.

Our brand new constitution would not contain a single word of restraint. Instead, powerful congressional incumbents would wield complete and total control over all money to be raised or spent by their competitors.

And note: they already enjoy a tremendous name recognition advantage over their challengers. What happens when incumbents limit campaign spending too low for challengers to compete?

Its negation of rights is so sweeping that the amendment actually states, “Nothing in this article shall be construed to grant Congress the power to abridge the freedom of the press.”

No worries for the New York Times, then. But just how much of the First Amendment do the rest of us get to keep?

This is Common Sense. I’m Paul Jacob.

Spring’s Decisions

Wednesday, April 23rd, 2014

Spring is in the air, and old men’s hearts turn to thoughts of . . . law.

Yes, Supreme Court Decision Season has begun. Yesterday, two decisions were handed down.

In Schuette v. BAMN, Justice Kennedy “announced” the decision to reverse a previous court’s determination overruling a citizen-initiated constitutional amendment in Michigan. Kennedy (joined by Alito and Chief Justice Roberts) found that the people could prohibit race-based affirmative action policies in their state. After all, the Supreme Court had merely allowed such practices in previous cases. It did not require them.

This shouldn’t be controversial — indeed, it was decided 6-2 with liberal Justice Stephen Breyer joining conservatives. Still, Justice Sotomayor read her dissent from the bench, saying “without checks, democratically approved legislation can oppress minority groups.”

The democratically approved legislation in this case prohibited discrimination on the grounds of race — hardly a source of oppression for anyone. Ilya Somin’s prediction of this decision last October is worth contrasting to Sotomayor’s worry: “In no conceivable world can the Equal Protection Clause — the constitutional provision that bans racial discrimination — prohibit a state law that bans racial discrimination.”

Justice Scalia (joined by Clarence Thomas) used his concurring opinion to make some sense of the constitutional status of race in American higher education with “It has come to this.” It’s quite a read.

But there was no joining of Thomas and Scalia in Navarette v. California. Thomas wrote the opinion, deciding that a traffic stop drug bust was okee-dokee, even if initiated by a 911 caller complaining of a truck-driver’s alleged bad driving. Scalia called the decision “a freedom-destroying cocktail.”

So much for the lock-step left-right divide on the High Court.

This is Common Sense. I’m Paul Jacob.

Fifth Dimension Feds

Thursday, March 6th, 2014

I like the Fifth Amendment.

I took it myself in 2007 when Oklahoma Attorney General Drew Edmondson was witch-hunting with his grand jury. My attorney advised that I had more to fear from innocently misstating something and being vindictively charged with perjury than from the ridiculous indictments the AG would file against the “Oklahoma 3” — and then dismiss.

The Fifth Amendment protects the individual from government fishing expeditions, from browbeating by big, bad prosecutors — which includes congressional committees acting as such.

I don’t want to diminish our Fifth Amendment rights in any way, for any citizen.

Even when Citizen Lois Lerner asserts her Fifth Amendment privilege while the acting director of the IRS’s Exempt Organizations Division. And yes, even in yesterday’s repeat performance — having since retired with a pension — she still avoids congressional questions about official actions that appear to violate fundamental civil rights.

The House committee may charge Lerner with contempt (I already do). Admittedly, without her testimony, we may never know the full extent of the official campaign against certain political groups.

But we do know enough to take action.

Free and democratic participation in society requires a better system. Each non-profit group that forms must file a tax return, so there is transparency and oversight. The time has come to shut down the IRS Exempt Organizations Division approval process for non-profit groups and end the current prior restraint on participating in public policy.

We don’t need the Internal Revenue Service to stand as a censor bureaucratically or politically approving or dawdling to decide whether certain groups are permitted to organize.

A free society cannot tolerate it.

This is Common Sense. I’m Paul Jacob.

Stopping “Stop and Frisk”

Tuesday, August 13th, 2013

It doesn’t seem at all surprising that New York Mayor Bloomberg supports both his unconstitutional anti-Big Gulp paternalism and his now-overruled “Stop and Frisk” police state nastiness. It’s “for our good,” not any wise dedication to principle, that he wants to prevent us from drinking big sugary sodas, and “for the peace” that he wants police to stop and manhandle thousands, millions of “suspicious looking” people.

Both policies clearly impinge on individual liberty. The former, in that it prevents people from peacefully doing what they want. The latter, in that it treats innocent people as guilty, as “suspicious” just because of the way they appear — mainly their clothing choices, age, and (especially) race.

The judicial ruling is, in its own way, inspiring. “The goals of liberty and safety may be in tension, but they can coexist,” Judge Shira Scheindlin writes, adding that “the Constitution mandates it.” The ruling is also something of an education, for the judge notes that it’s not her business to make policing effective. It’s to make policing constitutional. Constitutional limits are necessary to rein in the potential of government to morph into tyranny.

And “stop and frisk” sure seems like tyranny to the people continually harassed on the streets. After all, the judge found that “the stopped population is overwhelmingly innocent, not criminal.” Treating innocent citizens like criminals doesn’t inspire respect for the law.

And it sure is nice to see Bloomberg take another big gulp from a judicial ruling limiting his power.

This is Common Sense. I’m Paul Jacob.

Dick Durbin’s Dangerous Idea

Tuesday, July 9th, 2013

Politicians think in terms of institutions. If you identify yourself as an individual, a mere citizen, pfft: you’re nothing. But say you are from a lobbying group, or a government bureau, or a news organization — suddenly you matter.

That’s even how they interpret the Constitution.

They are wrong.

Back in May, Illinois Sen. Dick Durbin expressed doubt whether “bloggers, or ‘someone who is Tweeting,’ should be given media shield rights.” He believes a big unanswered question looms:

What is a journalist today in 2013? We know it’s someone that works for Fox or AP, but does it include a blogger? Does it include someone who is tweeting? Are these people journalists and entitled to constitutional protection?

Durbin thinks he’s both clever and profound to ask “21st century questions about a provision in our Constitution that was written over 200 years ago.”

But he is actually missing the whole enchilada, the point of the Constitution.

First, our two-century old freedoms don’t have an expiration date. Second, individuals have rights, not “institutions.” And not because we belong to a group. Either everyone has a basic right, or no one does.

Glenn Harlan Reynolds countered Durbin’s institutional prejudice with a fine piece in the New York Post, where he takes a common sense position: “a journalist is someone who’s doing journalism, whether they get paid for it or not.”

Reynolds reminds us that, in James Madison’s time, “it was easy to be a pamphleteer . . . and there was real influence in being such.”

Just so for today’s Tweeters and bloggers.

Hey: as far as I’m concerned, you’re being a journalist just for commenting on this at ThisIsCommonSense.com.

I’m Paul Jacob.

No Right to Defend Your Rights

Friday, June 28th, 2013

You have no right as a voter to defend your interests as a voter. Not in federal court.

So decides the Supreme Court in Hollingsworth v. Perry, a case about a controversial California ballot question. The court ruled 5-4 that petitioners “lack standing.” Their interest wasn’t “particularized” enough.

Passed in 2008, Proposition 8 amends the California constitution to stipulate that “only marriage between a man and a woman is valid or recognized in California.”

Two questions must be distinguished. One, whether Proposition 8 is consistent with the U.S. Constitution. The high court could have agreed with the lower one that it isn’t. Two, whether voters – in this particular case, the official state recognized proponents of the measure – may judicially defend a law brought to ballot by themselves and duly enacted, when state officials decline to defend that law.

I’m no fan of Prop 8. But for the land’s highest court to rule that voters and petitioners have no “standing” here is a horrid precedent. It tells government officials to take heart if they dislike a law that voters have passed. Maybe not enforce or defend it at all, say — and regardless of any constitutional finding. After all, what can We the People do? It’s not as if we have standing!

Justice Kennedy, in dissent, pinpoints the default: “the Court fails to grasp or accept . . . the basic premise of the initiative process . . .  The essence of democracy is that the right to make law rests in the people and flows to the government, not the other way around.”

Oh, yes, the people do have standing.

This is Common Sense. I’m Paul Jacob.