On Protecting The Innocent, Or, Is There A Death Penalty Compromise?

I don’t feel very good about this country this morning, and as so many of us are I’m thinking of how Troy Davis was hustled off this mortal coil by the State of Georgia without a lot of thought of what it means to execute the innocent.

And given the choice, I’d rather see us abandon the death penalty altogether, for reasons that must, at this moment, seem self-evident; that said, it’s my suspicion that a lot of states are not going to be in any hurry to abandon their death penalties anytime soon now that they know the Supreme Court will allow the innocent to be murdered.

So what if there was a way to create a compromise that balanced the absolute need to protect the innocent with the feeling among many Americans that, for some crimes, we absolutely have to impose the death penalty?

Considering the circumstances, it’s not going to be an easy subject, but let’s give it a try, and see what we can do.

Let’s Fix An Error Dept.: Apologies are in order, because in our last story we identified The Riverside Church in Manhattan as the place where George Carlin learned to be Catholic – and that could not have been more incorrect. Bad research was the culprit here, and it’s something that we’ll obviously be working to improve. So, once again: sorry, and my bad.

Now if all the states want to limit the imposition of the death penalty to just the guilty (and after what we just saw in Georgia, that’s no longer 100% certain), one way you could do it would be to make it a lot harder to prove guilt – and that’s what we have in mind for today’s proposal.

As you may recall, we convict today with a “burden of proof” that is described as “guilt beyond a reasonable doubt”; as we now know, it is possible to prove guilt, beyond a reasonable doubt, even when there’s a whole lot of reasonable doubt to be found.

In Davis’ case, he was given a chance on appeal to prove his innocence, and despite this conclusion from the Judge hearing the case…

"Ultimately, while Mr. Davis's new evidence casts some additional, minimal doubt on his conviction, it is largely smoke and mirrors…"

…Davis was still executed.

So the way I would get at this problem would be to change the burden of proof in these cases: if you want to execute someone who is facing an aggravated murder or other capital charge, instead of “guilt beyond a reasonable doubt”, I would require “guilt beyond all doubt”.

If you can’t get to guilt beyond all doubt, but you can prove guilt beyond a reasonable doubt, then you could impose no sentence harsher than life without parole.

If this proposal had been in effect in Davis’ case, there could have been no execution after he argued that he was denied the effective assistance of counsel, because that would have erased “all doubt”; after that he would have had the rest of his life to demonstrate that he was wrongly convicted.

There are going to be a few reasons people might not like this proposal, and I’ll try to address some of them briefly:

Right off the bat, many will complain that because of the new burden of proof it will be virtually impossible to have executions at all; I would tell those folks that if that were to occur…then the system is working. The entire purpose of this plan is to make executions an extraordinarily rare occurrence and to move just about everyone on Death Rows nationwide to a “life without parole” future.

Beyond that, many will say that capital punishment is morally unacceptable under any circumstances, and to those folks I would respond that y’all make a pretty good point…but at the moment there are a lot of Americans who do not hold that moral position – and they have strong feelings too – and unless we can move them to a different point of view, then the best chance we have to prevent the innocent from being executed is to find some sort of compromise like this one.

(Don’t believe me about that “strong feelings” thing? How many of the readers here would be OK with the death penalty for Osama Bin Laden, if he were proved “beyond all doubt” to have been the person behind 9/11?)

A similar line of thought is expressed in the idea that we are seeing more and more voters who do oppose capital punishment, and with a bit of patience, this problem will go away.

After what happened to Troy Davis, I think there’s more urgency now than there was in times past, and that’s because we now see that at least one State will quickly kill a prisoner in order to “clear the case”, suggesting to me that patience is not as good an option as it was before.

Finally, I suspect many will feel that the effort to pass a proposal like this one would distract from the effort to end the death penalty, which is, again, a pretty good argument.

To those folks I would respond that we may get some states to end the death penalty today, but there are a lot of other states that are not going to want to give up the death penalty for some time to come (remember the people who cheered Rick Perry’s execution record?), and if we aren’t going to be able to end the death penalty completely, then I think we have to offer some sort of compromise; a compromise based on the concepts of “killing the innocent isn’t The American Way” or “you could still execute Osama” could appeal to voters who simply won’t give up on the death penalty altogether.

So that’s what we have for you today: even though I personally would prefer that we end the death penalty and just go to life without parole for all these crimes, I don’t think we’re going to achieve that in a lot of states; with that in mind I’m proposing a compromise that would protect the innocent by ending virtually all executions, even as it allows an extraordinarily difficult to reach exception that could satisfy those who absolutely do not want to see the application of the death penalty come to an end.

It’s an imperfect compromise, I’ll admit – but in a big ol’ swath of America that runs from roughly Florida to Idaho, it may be the best compromise we can make right now, and right now, in those places, that might have to be good enough.

Entirely Off The Subject Dept.: We are still trying to get signatures for the petition to change the name of Manhattan's W 121st St (one block from Seminary Row) to George Carlin Street, and we need your help; you can sign right here. The goal is to reach 10,000 signatures by Monday, so...get to it.

On Living Up To Your Words, Or, Tornado? That’s Not In The Constitution.

There are lots of big tough words coming out of our friends in the Tea Party these days, especially when it comes to the permissible functions of the Federal Government.

”If it’s not specifically enumerated in the Constitution,” they say, “It must be a function of the States—and the 10th Amendment says so!”

None are tougher in their language than those living in the States located below the old Mason-Dixon line—and by an amazing coincidence, just this weekend pretty much all of those States got a bit of a “gut check” in the form of dozens of tornados that slammed into the area.

So we’re going to put the Tea Party philosophy to the test today, and see just what exactly the Federal Government should—and should not—be doing to fulfill the Tea Party vision and to help those folks who were hit by this particular natural disaster.

“…For that was not true; his attitude was not to be explained by greed, or at any rate by greed alone, but rather by the touchiness which his great labors and their complete unsuccess had bred in him.”

--From the story “The Village School Master [The Giant Mole]”, by Franz Kafka

Stories often begin by setting the terms of the discussion; that will be true today, and the framework for where we’ll start is Article 1, Section 8 of the US Constitution, which is the “unless it’s enumerated…” part of the Tea Party argument:

The Congress shall have Power To lay and collect Taxes, Duties, Imposts and Excises, to pay the Debts and provide for the common Defence and general Welfare of the United States; but all Duties, Imposts and Excises shall be uniform throughout the United States;

To borrow money on the credit of the United States;

To regulate Commerce with foreign Nations, and among the several States, and with the Indian Tribes;

To establish an uniform Rule of Naturalization, and uniform Laws on the subject of Bankruptcies throughout the United States;

To coin Money, regulate the Value thereof, and of foreign Coin, and fix the Standard of Weights and Measures;

To provide for the Punishment of counterfeiting the Securities and current Coin of the United States;

To establish Post Offices and Post Roads;

To promote the Progress of Science and useful Arts, by securing for limited Times to Authors and Inventors the exclusive Right to their respective Writings and Discoveries;

To constitute Tribunals inferior to the supreme Court;

To define and punish Piracies and Felonies committed on the high Seas, and Offenses against the Law of Nations;

To declare War, grant Letters of Marque and Reprisal, and make Rules concerning Captures on Land and Water;

To raise and support Armies, but no Appropriation of Money to that Use shall be for a longer Term than two Years;

To provide and maintain a Navy;

To make Rules for the Government and Regulation of the land and naval Forces;

To provide for calling forth the Militia to execute the Laws of the Union, suppress Insurrections and repel Invasions;

To provide for organizing, arming, and disciplining, the Militia, and for governing such Part of them as may be employed in the Service of the United States, reserving to the States respectively, the Appointment of the Officers, and the Authority of training the Militia according to the discipline prescribed by Congress;

To exercise exclusive Legislation in all Cases whatsoever, over such District (not exceeding ten Miles square) as may, by Cession of particular States, and the acceptance of Congress, become the Seat of the Government of the United States, and to exercise like Authority over all Places purchased by the Consent of the Legislature of the State in which the Same shall be, for the Erection of Forts, Magazines, Arsenals, dock-Yards, and other needful Buildings; And

To make all Laws which shall be necessary and proper for carrying into Execution the foregoing Powers, and all other Powers vested by this Constitution in the Government of the United States, or in any Department or Officer thereof.

OK…so, let’s talk about “who’s who” in this little drama (for the record, this won’t be a complete list of events or people; it’s just a sample for the purposes of discussion):

Arkansas had tornados Friday night; seven people died (five of those from winds not attributable to a tornado), and according to “The Post and Courier” of Charleston, SC, there had been three days of warnings from the National Weather Service before this particular weather event.

The paper also reports that Oklahoma, Louisiana, Tennessee, and Mississippi were hit.

North Carolina was hit with as many as 62 tornados over the weekend, with at least 22 dead.

In Virginia, Saturday, a 12-mile swath of Gloucester County was severely damaged, with a total of 5 dead in the Commonwealth.

North Carolina, Alabama and Mississippi have declared a State of Emergency, so has Virginia. Oklahoma has been under one State of Emergency due to wildfires since March, a second Emergency was declared over the weekend, and Federal assistance was again requested by Governor Mary Fallin to help make things better.

To keep this to a reasonable length, we’re going to drill in on three States, and three Governors; those States are Virginia, Alabama, and Oklahoma.

Alabama’s new Governor, Robert Benchley, is one of those “enumerated powers” kind of guys, in fact, he signed The 10th Amendment Pledge; the parts which concern us here read as follows:

The phrase, “General Welfare,” in Article I, Section 8 does not authorize Congress to enact any laws it claims are in the “General Welfare” of the United States. The phrase sets forth the requirement that all laws passed by Congress in Pursuance of the enumerated powers of the Constitution shall also be in the General Welfare of the United States…

… I do, and will continue to, oppose any and all efforts by the federal government to act beyond its Constitutional authority.

Let’s move on: the Tenth Amendment Center is proud of Oklahoma’s Mary Fallin for turning down the Federal grant to set up the State’s “Obamacare” insurance exchange (officially part of the Patient Protection and Affordable Care Act [PPACA]) on 10th Amendment grounds—and she would also want you to know that:

“…I believe, as I know many of our legislators and the majority of our citizens do, that the PPACA is unconstitutional, fatally flawed and ultimately harmful to our economy and the health of our citizens…”

And then there’s Virginia:

Gov. Bob McDonnell on Friday drew cheers from the tea party crowd as he announced support for a “Repeal Amendment” to the Constitution.

“There has been a bi-partisan trampling of that federal compact of the 10th Amendment,” said McDonnell as he spoke at the Virginia Tea Party Patriots Convention in Richmond.

A “Repeal Amendment” was proposed last month by House Speaker Del. Bill Howell, R- Fredericksburg. The amendment to the U.S. Constitution would allow a federal act to be over-turned if two-thirds of state legislatures voted against it. Such an act would sway power to state legislatures, and is a popular concept in tea party circles.

When the panel moderator asked McDonnell is he would support such an amendment, he replied “yes.”

And now it’s disaster time, and these Governors are looking for disaster help…but they have a very particular view of how the Federal Government and the States ought to relate to each other…so… at this moment of urgency, just what precisely are the specifically enumerated powers that the Federal Government has at our disposal for disaster relief?

Well, according to my quick re-reading of Article 1, Section 8, that would be exactly…no power at all, except to act in case of insurrection, to try any Federal criminal offenses that might occur, and to repair any Federal docks or other needful Buildings.

(You’ll note I did not say “try and punish” any Federal criminal offenses. That’s because there’s nothing I can see in Article 1, Section 8 about Federal prisons.)

I don’t see anything in there about the National Weather Service, either, so from now on, if a State wants to know if a tornado’s coming, I guess they better pony up the cash and start themselves a State Weather Service, or buy the forecasting and warning services from a private contractor.

(This could be good for the economy, by the way: forecasting the weather requires satellites, and if every State that believes in self-reliance each launches their own satellite constellations…that’s some jobs, right there.)

FEMA? In the view of those who truly understand, it’s unconstitutional on its face, and, therefore, the Governors shouldn’t be looking to them for help.

The loans that businesses and citizens rely on to get back on their feet? Show me the “enumerated” language that permits those activities, because I can’t find it.

Grants to States to cover their extraordinary expenses? I don’t see anything authorizing such activities, and with that in mind…I don’t think so.

According to the “purist” view, the 10th Amendment requires all of this to be handled by the States, not the Federal Government; that’s why, for the life of me, I can’t figure out why these Governors weren’t thinking about disaster planning from the start of their terms.

Why weren’t these supposedly self-reliant States ready when this happened?

I mean, each of these States already has an emergency management department, and I’m sure they can manage much better locally than the Feds (or at least they claim they can), so why are they even asking for Federal help in the first place?

How is it possible that these Governors never considered that protecting the citizens of their States would be “Job 1”, to steal a phrase, and, to make a moral point, why should the rest of us be bailing them out now?

I mean, hey: you told us these were State problems, and now you have problems, and you still have States, so you know what?

Live up to your words: get all “10th Amendment-y”, and suck it up, and deal with it yourselves.

That’s what you told us you wanted, when you were Full Of Big Campaign Talk, so now do it, Governors, and stop all that crying and whimpering to us for outside help, and go make that 10th Amendment work for you.

Show us how much better local control is than when the Giant Hand Of The Federal Government Tells You What To Do.

Be the self-reliant Brawny Men that you were in your campaign ads.

And I’d pose the same challenge to anyone who voted for these Governors:

Remember how you all cheered when your candidates told you Government wasn’t the solution; that it was, instead, the problem?

If you really believed that, then what in the world are you doing asking for the Federal Government’s help now?

After all, you said you wanted Government “off your back”, and “the Government that governs best governs least”, right, so why would you want Government in your faces at a time when you’re trying your hardest just to get back on your feet?

Why aren’t you (and I’m thinking specifically of you, Tri-Corner Hat Patriot Guys) demanding that the Federal Government stay out of this and leave the States alone?

And it’s only fair: there was no tornado in California this weekend, so why should Californians pay taxes for your disaster?

And remember how adamant you were, just a couple of weeks ago, that the budget cuts associated with those Continuing Budget Resolutions weren’t deep enough?

Well, how are we supposed to make the kind of budget cuts y’all wanted on the Federal side when you’re coming around here demanding more money?

We have a deficit, remember, and we can’t be spending money we don’t have—and even if we had the money, we couldn’t spend it on helping you, because, as you all recall, there’s nothing specifically in the Constitution to allow it.

This is your problem, Constitutional purists, and, according to your own logic, it’s not ours…so if you want your roads and schools fixed, ask your citizens to volunteer to do the work or something.

Since we can no longer help you, maybe the Red Cross or some other private charity could fund the rebuilding of your communities.

Since so many conservatives believe corporate and religious philanthropy will fill in the gaps in the shrinking “social safety net”, you could try asking churches and private industry to do the work for you as a community service; I’m sure they’ll jump right in and pick up all the slack.

Hey: you were the ones full of tough talk last November, my Tea Party friends, and now it’s 10th Amendment “gut check” time, and I want to see you live up to your own words, if you have the “man pants” to do it…or I want you to see you acknowledge that this was all a giant load of hooey.

That maybe there’s a place for a United States of America, that maybe there is such a thing as “general Welfare”…or maybe even that being a 10th Amendment purist might be great down at the ol’ Heritage Foundation when you’re hustling for campaign money, but that once the big winds start blowing, ideology ain’t worth spit compared to a system of weather radars and satellites and a FEMA that will come and bail your butt out if it all goes wrong.

And if you voted for one of these clowns…either you need to get smart, right now…or maybe we need to cut the cord.

Maybe you need to see what your own vision of “10th Amendment reality” is really all about.

Maybe, just as so many of you have demanded, we should mind our own Federal business and let local government govern best.

And if it doesn’t work out, then, maybe, you’ll wake up and realize that Ronald Reagan was wrong: sometimes Government is the only game in town, and when it’s not around, providing helpful solutions…that’s when you got real problems.

Prop 8 Preview: The “Basis” Is The Thing

As you look at today’s Prop 8 ruling, I want you to think back a few weeks to the Massachusetts Defense of Marriage Act (DOMA) rulings for a bit of legal logic that will make a huge difference as this case moves through any appeals process.

What I want you to think about are two moderately obscure concepts: “strict scrutiny” and “rational basis”. The difference between the two will tell us how hard Prop 8 will be to defend, and we’ll quickly walk through what you need to know, right here, right now.

We have a long discussion available, here and here, that explains exactly what happened in Massachusetts a few weeks ago, but the short version is something like this: a series of Plaintiffs, including private persons and the State of Massachusetts, sued the Federal Government, alleging that DOMA violates the Constitution.

Judge Joseph Tauro, of the District of Massachusetts, ruled in two rulings, released on the same day, that DOMA does indeed fail Constitutional muster, but he added a rather unusual twist to the ruling, and to explain that twist, we now need to talk about the concepts of “strict scrutiny” and “rational basis”.

It works like this: according to the Supreme Court, some rights are more “fundamental” than others. If a government seeks to intrude upon one of these fundamental rights, they need a very good reason…one that’s so good, in fact, that it can survive the “strict scrutiny” of an examining Court.

Marriage for the purpose of procreation has already been established as a fundamental right by the Supreme Court in the 1967 ruling Loving v Virginia; nobody’s ever really specifically addressed the question of whether those who do not intend to have children have that same fundamental right to marriage.

Other rights are considered less fundamental; governments can intrude upon those “liberty interests” if the intrusion:

“…is “narrow enough in scope and grounded in a sufficient factual context for [the Court] to ascertain some relation between the classification and the purpose it serve[s]… …As such, a law must fail rational basis review where the “purported justifications…[make] no sense in light of how the [government] treated other groups similarly situated in relevant respects…”

That intrusion is far easier to justify under this “rational basis” standard than it is under strict scrutiny.

So here’s the twist: in the Massachusetts cases, Plaintiffs argued that DOMA failed the strict scrutiny test—and if marriage without procreation is considered to be a fundamental right, then the Plaintiffs should prevail, and DOMA should be ruled unconstitutional.

But the Judge ignored that argument.

Instead, he analyzed the case from a rational basis point of view—and even under that far less restrictive standard, he ruled that there was no rational basis for the existence of DOMA. In fact, during rational basis review the Defendant’s attorneys, or even the Judge, can invent their own “rational bases” for the law, during the trial, and apply those to the argument, and even with all that help nobody could figure out any reason for DOMA to exist—except for the possibility that a majority of the Congress at the time just didn’t like gay people.

Again, from Tauro’s opinion in Gill v Office of Personnel Management:

“In sum, this Court is soundly convinced, based on the foregoing analysis, that the government’s proffered rationales, past and current, are without “footing in the realities of the subject addressed by [DOMA].” And “when the proffered rationales for a law are clearly and manifestly implausible, a reviewing Court may infer that animus is the only explicable basis. [Because] animus alone cannot constitute a legitimate government interest,” this Court finds that DOMA lacks a rational basis to support it…

…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.”

And that’s what I want you to be looking for today: does the opinion from California look beyond strict scrutiny and analyze this case under rational basis review—and if they do, will the challenge to Prop 8 be upheld, even under a standard that is easier to defend?

If Prop 8 fails, even under rational basis, it’s going to be a lot tougher for the Supreme Court, who we assume will eventually be getting this case, to justify keeping the law alive. That’s because they would presumably have to find some rational basis of their own to assign to the law, which, so far, has proven to be rather a tough thing to do.

There’s still a few hours to wait, so go grab a coffee, settle back, and wait for the fun…but it will indeed be a big legal deal, especially if a rational basis analysis is applied, and Prop 8 still fails.

On A Pair Of Victories, Part Two, Or, DOMA Ruled Unconstitutionally Irrational

We are back, just a bit late, to wrap up the discussion we began about the pair of rulings issued in Boston by Federal District Judge Joseph Tauro this week that declare the federal Defense of Marriage Act (DOMA) unconstitutional.

In the first half of the conversation, we examined the ruling in Commonwealth of Massachusetts v Department of Health and Human Services (HHS), today we examine the companion case, Gill v Office of Personnel Management (OPM).

I don’t usually tell you the end of the story at the beginning, but this time I will: there are a lot of happy Plaintiffs this week, and the Federal Government, as Defendant (whom I will refer to as “the Feds” from time to time), is not so happy at the moment.

As with last time, there’s a lot of ground to cover, and the sooner we get to it, the better.

In the companion case, Massachusetts v HHS, the Plaintiff was the State of Massachusetts, who alleged, convincingly, that the DOMA definition of “spouse” was forcing the State to illegally discriminate against its own citizens.

Today’s Plaintiffs are seven same-sex couples, all legally married in Massachusetts, and three survivors of same-sex spouses.

They all seek to overturn Section 3 of DOMA; the definitions of “marriage” and “spouse” are the issue in question.

The Feds report that Congress is acting under the authority of Article IV Section 1 of the US Constitution, which allows them to determine the “effect” of certain legal instruments issued by the various states:

“Full Faith and Credit shall be given in each State to the public Acts, Records, and judicial Proceedings of every other State. And the Congress may by general Laws prescribe the Manner in which such Acts, Records and Proceedings shall be proved, and the Effect thereof.”

When DOMA (H.R. 3396 (104th)) was enacted, in 1996, Section 2 changed the “effect” of marriage by allowing one State, for the first time, to ignore the legal proceedings of another:

"No State, territory, or possession of the United States, or Indian tribe, shall be required to give effect to any public act, record, or judicial proceeding of any other State, territory, possession, or tribe respecting a relationship between persons of the same sex that is treated as a marriage under the laws of such other State, territory, possession, or tribe, or a right or claim arising from such relationship."

The Federal Government also refuses to recognize that same-sex couples are married, and over the years several of these Plaintiffs, who are federal employees, have been trying to enroll their same-sex spouses in various federal health care plans, including the surviving spouse of now-deceased former Representative Gerry Studds; all were denied.

Other plaintiffs seek certain Social Security benefits, including survivor benefits, and one seeks to have their monthly Social Security payment adjusted upward based on how much their spouse earned.

The final group of plaintiffs want to be recognized as married couples for federal income tax purposes.

The Court denied standing to Representative Studd’s spouse; this because other legal action must be concluded before this Court could act on his claims.

The Judge pointed out that 1138 various federal benefits are at issue; many of them non-monetary.

He also reviewed the statements made by various Members of Congress as DOMA was being enacted; these statements all revolved around how the moral fiber of the Nation was threatened by same-sex marriage, or something similar.

Now we need to address how Courts resolve questions related to equal protection. This, from the opinion:

“To say that all citizens are entitled to equal protection of the laws is “essentially a direction [to the government] that all persons similarly situated should be treated alike.” But Courts remain cognizant of the fact that “the promise that no person shall be denied the equal protection of the laws must coexist with the practical necessity that most legislation classifies for one purpose or another, with resulting disadvantage to various groups or persons.” And so, in an attempt to reconcile the promise of equal protection with the reality of lawmaking, Courts apply strict scrutiny, the most searching of constitutional inquiries, only to those laws that burden a fundamental right or target a suspect class. A law that does neither will be upheld if it merely survives the rational basis inquiry–if it bears a rational relationship to a legitimate government interest."

The Plaintiffs assert DOMA should fail under the strict scrutiny standard, and explain why...but the Judge ignores those arguments; this is because the Judge believes DOMA fails the rational basis test, which is the “easier” of the two standards:

“...a challenged law can only survive this constitutional inquiry if it is “narrow enough in scope and grounded in a sufficient factual context for [the Court] to ascertain some relation between the classification and the purpose it serve[s]...

...As such, a law must fail rational basis review where the “purported justifications...[make] no sense in light of how the [government] treated other groups similarly situated in relevant respects...”

Attorneys for the Defendant assert that Congress wanted to achieve the following:

“...(1) encouraging responsible procreation and child-bearing, (2) defending and nurturing the institution of traditional heterosexual marriage, (3) defending traditional notions of morality, and (4) preserving scarce resources.”

The Court the notes that those same attorneys have now “disavowed” Congress’ stated intents in defending against these lawsuits...but that doesn’t matter, because, when passing legislation:

“...the government “may not rely on a classification whose relationship to an asserted goal is so attenuated as to render the distinction arbitrary or irrational.”

As a result, the Court will examine those proffered motivations.

The Court believes there is no truth to the idea that banning same-sex marriage somehow encourages responsible child-bearing; the Feds acknowledge the same.

“But even if Congress believed at the time of DOMA’s passage that children had the best chance at success if raised jointly by their biological mothers and fathers, a desire to encourage heterosexual couples to procreate and rear their own children more responsibly would not provide a rational basis for denying federal recognition to same-sex marriages. Such denial does nothing to promote stability in heterosexual parenting.”

The Judge goes on to point out that it’s not all about procreation: childless heterosexual couples are allowed to marry, and the ability or inability to breed has never been part of deciding who can marry.

Is “traditional” marriage nurtured or protected by banning same-sex marriage?

The Court notes that telling same-sex couples they can’t “Federally” marry probably won’t make them want to marry members of a different sex...especially if they’re already married, as all these Plaintiffs are.

The Court also can’t figure out how making same-sex couples pay more income tax makes heterosexual marriages more secure.

“What remains, therefore, is the possibility that Congress sought to deny recognition to same-sex marriages in order to make heterosexual marriage appear more valuable or desirable. But to the extent that this was the goal, Congress has achieved it “only by punishing same-sex couples who exercise their rights under state law.” And this the Constitution does not permit...

...Neither does the Constitution allow Congress to sustain DOMA by reference to the objective of defending traditional notions of morality. As the Supreme Court made abundantly clear in Lawrence v. Texas and Romer v. Evans, “the fact that the governing majority in a State has traditionally viewed a particular practice as immoral is not a sufficient reason for upholding a law....” (Emphasis is original)

With the Defendants already behind 4-0, they have presented to the Court new “rational bases” for the purposes of this litigation:

They now assert that Congress can impose the status quo through legislation until the states work it out for themselves, and that DOMA was the only way to make sure everyone gets the same federal marriage benefits; they also feel that when new social problems come along, Congress is allowed to employ an “incremental response”.

Judge Tauro disagrees. He continues a conversation he began in Massachusetts v HHS that relates the long history of marriage as a state-regulated activity. He suggests the government has no legal interest in pursuing a uniform national definition of marriage; in fact, says the Judge, the Feds have deferred to the states all along on who is married, and, with this one exception, still do.

He provides numerous current examples from law and regulation:

“...42 U.S.C. § 416(h)(1)(A)(i) (defining an “applicant” for purposes of Social Security survivor and death benefits as “the wife, husband, widow or widower” of an insured person “if the Courts of the State” of the deceased’s domicile “would find such an applicant and such insured individual were validly married”); 20 C.F.R. § 404.345 (Social Security) (“If you and the insured were validly married under State law at the time you apply for . . . benefits, the relationship requirement will be met.”)...”

Judge Tauro notes that the states were even allowed to decide for themselves the validity of interracial marriages until the 1960s:

“The government suggests that the issue of same-sex marriage is qualitatively different than any historical state-by-state debate as to who should be allowed to marry because, though other such issues have indeed arisen in the past, “none had become a topic of great debate in numerous states with such fluidity.”

Tauro disposes of this argument by reminding everyone that the question of interracial marriage was also just a bit controversial, in its time.

He then reminds us that this is the first time the Federal Government has ever defined marriage; he also notes that all previous efforts to create a Federal definition were attempted Constitutional Amendments; he assumes this was because Congress knew that absent an Amendment, they couldn’t define marriage for the states.

“...The states alone have the authority to set forth eligibility requirements as to familial relationships and the federal government cannot, therefore, have a legitimate interest in disregarding those family status determinations properly made by the states.”

The Defendant tries to explain that DOMA is an incremental approach, but the Court dismisses this explanation. The Judge explains that DOMA does not incrementally advance same-sex marriage; instead, it permanently denies it to the Plaintiffs.

On the other hand, the Feds do recognize any opposite-sex marriage, under any state’s laws, and there appears to be no federal consistency in how marriage is defined...except to ban same-sex marriage.

The Court provides an example: a 13- and a 14-year-old opposite-sex couple could marry in New Hampshire, and even though Judge Tauro feels no other state would sanction such a marriage, the Feds would, because New Hampshire says their married, and that’s good enough for the Federal Government.

The Feds argue for “consistency” in applying marital benefits and assert that DOMA reduces the federal administrative burden, and the Court dismisses both arguments: a consistent approach would be to treat all married couples equally, and there seems to be no extra administrative burden associated with same-sex married couples relative to opposite-sex couples when it comes to things like getting the spouse on the health insurance or processing a tax return as “married – filing jointly”.

The marriage license is the administrative issue, and that’s already been taken care of by the various states involved.

The Plaintiffs argue that DOMA actually makes things less consistent and more complex; the Judge agrees.

“In sum, this Court is soundly convinced, based on the foregoing analysis, that the government’s proffered rationales, past and current, are without “footing in the realities of the subject addressed by [DOMA].” And “when the proffered rationales for a law are clearly and manifestly implausible, a reviewing Court may infer that animus is the only explicable basis. [Because] animus alone cannot constitute a legitimate government interest,” this Court finds that DOMA lacks a rational basis to support it...

...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.”

Well, I’ll tell you what...this is pretty heady stuff right here: you very rarely see a Federal Judge absolutely reject the positions of the Federal Government, but in this case Judge Tauro has.

He feels that the 10th Amendment reserves to the states the right to define who may marry and how, and that this has been the case since before we sent Marines to the shores of Tripoli.

He sees the Federal Government as having provided no rational basis for DOMA, twice; in fact, he feels that the effect of DOMA is exactly the opposite of what the Government attorneys claimed was the intent of Congress at the time the law was passed.

To put it very simply, just because the majority in Congress in 1996 may not have wanted same-sex couples to marry doesn’t mean the Constitution is on their side...and all that means there is a lot of thinking going on in the Department of Justice around an appeals strategy...but we have done enough for today, so we’ll leave that discussion for another time.

On Judicial Empathy, Or, Random Roadblocks Aren't Annoying. Really.

So a Supreme Court justice that hardly anyone noticed has announced his retirement and all of a sudden the lips of The Experts are all a-flutter with the word “Empathy”.

President Obama reports he wants his nominee to have it; and Republicans are convinced that the word is a secret code for something that eventually ends in the death of free speech, massive roundups of guns by the Secret United Nations World Police, and the Internment Of All The White People In Reeducation Camps Run By Americorps And ACORN And Gay People Who Want To Marry And Are Funded By George Soros.

It is suggested that Evil Activist Judges will trample the Constitution as they create Law out of whole cloth; and that only those who interpret the Constitution just as it was written can bring the proper attitude to the Court.

It sounds like somebody needs to come along and provide a couple of cogent thoughts about this whole empathy thing...and lucky for you, Gentle Reader, we have before us today specific examples of how the quality of empathy can express itself in Court Doctrine.

So right off the bat, a few words about how cases are interpreted by the Supreme Court are in order:

A lot of the talking heads on the tee-vee frame the Court’s job as one of basically hearing the arguments in a case, reviewing the record, and deciding whether some action of Government violates someone’s constitutional rights.

That framing ignores two huge elements of the Court’s job: resolving the conflicts between the protected rights of two groups of private citizens (for example, does the right of all citizens to have access to the “public square” for purposes of political campaigning override the right of shopping center owners to control who has access to their private property?)...and creating rulings that attempt to discern what the mood or motivation of the public might be regarding aspects of potential Court Doctrine (for example, does a particular item of pornography violate “prevailing community standards”?).

The obvious example of how all this can play out might be found in the way the Court saw things when they ruled in Plessy v Ferguson, followed later by Brown v Board of Education; in which the Supremes first ruled that “separate but equal” was just fine and then ruled it wasn’t fine after all. Lots of others will examine these cases in detail, so, instead, we shall take a different tack.

The Fourth Amendment, in requiring that searches not be “unreasonable” and that warrants be justified by probable cause, guaranteed that Justices would forever be required to interpret without clear definitions to guide them.

Let’s now examine how “empathy’ has affected those interpretations.

If you are driving north from San Diego to Los Angeles...and you’re not a Marine...you’ll be inspected by Customs and Border Protection officers manning an immigration checkpoint on I-5. It’s possible that you might be directed to a “secondary inspection” area for a search of the contents of your vehicle, based on nothing more than the hunch of the Inspector on duty.

In 1975, the Court, showing one kind of empathy, unanimously ruled that:

“The Fourth Amendment [is] held to forbid Border Patrol officers, in the absence of consent or probable cause, to search private vehicles at traffic checkpoints removed from the border and its functional equivalents...”

--United States v. Ortiz, 422 U.S. 891

However, Chief Justice Burger, who generally joined in the concurrences of the other Justices, had his own “empathetic” point of view:

“Like MR. JUSTICE WHITE, I can, at most, do no more than concur in the judgment. As the Fourth Amendment now has been interpreted by the Court, it seems that the Immigration and Naturalization Service is powerless to stop the tide of illegal aliens -- and dangerous drugs -- that daily and freely crosses our 2,000-mile southern boundary....Perhaps these decisions will be seen in perspective as but another example of a society seemingly impotent to deal with massive lawlessness.”

Amado Martinez-Fuerte, who had been arrested at the same checkpoint, probably thought that the Court would continue to see things as they had in 1975...but by 1976, the Court no longer felt as empathetic towards the concept that consent or probable cause...or even reasonable suspicion...was required for vehicle searches as they had the year before:

“To require that such stops always be based on reasonable suspicion would be impractical because the flow of traffic tends to be too heavy to allow the particularized study of a given car necessary to identify it as a possible carrier of illegal aliens.”

--United States v. Martinez-Fuerte, 428 U.S. 543

This ruling is particularly significant in that it allowed the checkpoint to operate under a general “warrant of inspection” (a device usually used only to allow building inspections and the like), and for the evidence obtained there to be admissible against individuals in criminal trials.

However, the plain text of the Fourth Amendment seems to take a different view, stating that:

“...no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.”

By this time, Thurgood Marshall had left the Court (his empathy demonstrated perhaps best by the fact that in 1954 he had argued—and won--Brown v Board of Education before the Supreme Court); and the new Court ruled 7-2 in favor of the Government’s position in Martinez-Fuerte.

You’ll recall that we discussed the fact that the Court often has to determine the public mood. Here’s a very specific example:

The Court, in deciding that the immigration checkpoint was not an “unreasonable” search, felt no empathy toward the idea that being stopped every day would bother any commuter who was legally using I-5 several days a week, nor to the concept that the delay of legal commercial traffic would be bothersome. Their sole concern was that the motorist would view the checkpoint as “legitimate”:

“Routine checkpoint stops do not intrude similarly on the motoring public. First, the potential interference with legitimate traffic is minimal. Motorists using these highways are not taken by surprise as they know, or may obtain knowledge of, the location of the checkpoints and will not be stopped elsewhere....The regularized manner in which established checkpoints are operated is visible evidence, reassuring to law-abiding motorists, that the stops are duly authorized and believed to serve the public interest. The location of a fixed checkpoint is not chosen by officers in the field, but by officials responsible for making overall decisions as to the most effective allocation of limited enforcement resources. We may assume that such officials will be unlikely to locate a checkpoint where it bears arbitrarily or oppressively on motorists as a class. And since field officers may stop only those cars passing the checkpoint, there is less room for abusive or harassing stops of individuals than there was in the case of roving-patrol stops...”

(A quick Fun Fact: the location of the checkpoint near San Clemente appears to have been chosen specifically because it allows the stopping of virtually all traffic between San Diego and Los Angeles. You might think setting up a checkpoint to stop all traffic is a bit arbitrary...and I would agree with you. The Court, obviously, did not.)

The ruling in Martinez-Fuerte also does not display empathy with the Defendants’ assertions that being ordered to “Secondary Inspection” is intrusive...even if there for no reason at all to suspect the vehicle--or even if the reason for the stop is entirely race-based:

“The defendants arrested at the San Clemente checkpoint suggest that its operation involves a significant extra element of intrusiveness in that only a small percentage of cars are referred to the secondary inspection area, thereby "stigmatizing" those diverted and reducing the assurances provided by equal treatment of all motorists. We think defendants overstate the consequences. Referrals are made for the sole purpose of conducting a routine and limited inquiry into residence status that cannot feasibly be made of every motorist where the traffic is heavy. The objective intrusion of the stop and inquiry thus remains minimal. Selective referral may involve some annoyance, but it remains true that the stops should not be frightening or offensive because of their public and relatively routine nature. Moreover, selective referrals - rather than questioning the occupants of every car - tend to advance some Fourth Amendment interests by minimizing the intrusion on the general motoring public...

... Thus, even if it be assumed that such referrals are made largely on the basis of apparent Mexican ancestry...we perceive no constitutional violation...As the intrusion here is sufficiently minimal that no particularized reason need exist to justify it, we think it follows that the Border Patrol...officers must have wide discretion in selecting the motorists to be diverted for the brief questioning involved.”

And with that (and a few cases to supplement the concept), the idea that the police require an actual reason to stop people and then conduct searches and seizures has gradually faded into a quaint anachronism of history.

So where does all this leave us?

Well, how about this: it leaves us more aware of the fact that there are rarely “simple” interpretations of the Constitution. Rather than just relying on the plain text of the document, the Justices, using the sense of empathy they’ve developed throughout their lives, interpret and create new law in each and every case.

It should leave us more aware that the arguments made by those who support “strict constructionists” for the Court reflect less of a desire to remain pure to the principles of the Constitution, and more a desire to advance very specific, and often radical, policies that favor Government over the People who are supposed to be its master—policies that are often based more on a sense of fear than an appreciation of the strength of the system their new policies seek to “save”.

Mr. Obama is absolutely correct in seeking a Justice with “empathy”.

Let’s just hope the one he picks has the kind of empathy that, for a change, advances civil liberties, instead of sending them to the sort of “Guantanamo Chainsaw Massacre” that Justice Scalia finds so in keeping with his sense of empathy.

Warning—commercial message ahead: I’m competing for a Netroots Nation scholarship, and I could use your support. Just head on over to the Democracy for America website, click on the “Add your support” link under “Grassroots Supporters”, and offer a word or two...and with that, thanks very much, and we return you to your regular programming.

On Traffic Checkpoints, Part Two, Or, When Does Safety Become Siege?

We gathered yesterday, Gentle Reader, for a discussion of the constitutionality of highway sobriety checkpoints.

In yesterday’s episode we learned that the Fourth Amendment, according to the Supreme Court, can be ignored if the challenges of enforcing the law seem too burdensome for the Government...and we learned that despite a history stretching all the way back to the 1700s and the British case Entick v. Carrington, the Court was, for the first time, willing to allow general search warrants on American soil.

Today we take the history a bit further...and then we talk about what happens when freedom is given away...and sadly, we need look no further than a few miles from the Capitol Building, in Washington DC itself, to see exactly what happens when freedom is suddenly gone and a community is placed under siege by the police—all, we suppose, for the community’s own good.

We have a lot of ground to cover, so we best get out on the proverbial road—and let’s see if we can avoid our own roadblocks along the way.

In yesterday’s conversation we described how the Supreme Court, in United States v. Martinez-Fuerte, 428 U.S. 543, had authorized the use of an “area search warrant” (a form of general search warrant) to authorize the stopping and searching of all vehicles passing the Customs and Border Protection immigration checkpoint at San Clemente, California.

This occurred despite the fact that there was no “probable cause”, as required by the Fourth Amendment, before any of the vehicles were searched—and despite the precedent of a recent similar case, United States v. Ortiz, 422 U.S. 891, in which the Court stated:

The Fourth Amendment [is] held to forbid Border Patrol officers, in the absence of consent or probable cause, to search private vehicles at traffic checkpoints removed from the border and its functional equivalents, and for this purpose there is no difference between a checkpoint and a roving patrol.

The Government had argued that it was impractical to find probable cause before conducting this type of search; therefore they were justified in ignoring the Fourth Amendment and establishing this checkpoint.

The Court agreed, and justified this conclusion by deciding that the searches were not “unreasonable”, and therefore a warrant was not required. Justices Brennan and Marshall, in dissent, reminded the majority that the inconvenience of the Government was no excuse for ignoring the clear language of the Constitution.

"Tyrant! You are a tyrant!"

--Washington State Supreme Court Justice Richard Sanders, to Attorney General Richard Mukasey, November 20, 2008

But that’s the old business.
Now it’s time to fast forward to Michigan, and a 1990 case, Michigan Department of State Police v. Sitz, 496 U.S. 444.

In 1986, Saginaw County, Michigan decided to set up a sobriety checkpoint in their County, and they had the advice of a State-level Sobriety Checkpoint Committee to assist them in planning an operation that would (hopefully) pass legal muster.

The day before the checkpoint went into operation, a lawsuit was filed seeking to shut the program down, and that lawsuit was successful. (The checkpoint did operate on one occasion, however, and we’ll discuss that evening in a moment.) On appeal, the suit was again upheld, and it was upheld again by the Michigan State Supreme Court.

Each Court agreed that the controlling authority for the decision was the ruling in Brown v. Texas, 443 U.S. 47, which said that in order to justify an intrusion by Government upon an individual’s privacy, the Government’s action had to pass a “three-prong test”.

In this instance the test required balancing the State’s interest in preventing these accidents, how effective sobriety checkpoints are in reducing the accidents, and how intrusive the checkpoints are upon the citizens.

The Michigan Courts held that the checkpoints were ineffective—and critical to that finding were the results of the one night the checkpoint did operate. Of the 142 cars stopped in the checkpoint’s 75 minutes of operation, only two drivers were cited for DUI.

(As a comparison, the Washington State Patrol was able to reduce traffic deaths 13%, in one year, by increasing enforcement on the highways. Checkpoints are not allowed in the State.)

Beyond that, it was further ruled that the stops were “subjectively” too intrusive to be justified under the Fourth and Fourteenth Amendments to the US Constitution.

The US Supreme Court agreed to hear the case—and they did not agree with the Michigan Supreme Court’s thinking.

The Majority Opinion notes that the average motorist stop was 25 seconds, which they felt was a minimal degree of “objective” intrusion (an opinion shared by the State Court)...but they found no substantial “subjective” intrusion.

This is because, in their opinion, the average motorist should have no “fear or surprise” regarding a checkpoint. An examination of the ruling shows no recognition of any other factor as contributing to a subjective intrusion, including motorist annoyance or resentment.

Further, the Majority felt that stopping the 98.5% of the innocent motorists to catch the other 1.5% was, in fact, effective in ”advancing the public interest” in stopping drunk drivers (the controlling language from Brown v. Texas).

The case was remanded back to the Michigan State Supreme Court so that they might reconsider...and for the rest of the Nation, sobriety checkpoints had the Supreme Court’s seal of approval.

Ironically, in Michigan checkpoints are not allowed to this very day. The State Supreme Court, upon further review (as the referees like to say...), found that the checkpoint program violated the State Constitution’s search and seizure provisions; and does not permit them within the State.

There are other States that bar the checkpoints for similar reasons—we’ve mentioned Washington and Michigan; Louisiana (sort of) and Texas (for the moment) are others.

So that’s the history.
Now let’s talk about what’s happened since then.

“...for there is nothing as short sighted as a Politician unless it is a delegation of them.”

--Will Rogers, “Letters of a Self-Made Diplomat to His President”

What began as a tool to identify drinking drivers—and what was supposed to have no other purpose—has developed into a multi-purpose enforcement dragnet...exactly as Justices Brennan and Marshall predicted it would in Martinez-Fuerte.

In addition to sobriety checkpoints, we now have “seatbelt” checkpoints, proposed driver’s license checkpoints in Texas that apparently are actually intended to identify illegal immigrants...and, in an interesting new twist, we have checkpoints that exist to gather information about crimes that were recently committed at a location. The argument is that questioning everyone who passes by a location is not a stop or a search—even though the police are stopping people and...well, searching them.

Let’s stop for a quick “Checkpoint Bonus”.

If you would like to see exactly what happens when an individual refuses to cooperate with a CBP agent at an immigration checkpoint, have a look at this fascinating video, where the driver refuses to answer any questions...and in return, the CBP agent tries to avoid answering the questions “am I being detained?” and “am I free to go?”...and as it turns out, Terry Bressi’s lawsuit seeking to stop checkpoints had a hearing November 20th before the Ninth Circuit Court of Appeals.

And with that, let’s return to how checkpoints are used today.

Surprise!

The enforcement seems to be often directed at minority and poor communities...and the vast majority of arrests at the “sobriety checkpoints”, in many locales, are non-DUI/DWI related...and for some agencies, the goal seems to be the seizure of property rather than the original goal of stopping drunk driving.

According to some of the comments I received after Part One of this story was posted, being the guy with a Grateful Dead sticker on your car might be enough to guarantee you “special treatment”, regularly, no matter if you appear drunk or not. (Sound familiar to anyone?)

Which brings us to Pomona, California.

In Pomona, there is a strong perception that the Police’s traffic checkpoints target illegal immigrants and low-income Blacks and Hispanics.

The local newspaper, the Inland Valley Daily Bulletin, agrees, pointing out that 90% of the City’s checkpoint operations occur in low-income South Pomona...and, according to the paper, 99% of vehicles seized at the checkpoints are from drivers who were not charged with DUI.

Checkpoints may also have unintended side effects.

The paper points out that Pomona Police only solve 44% of their murder cases...while the State average is closer to 70%. It is suggested the hostile feelings between the community and the Police, caused by the checkpoints, are at the heart of this problem.

The checkpoints in Pomona, the paper reports, have involved as many as 70 officers, and at least one involved the “cordoning off” of a local market, presumably in an effort to snare a large group of shoppers. The paper wonders if criminals are taking advantage of this concentrated Police presence to strike in other parts of the City during the checkpoint operations.

In an effort to “start a dialog” with the community, several off-duty Pomona officers attended a community meeting regarding the checkpoints...and despite what the Supreme Court might think, apparently the “subjective” impact of the checkpoints was strong enough that the on-duty Police had to be called to extricate the off-duty Police from the meeting, according to attendees writing for the “Americans for Legal Immigration” Political Action Committee’s blog.

Similar complaints are being heard in the San Diego area as well.

Our next stop on the “Checkpoints Gone Wild Tour”: Illinois.

In order to “secure” an apartment complex in Rolling Meadows, the local police decided to set up a checkpoint on one of the complex’s 13 entrances—and then they blocked off all access to the other 12.

The checkpoint has been staffed every day from Noon to 8PM.

The 2,000 residents are thus required to submit to police scrutiny each and every time they wish to enter or leave their own homes and go anywhere in a car beyond the parking lot during those hours. (We are surprised, frankly, that the police only operate during those hours; we always thought that a lot of crime takes place at night....but what do we know?)

In Washington, Illinois, the local police closed off an entire neighborhood, demanded ID that proves drivers reside in the area, and did not allow outsiders to enter without what they consider to be a “legitimate reason” to be in the area, according to the local chapter of the ACLU.

In an effort to bring this sort of law enforcement to every State, the Federal Government, in the form of the National Highway Traffic Safety Administration, is now pushing the remaining States that don’t allow checkpoints to...reconsider...something the Governor of my own State, Washington, is trying to make happen...even though the State Supreme Court has already ruled the practice violates the State Constitution.

And finally, as promised, a quick visit to Washington, DC...theoretically, the world’s “Freedom Captiol”.

The City has successfully defended, before a US District Judge, a program that seals off the Trinidad neighborhood after a series of shootings. The Police are also turning away those they feel should not be in the area, and that was the source of the complaint. The ACLU’s reaction:

"My reaction is, welcome to Baghdad, D.C.," said Arthur Spitzer, legal director for the ACLU's Washington office. "I mean, this is craziness. In this country, you don't have to show identification or explain to the police why you want to travel down a public street."

And that, very neatly, describes the problem of checkpoints.

What began as a rare and unusual—and frankly, poorly justified—exception to the Fourth Amendment has morphed into a legal principle that allows law enforcement to choose to seal off entire communities, if they wish, to target populations based on no “particularized suspicion” (which often seems to be a low-income or minority population), to develop ever more creative and tortuous justifications for the targeting—and to do all of this because of our fear of crime, which has apparently overridden our trust in freedom...and because of our unwillingness to tackle the root causes of the problems that checkpoints can never really solve.

On Traffic Checkpoints, Part One, Or, Freedom? That's So...Inefficient

The holidays are in full swing…or at least they are in the US…which means your days—and nights—are full of running around like crazy. There’s a million things to do, a thousand errands to run, and…are you kidding me?!

A police sobriety roadblock?
Now?

That’s right: there’s a crowd of officers all around you, there’s no way to avoid it…and even though you’ve committed no crime whatsoever, you get to talk to the police…and if they decide it’s acceptable, you may continue on your way.

How can this be legal in America?
Does it actually serve any purpose?
And what happens when the police decide to blockade your neighborhood--for your own good?

Believe it or not, it’s my job today and tomorrow to answer those questions…and beyond that, to defend the simple right of Americans to go somewhere if we feel like it, without having to explain it to the police…and in today’s discussion, I intend to set the stage through an examination of history.

Sobriety checkpoints are an effective law enforcement tool involving the stopping of vehicles or a specific sequence of vehicles, at a predetermined fixed location, to accomplish two goals: raise the public’s perception of being arrested for driving while impaired (DWI ), and detection of drivers impaired by alcohol and/or other drugs.

--National Highway Traffic Safety Administration, “Low-Staffing Sobriety Checkpoints”

The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.

--The Fourth Amendment to the Constitution of the United States

So, you might ask, how is it that the Fourth Amendment is interpreted to allow searches that are not based upon any probable cause whatever—in fact, that aren’t directed toward any particular individual, but instead, against anyone and everyone that can be processed through a location?

Oddly enough, this whole story, you could say, starts at Customs and Border Protection’s (CBP) San Clemente Station, an immigration checkpoint located roughly 60 miles north of the Mexican Border near San Diego, California (and the home of the famous “running family” traffic signs), where all northbound traffic on the Interstate 5 Freeway is required to stop for an inspection by CBP officers.

If an officer chooses, he can order any vehicle, for any reason, or for none at all, to pull over for a “Secondary Inspection”. That inspection can lead to a search of the vehicle, and possibly the arrest of its occupants.

A Mr. Amado Martinez-Fuerte was arrested at the checkpoint, after such an inspection, for illegally transporting aliens (the two passengers in his car), and when he got to trial his attorney moved to suppress all evidence based on a Fourth Amendment claim, specifically that absent any particular probable cause, the stop and search of his vehicle were illegal. That claim was denied at trial, but upheld upon appeal to the Ninth Circuit Court of Appeals.

His claim and a case with similar context but a differing result from the Fifth Circuit were eventually consolidated and reconciled by the United States Supreme Court in 1976 in United States v. Martinez-Fuerte, 428 U.S. 543.

"The scheme of the Fourth Amendment becomes meaningful only when it is assured that at some point the conduct of those charged with enforcing the laws can be subjected to the more detached, neutral scrutiny of a judge who must evaluate the reasonableness of a particular search or seizure in light of the particular circumstances.

And in making that assessment it is imperative that the facts be judged against an objective standard . . . . Anything less would invite intrusions upon constitutionally guaranteed rights based on nothing more substantial than inarticulate hunches, a result this Court has consistently refused to sanction…

… This demand for specificity in the information upon which police action is predicated is the central teaching of this Court's Fourth Amendment jurisprudence. "

--Terry v. Ohio, 392 U.S., at 21-22

The Fourth Amendment [is] held to forbid Border Patrol officers, in the absence of consent or probable cause, to search private vehicles at traffic checkpoints removed from the border and its functional equivalents, and for this purpose there is no difference between a checkpoint and a roving patrol.

--United States v. Ortiz, 422 U.S. 891

And with those inspiring words to guide them, the Court’s majority decided to completely ignore the text of the Fourth Amendment and established precedent and uphold the right of Government agents to search you, even if you’re not suspected of anything at all (and in fact, upholding the “inarticulate hunch” standard)…because the Court felt it was really inconvenient to have to have a reason to search people:

To require that such stops always be based on reasonable suspicion would be impractical because the flow of traffic tends to be too heavy to allow the particularized study of a given car necessary to identify it as a possible carrier of illegal aliens. Such a requirement also would largely eliminate any deterrent to the conduct of well-disguised smuggling operations, even though smugglers are known to use these highways regularly.

In order to justify this line of thought, the majority adopted a line of logic that suggested that the Government had an overriding need to stop the smuggling of aliens, that this is an effective way to prevent the smuggling of aliens…and that you would find the fact that you have to be stopped and searched as you go about your day—even though you’ve done nothing wrong—so minimal of an intrusion that a warrant would be unnecessary. From the majority opinion:

While the need to make routine checkpoint stops is great, the consequent intrusion on Fourth Amendment interests is quite limited. The stop does intrude to a limited extent on motorists' right to "free passage without [428 U.S. 543, 558] interruption," Carroll v. United States, 267 U.S. 132, 154 (1925), and arguably on their right to personal security. But it involves only a brief detention of travelers during which

"`[a]ll that is required of the vehicle's occupants is a response to a brief question or two and possibly the production of a document evidencing a right to be in the United States.'" United States v. Brignoni-Ponce, supra, at 880.

Strangely enough, what the majority finds concerning is that citizens might object to being stopped and searched because the people running the operation might be some sort of fake police—not the fact that we’re being stopped and questioned in the first place:

"[T]he circumstances surrounding a checkpoint stop and search are far less intrusive than those attending a roving-patrol stop. Roving patrols often operate at night on seldom-traveled roads, and their approach may frighten motorists. At traffic checkpoints the motorist can see that other vehicles are being stopped, he can see visible signs of the officers' authority, and he is much less likely to be frightened or annoyed by the intrusion." 422 U.S., at 894-895…

… The regularized manner in which established checkpoints are operated is visible evidence, reassuring to law-abiding motorists, that the stops are duly authorized and believed to serve the public interest….”

Beyond that, the majority felt that there is a justification for certain forms of “general search warrants”, based on a prior building inspection case (Camara v. Municipal Court, 387 U.S. 523)…meaning that a magistrate can legally issue an “area warrant” permitting the search of any vehicle passing a particular place.

Is this “checkpoint search” technique effective?

According to the record in the case, only 1 in 1,000 vehicles stopped and questioned at the checkpoint contained any deportable aliens, and more than ¾ of the vehicles stopped for Secondary Inspection were in fact unconnected with any smuggling activity.

My guess is that the police could simply choose vehicles that contain Mexican-looking drivers randomly and achieve similar results—and that guess is based on the fact that, at the checkpoint, that’s basically what they do, as the record reveals.

We are going to wrap this up in a minute, but I want to offer a few salient quotes from the dissent in this case:

Today's decision is the ninth this Term marking the continuing evisceration of Fourth Amendment protections against unreasonable searches and seizures… the Court's decision today virtually empties the Amendment of its reasonableness requirement by holding that law enforcement officials manning fixed checkpoint stations who make standardless seizures of persons do not violate the Amendment. This holding cannot be squared with this Court's recent decisions in United States v. Ortiz…

…This defacement of Fourth Amendment protections is arrived at by a balancing process that overwhelms the individual's protection against unwarranted official intrusion by a governmental interest said to justify the search and seizure. But that method is only a convenient cover for condoning arbitrary official conduct…

…The motorist whose conduct has been nothing but innocent - and this is overwhelmingly the case - surely resents his own detention and inspection. And checkpoints, unlike roving stops, detain thousands of motorists, a dragnetlike procedure offensive to the sensibilities of free citizens. Also, the delay occasioned by stopping hundreds of vehicles on a busy highway is particularly irritating…

… Every American citizen of Mexican ancestry and every Mexican alien lawfully in this country must know after today's decision that he travels the fixed checkpoint highways at the risk of being subjected not only to a stop, but also to detention and interrogation, both prolonged and to an extent far more than for non-Mexican appearing motorists…

… Finally, the Court's argument fails for more basic reasons. There is no principle in the jurisprudence of fundamental rights which permits constitutional limitations to be dispensed with merely because they cannot be conveniently satisfied.”

So that’s today’s Part One: the sobriety checkpoint that has you ensnared and irritated—again—is only Constitutional because our Government feels that when it comes to catching criminals it’s just too big a pain to follow the rules we set out for them…and all of this is based on an immigration control checkpoint ruling.

When we return, we’ll examine another ruling, Michigan Department of State Police v. Sitz (496 U.S. 444), which specifically authorized sobriety checkpoints…then we’ll see how checkpoints have morphed into something that, at its worst, allows authorities to literally lay siege to a neighborhood, as is happening even today in the Nation’s Capitol…and, finally, we’ll examine the efforts by the Federal Government to spread checkpoints to the states that today ban them.

On The Weird Twists Of History, Part Two, Or, Why We Have A Fourth Amendment

Those who are coming to this story today have jumped into the middle of quite a tale. I put myself in a tough position last time by promising to link a British “garden of lust”, Benjamin Franklin, and 18th Century bloggers into a narrative that concludes with the nascent United States of America and its shiny new Fourth Amendment.

So far, amazingly enough, I’m pulling it off.
If you need to catch up, here’s what’s been going on:

When last we met...it was in a world of scandal and intrigue; with King George III and the Earl of Bute (and of course, their assorted minions) very upset with John Entick, author, and John Wilkes, author and world-class raconteur (and drinking buddy to Franklin), because they had the temerity to...well, blog.

The Earl of Bute had taken so much abuse from the Johns that he had been forced to resign from his position as Prime Minister...leaving the minions under his control, many said, only now from behind the scenes.

Something needed to be done...and when you have minions, you put them to use.

In 1762, as the influence of “The Monitor” continued to grow, George Montague Dunk, the Second Earl of Halifax (and a member of the Privy Council) and the highest ranking minion available, issued the King’s Chief Messenger, Nathan Carrington, a general search warrant ordering him to:

“...make strict and diligent search for [Entick], mentioned in the said warrant to be the author, or one concerned in the writing of several weekly very seditious papers intitled, "The Monitor or British Freeholder, No 357, 358, 360, 373, 376, 378, and 380, London, printed to J. Wilson and J. Fell in Paternoster Row," containing gross and scandalous reflections and invectives upon his majesty’s government, and upon both Houses of Parliament, and him the plaintiff having found, to seize and apprehend and bring together with his books and papers in safe custody before the earl of Halifax to be examined concerning the premisses, and further dealt with according to law...”

--From the report of Entick v. Carrington, 19 Howell’s State Trials 1030 (1765)

A four hour search was conducted of Entick’s home, and all his books and papers were carried away to be examined in an effort to prove that the charges of seditious libel (essentially, speaking out against the King) were valid.

In what has become one of the most important trials in British legal history—and ours—John Entick sued the messenger, literally, claiming that any general search warrant is inherently invalid, that Carrington should have known this, and that Carrington never should have relied upon the authority of Lord Halifax to permit the search.

If Entick had been trespassed upon, then the papers seized were inadmissible; and that meant Entick could not be convicted of seditious libel. Here’s how Entick’s lawyer put it, again according to Howell’s:

“...As to the second. A power to issue such a [general] warrant as this is contrary to the genius of the law of England; and even if they had found what they searched for, they could not have justified under it. But they did not find what they searched for, nor does it appear that the plaintiff was the author of any of the supposed seditious papers mentioned in the warrant; so that it now appears that this enormous trespass and violent proceeding has been done upon mere surmise.

But the verdict says, such warrants have been granted by secretaries of state ever since the Revolution. If they have, it is high time to put an end to them; for if they are held to be legal, the liberty of this country is at an end. It is the publishing of a libel which is the crime, and not the having of it locked up in a private drawer in a man’s study. But if having it in one’s custody was the crime, no power can lawfully break into a man’s house and study to search for evidence against him. This would be worse than the Spanish inquisition; for ransacking a man’s secret drawers and boxes, to come at evidence against him, is like racking his body to come at his secret thoughts...

... But it is said, if the secretary of state has power to commit, he has power to search, etc. as in the case of stolen goods. This is a false consequence, and it might as well be said he has a power to torture.”

We need to take a moment to discuss the meaning of a general warrant—and all of a sudden we get to the part where our very own Fourth Amendment enters the story. Rather than tackling the legal issue myself, I’ll quote from the United States Supreme Court’s ruling in Stanford v. Texas, 379 U.S. 476 (1965), a seized books case:

“...The petitioner has attacked the constitutional validity of this search and seizure upon several grounds. We rest our decision upon just one, without pausing to assess the substantiality of the others. For we think it is clear that this warrant was of a kind which it was the purpose of the Fourth Amendment to forbid - a general warrant...

The Fourth Amendment provides that "no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized."

These words are precise and clear. They reflect the determination of those who wrote the Bill of Rights that the people of this new Nation should forever "be secure in their persons, houses, papers, and effects" from intrusion and seizure by officers acting under the unbridled authority of a general warrant. Vivid in the memory of the newly independent Americans were those general warrants known as writs of assistance under which officers of the Crown had so bedeviled the colonists.

The hated writs of assistance had given customs officials blanket authority to search where they pleased for goods imported in violation of the British tax laws. They were denounced by James Otis as "the worst instrument of arbitrary power, the most destructive of English liberty, and the fundamental principles of law, that ever was found in an English law book," because they placed "the liberty of every man in the hands of every petty officer."

The historic occasion of that denunciation, in 1761 at Boston, has been characterized as "perhaps the most prominent event which inaugurated the resistance of the colonies to the oppressions of the mother country. `Then and there,' said John Adams, `then and there was the first scene of the first act of opposition to the arbitrary claims of Great Britain. Then and there the child Independence was born.'"

What is significant to note is that this history is largely a history of conflict between the Crown and the press. It was in enforcing the laws licensing the publication of literature and, later, in prosecutions for seditious libel that general warrants were systematically used in the sixteenth, seventeenth, and eighteenth centuries. In Tudor England officers of the Crown were given roving commissions to search where they pleased in order to suppress and destroy the literature of dissent, both Catholic and Puritan. In later years warrants were sometimes more specific in content, but they typically authorized the arrest and search of the premises of all persons connected with the publication of a particular libel, or...the arrest and seizure of all the papers of a named person thought to be connected with a libel

Two centuries have passed since the historic decision in Entick v. Carrington, almost to the very day. The world has greatly changed, and the voice of nonconformity now sometimes speaks a tongue which Lord Camden might find hard to understand. But the Fourth and Fourteenth Amendments guarantee to John Stanford that no official of the State shall ransack his home and seize his books and papers under the unbridled authority of a general warrant - no less than the law 200 years ago shielded John Entick from the messengers of the King.”

And in fact Carrington did lose the lawsuit to Entick. This, from the ruling in Entick v Carrington, 95 Eng. Rep. 807 K.B. (1765):

“...our law holds the property of every man so sacred, that no man can set his foot upon his neighbour's close without his leave; if he does he is a trespasser, though he does no damage at all; if he will tread upon his neighbour's ground, he must justify it by law. The defendants have no right to avail themselves of the usage of these warrants since the [Glorious] Revolution [of 1688], and if that would have justified them they have not averred it in their plea, so it could not be put, nor was in issue at the trial; we can safely say there is no law in this country to justify the defendants in what they have done; if there was, it would destroy all the comforts of society; for papers are often the dearest property a man can have...

... The great end, for which men entered into society, was to secure their property. That right is preserved sacred and incommunicable in all instances, where it has not been taken away or abridged by some public law for the good of the whole...By the laws of England, every invasion of private property, be it ever so minute, is a trespass. No man can set his foot upon my ground without my license, but he is liable to an action, though the damage be nothing; which is proved by every declaration in trespass, where the defendant is called upon to answer for bruising the grass and even treading upon the soil. If he admits the fact, he is bound to show by way of justification, that some positive law has empowered or excused him....”

So Entick won.
But what about Wilkes?

Well, the “triple headed, Cerebrean” Government Wilkes referenced in “The North Briton” No. 45 prosecuted him for seditious libel as well, using another general search warrant to effect the seizure of evidence.

Wilkes was able to prevail at trial by invoking his Parliamentary immunity from arrest on libel charges. Quoting Wilkes, describing the still-upcoming trial:

[The case will] "teach ministers of arbitrary principles, that the liberty of an English subject is not to be sported away with impunity, in this cruel and despotic manner...[and also] "determine at once whether English liberty be a reality or a shadow."

Then Wilkes returned the favor—figuratively “suing the messenger” in the second of our illegal warrant blockbusters, Wilkes v. Wood, 98 Eng. Rep. 489 (1763)
.
In fact, he’s the one who sued first...and based on the events of his trial, Entick filed the lawsuit against Carrington that we just discussed. A few words from the report of the trial:

“...Serjeant Glynn [defense counsel], then enlarged fully, on the particular circumstances of the case, but remarked that the case extended far beyond Mr. Wilkes personally, that it touched the liberty of every subject of this country, and if found to be legal, would shake that most precious inheritance of Englishmen. In vain has our house been declared, by the law, our asylum and defence, if it is capable of being entered, upon any frivolous or no pretence at all, by a Secretary of State...

That of all offences that of a seizure of papers was the least capable of reparation; that, for other offences, an acknowledgement might make amends; but that for the promulgation of our most private concerns, affairs of the most secret personal nature, no reparation whatsoever could be made. That the law never admits of a general search-warrant. That in France, or Spain, even in the Inquisition itself, they never delegate all infinite power to search, and that no magistrate is capable of delegating any such power...”

And a few words from the Lord Chief Justice in his verdict:

“...When we consider the persons concerned in this affair, it ceases to be an outrage to Mr. Wilkes personally, it is an outrage to the constitution itself...

Secretary Williamson, in Charles the Second’s time, for backing an illegal warrant, was sent to the Tower by the House of Commons. The jury, he observed, had no such power to commit; he knew it well; but, for his part, he wished they had, as he was persuaded they would exercise it, in the present case, as it ought to be...”

The Government response to their defeat?
To prosecute Wilkes for a very, very naughty joke indeed.

It turns out that back in the crazy Monks of Medmenham days Wilkes...apparently...co-authored an exceptionally ribald book called “An Essay on Woman”, a parody of Alexander Pope’s “Essay on Man”...and here was a chance to strike back at Wilkes...if only the annoying immunity thing wasn’t in the way.

So he was promptly thrown out of Parliament, and then charged with blasphemous libel. He immediately fled the country, spending four years in exile.

Now here’s the good part: Wilkes decided to return, because, despite his outlaw status, he had been elected to Parliament (again) in April 1768. He was the subject of riots in the nights following his surrender; and it is reported that 11 persons were killed as a result of the public outcry over his imprisonment. (Matter of fact, it’s also reported that the anger over the issues surrounding Wilkes’ arrest was so profound that it reached across the Atlantic...so profound that the cities of Wilkes-Barre, Pa., and Wilkesboro, N.C. bear his name.)

A political party, the Wilkites, had sprung up...and so had the Government’s anger over Wilkes’ status, which led to his second expulsion from Parliament, on February 3, 1769. On February 16th, he was reelected—and expelled the next day. Exactly one month later...the voters did it again—and so did Parliament.

The score so far?
The British Parliament, 3; The British Voters, 0.

Round four again went to Wilkes, again temporarily—this time by a vote of 1,143 to 296.

In a move reminiscent of the 2000 US Presidential election, Parliament promptly awarded the seat to Wilkes’ opponent, Colonel Henry Lawes Luttrell.

All the while he was still in prison...and while still in prison he was elected an Alderman of London...then he was released...then, ironically, elected Sheriff...then, in 1774, in a move Ken Livingstone could surely appreciate, he was elected Lord Mayor of London—and then finally (fifth time’s the charm!) he was returned to Parliament....and this time they let him stay, which he did for another 16 years.

So remember, roughly 3500 words ago, when I said in Part One that I could draw a direct line between all of this and the FISA debate today and its impact on the Fourth Amendment?

Well, I’m not going to do it.
Instead, I’ll again let the United States Supreme Court address the question, which they do with great eloquence in Stanford v Texas:

"...As MR. JUSTICE DOUGLAS has put it, "The commands of our First Amendment...(as well as the prohibitions of the Fourth and the Fifth) reflect the teachings of Entick v. Carrington, supra. These three amendments are indeed closely related, safeguarding not only privacy and protection against self-incrimination but `conscience and human dignity and freedom of expression as well...

In short, what this history indispensably teaches is that the constitutional requirement that warrants must particularly describe the "things to be seized" is to be accorded the most scrupulous exactitude when the "things" are books, and the basis for their seizure is the ideas which they contain...No less a standard could be faithful to First Amendment freedoms.

The constitutional impossibility of leaving the protection of those freedoms to the whim of the officers charged with executing the warrant is dramatically underscored by what the officers saw fit to seize under the warrant in this case...”

And that’s the crux of the argument over the FISA compromise.

Should the protection of freedom from warrantless wiretapping “be accorded the most scrupulous exactitude when the "things" are”...not books, but communications?

When we see how wide a net the warrantless wiretapping program cast, does it teach us a lesson about the “constitutional impossibility of leaving the protection of those freedoms to the whim of the officers charged with executing the warrant”?

And of course, when the Fourth Amendment is endangered, can the First or the Fifth be safe?

Well, it’s been a long journey, Gentle Reader...but we are at the end.

We began this trip in a garden of lust...then we met two 18th Century bloggers...we found ourselves caught up in the struggle over general warrants (which sound mighty familiar in the “warrantless wiretap” context)...and then two extremely important trials...and then the connection between the names of some of our cities and Wilkes...and finally, as I promised, we drew a straight line between the distrust of an overly intrusive Government and our own demands for freedom...which are today again under attack.

The circle has been closed, and with that, I bid you good day.