Wednesday, July 4, 2018

Liberty and the courts.

We have a Constitution that does a pretty good job of establishing liberty as the summum bonum of American life. It’s really not a hard call for any normal person, whether judge or not, to say that the state is overreaching.

Are asset forfeitures justified when based on the cops’ sole judgment that a bunch of money in your possession cannot possibly be for an innocent and lawful purpose? And therefore can be confiscated and withheld from you unless you want to spend an enormous amount of money to contest the seizure in court?

Does an “inventory search” strike you as a pretext to search your car without a warrant? That’s where you get arrested and the cops search your car down at the police impound lot to “help” you out by “inventorying” its contents. Is there an option for the arrestee to say, “Thanks just the same”? Of course, not. The cops want to search your car and the courts say, “What fairy tale?”

Same for searches “incident to arrest.” The sensible criterion is that the cops can search your person and areas within your reach where you might destroy evidence or obtain the means to effect your escape. That standard allows cops to have you spread-eagled on the hood of your car in handcuffs but still have a court-approved authority to search the glove compartment inside your car.

What’s at work here is officer convenience and avoidance of the warrant requirement and the courts eat it up with a spoon.

Go to court and only a moron will think that the guy or gal on the bench has any kind of sensitivity on the question of arbitrary deprivation of liberty.

Rarely do the concerns of the populace prevail.

When presented with an opportunity to loosen the government’s noose that keeps getting cinched tighter and tighter around the necks of the American people, what does our current Supreme Court usually do?

It ducks.


Remains silent.

Speaks to the narrowest possible concern.[1]

This is exactly right. I’ve been a public defender in an earlier life but have no visceral distrust of cops and prosecutors. The ones I’ve met have been ethical and reasonable people and only once did I see what I thought was an unwarranted effort to nail some guy. The foundation of the case was just a bit on the iffy side I thought but it was an exception to otherwise admirable conduct. I have no time for people who think cops are dumb or unethical. Anyone makes mistakes and better leadership would solve a lot of problems. Eighty-five percent of the time when I’m stopped on the highway, I am not cited though I know one time in 1969 the cops saw my uniforms in the back seat and waved me on on principle.

That said, if the courts, the neutral arbiters of official and citizen interests, are equivocal about liberty then the only sound you’ll hear is the clink of the ratchet as the legal apparatus tightens down yet one more notch.

There’s a great line from the movie “Zorba the Greek” where Zorba says to the cerebral Englishman, “Clever people are like grocers. They weigh everything.” But down in the weeds where real people live, we want to see that our courts have some juice, some fire in them where liberty is threatened.

Is that fire in the Supreme Court? Clearly not. When the Court ceased to enforce the Interstate Commerce Clause in the 1930s, as Judge Bork observed, that travesty of legal gutlessness has remained all but sacrosanct in every court and every bar association in the land. A massive, a gigantic, a stupefying upending of the constitutional scheme and nobody breaks sweat. “Hate speech” laws? Holocaust denial laws? NSA warrantless data collection? Ooh! Ooh! Let’s stroke our chins. Maybe we will and maybe we won’t come down on the side of liberty.

[1] "The Constitution Is Not Neutral: Courts of Justice Should Not Act Like Courts of Order." By John Whitehead, The Burning Platform, 7/3/18.

Edit: slightly for clarity and spelling.

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