2012: Four cheers for liberty

The year 2012 isn’t even halfway over, and already, among all of the civilian-killing drone strikes abroad and bills in Congress intended to gang-rape the Constitution, there have been at least a few people who have decided to bite back, and in doing so, have made great strides in defending the freedom of the people. They have blocked free-speech-stifling cybersecurity measures, punched the teeth out of gluttonous public unions, and told the legislative and executive branches to sit down, shut up, and read the Constitution. They are:

The people of the Internet

Since November 16, 2011 when news of two putative cybersecurity bills called SOPA and PIPA, bills that would permit the government to take down entire websites for single instances of copyright law violations, leaked out, the Internet took action. Senator Ron Wyden (D – OR) vigorously campaigned against the bill both on-and-offline, the owners of prominent websites such as Google, Yahoo, and Wikipedia countered the support of companies like Netflix for the bill with anti-SOPA campaigns, and millions of Internet users all across America protested and called their Congressmen until both bills were taken off the discussion table.

It was heartening to see the American people joining together in defense of their freedom, and although the “cybersecurity” advocates in Congress will continue their onslaught against Internet freedom with bills like CISPA, the Internet will continue to fight against them.

The Supreme Court

In 2004, the FBI tracked a man named Antoine Jones for 4 weeks via a GPS device planted under his car under suspicion that he was committing narcotics violations. The government obtained no warrant for the search, in clear violation of the Fourth Amendment’s warrant requirement for such searches, and when Jones was arrested, he moved to suppress the evidence obtained under that search as pursuant to his Fourth Amendment rights.

Jones’s case went to the Supreme Court, and on January 23, 2012, the court unanimously ruled against the warrantless search of private vehicles. The government has, in past years, been trying to get its slippery hands around the 4th Amendment’s warrant requirement for searches, and with the US v. Jones ruling, combined with the earlier rulings of Bond v. United States (2000) and Kyllo v. United States (2001), it seems that this Supreme Court is very much in favor of protecting the 4th Amendment.

Governor Scott Walker (R-WI) and the people of Wisconsin

Public sector unions are a menace to the American people. They spend exorbitant amounts of money on increasing the wages of their members without having them work for it (public union members have a 31% advantage in wages over non-union members), and they campaign to elect politicians who will increase their funding, since they work for the government (they spend upwards of $165 million on campaign funding). All of that money comes from the taxpayer, and since these workers are receiving raises for free, the taxpayer receives no benefit whatsoever.

However, when Governor Scott Walker of Wisconsin attempted to remedy this situation by pushing a bill to strip public unions of their power to collectively bargain for more money, he was met by fierce opposition. The unions themselves, predictably, would not let their free money be taken away from them without a fight, and many ordinary voters took their side as well.

An election to recall Walker was held, but the unions lost out on this one. Governor Walker is there to stay in Wisconsin, and with public unions stripped of much of their power, public education will surely increase in quality there, as teachers will now have to actually teach better in order to get wages (those teachers must be fuming in their indignation). This may very well have a ripple effect in other states, and I can only hope that these money-burning unions will grow weaker and weaker as other states will take the same measures that Walker did.


Judge Katherine Forrest

On December 31, 2011, President Obama signed the National Defense Authorization Act for the year 2012 (NDAA), which contained a provision authorizing the indefinite military detention of any person, American citizen or not, who is suspected of being a terrorist. If you’re familiar with what happens when governments are given more and more unrestrained power (Adolf Hitler and Joseph Stalin are great examples), then you were probably scared of what havoc the government could wreak with this law in place.

Fortunately, NDAA was given a satisfying kick in the crotch by District Judge Katherine Forrest, who declared the indefinite detention clauses of the act to be unconstitutional under the 4th and 5th Amendments. By filing an injunction against the act, Forrest has nullified it, and when the Obama administration claimed that it will apply the ruling only to the kinds of journalists who started the case (the same Obama administration that claimed to oppose indefinite detention), Judge Forrest announced that the ruling applies broadly, to all American citizens.

Is the NDAA case over? Certainly not. The Obama administration will certainly cling to the opportunity for draconian powers as long as it can, so expect the NDAA case to end up in the Supreme Court soon (which, I’m sure, will uphold Forrest’s ruling), but this ruling was a great first step and a stellar defense of the 4th and 5th Amendments to the Constitution.

The forecast for liberty

The fight for liberty will likely always be a rocky one, and it will certainly be rocky this year, as governments tend to favor maximizing their own power, but liberty will always have allies so long as people like Wyden, Forrest, Walker, and the Supreme Court are there to support it. The only thing better than a number of committed freedom-fighters in government, however, is an informed public that is equally willing to defend the rights of the people. Any citizen is instrumental to protecting the rights of all the people, and as the price of liberty is eternal vigilance, our rights will be immeasurably safer if we have 313 million people watching.

(sources on public unions from the CATO Institute. Link: http://www.cato.org/pubs/tbb/tbb_61.pdf)

Screw the Constitution, I am the Decider

“The Constitution means whatever we want it to.”

This sums up, in 7 words, the “living Constitution” method of Constitution “interpretation” that many judges so dearly believe in. A few weeks ago, judges Stephen Reinhardt, Michael Hawkins, and N. Randy Smith took this to heart as they declared Proposition 8, the anti-gay-marriage law in California, to be a violation of the 14th Amendment’s Equal Protection Clause.

Let’s set a few things straight:

1) Law is not politics. This seems simple enough, but to both the casual observer and most judges, in fact, the distinction is somehow subtle. When considering whether or not a law conflicts with another law or Constitutional Amendment, the only thing to be considered is what the law says, not what it ought to say.

2) The job of a judge, in terms of judicial review, is to interpret the law, not rewrite it. It is a perversion of the rule of  law to declare/consider a law “unconstitutional” simply because you dislike its political implications.

3) The Constitution means what it says, just like any other law. A law means nothing if it is not interpreted based on the original intent of the Congress that ratified it. The opinion held among judges that it should be interpreted “to meet the needs of the current society” is not only a violation of the separation of powers (“the needs of current society” are subjective, this is basically rewriting the Constitution), but also undemocratic (since when are un-elected judges better determinants of our needs than our elected representatives?)

4) Politically, I disagree with Prop 8. I don’t think it should have passed in the California state legislature.

With that in mind…

Proposition 8 is Constitutional. The Congress that ratified the 14th Amendment would have never meant it to mean anything about gay marriage. Ever. Frankly, homosexual relationships back then were illegal. We may look at the 14th and say “Well, it says ‘equal protection for all’, literally”.

Let’s get one more thing straight: The meaning of any sentence, any word, is not vested in the meaning of the word. The literal connotations of words, sentences, or Constitutional Amendments change over time. Thomas Jefferson saw no conflict in saying that “All men are created equal” while owning slaves. Similarly, the words “equal protection under the law” didn’t have the same connotations back then as they do today. The 14th gave all citizens the rights vested in the Constitution, but not equal protection under every law. If they had actually meant “equal protection”, it would have given women the right to vote, but judging by the 52-year gap between the 14th and women’s suffrage, I don’t think they meant what we think when we say “equal protection”.

If you’re looking for a law that codifies equal protection, that would be the Civil Rights Act of 1964. However, Prop 8 doesn’t conflict with that statute either. All it does is prevent any individual from marrying someone of the same sex, gay or straight. There’s no “unequal protection” involved.

However, why am I talking about this?

It’s not because I want to stop gay marriage or anything, it’s because I want to preserve the Constitution. If judges can rule that the Constitution means whatever they want it to, then soon enough, nothing in the Constitution will mean anything. That includes freedom of speech, the right to a fair trial, protection from torture, the whole kit-and-caboodle.

Judges do not dictate natural law. If you want to wage war on Prop. 8, do it in the ballots, that is the way it is properly done in a free and democratic society.