Ferguson and Spokeo

Rejecting the notion, floated by some so-called "progressives" and members of the Congressional Black Caucus that we need a Police Czar to prevent what happened to Michael Brown.  Or maybe what happened afterwards.  You know, to make the police friendly (just as the [war on] Drug Czar did such a fine job making the drug war genial and the Homeland Security Czar made TSA screenings warm and fuzzy and the Russian Czar made A FUCKING REVOLUTION), Scott Greenfield suggests that we already have the tools in place to reign in the police war on the citizenry.

But there is nothing sought for which there isn’t someone already responsible. The DoJ has an office of civil rights. The DoD doles out surplus military equipment under its 1033 program. You’ve got people paid to lead the police, oversee the police, fix the police, stop the police, then you can shake a stick at. And it’s amounted to a group of overarmed, undercaring, people with the power to subjugate upon command. So the answer is let’s add another layer with a cool Russian title?
Is there something progressive about the men and women we elected to national office, sometimes referred to as members of Congress, getting a free pass on their responsibilities? Or perhaps a Chief Executive who might use the fiat of his office to satisfy the needs of the citizenry. If only he had an Attorney General (which, If it makes people feel better, could be renamed to Attorney Czar) who was charged with seeing that the Constitution was honored by all who hoped to receive a government pension some day?
There is nothing here, nothing called for, that can’t be accomplished by the people already in place. They have the power and authority to control law enforcement. 

Don't hold your breath.

It is, after all, those elected officials (and the ones appointed by them and confirmed by them) who enthusiastically created this mess.  it is they who enthusiastically promoted the movement from 

 to

Oops.  Sorry.  Meant this

Of course, there are also the courts.  They, as Scott added, are the backup.

And to the extent some slimy bastards sneak through, we then have judges to fix their wagon.

Well, not so much.  As Erwin Chemerinsky pointed out in a Times Op Ed the other day, various sorts of Court-created immunity protect government and cops from being sued.  You have to make them pay, but the courts insist that we can't allow that.  Oh, sure we have the right not to have our rights violated. But nobody gives a rat's ass about that.

What some people do care about is a broader effort to shut the courthouse doors to people who've been wronged.  What makes it easy, and what purportedly justifies it, is how the Supremes have dealt with the provision of Article III of the Constitution (specifically, the first paragraph of Section 2 of Article III) that sets out the jurisdiction of the federal courts.

The judicial Power shall extend to all Cases, in Law and Equity, arising under this Constitution, the Laws of the United States, and Treaties made, or which shall be made, under their Authority;—to all Cases affecting Ambassadors, other public Ministers and Consuls;—to all Cases of admiralty and maritime Jurisdiction;—to Controversies to which the United States shall be a Party;—to Controversies between two or more States;— between a State and Citizens of another State,—between Citizens of different States,—between Citizens of the same State claiming Lands under Grants of different States, and between a State, or the Citizens thereof, and foreign States, Citizens or Subjects.

Which brings me to Spokeo.  That's Spokeo v. Robins, a case that the Supremes have been asked to hear this year.  

Spokeo asks the question of whether Congress has the authority to give people the right to go into federal courts and sue because their rights have been violated.  Technically the issue is much narrower than that, but the broad brush is suitable here.

This is the problem.  The Court has long held that those "Cases, in Law and Equity" coming from the Constitution, laws, and treaties, are only ones where somebody has suffered a specific and personal concrete injury.  Out some money, you can sue.  Be physically harmed, you can sue.  Just be pissed because your constitutional rights are being violated but not in any personal, concrete way - you haven't lost anything except a bit of your guaranteed freedom?  Nope.  Sorry.  The courts won't fix that.

As the Supremes said, back in 1979 (citation omitted, Rehnquist and Stewart dissented from the Court's decision, but pretty clearly not from what I'm quoting), explaining what that limitation to cases meant

In no event, however, may Congress abrogate the Art. III minima: A plaintiff must always have suffered "a distinct and palpable injury to himself" that is likely to be redressed if the requested relief is granted.

Why, if we actually said the courts were there to protect rights generally, to hold the government accountable for violating the Constitution?  It would surely be the end of the Republic.

Or not.

So Congress passed the Fair Credit Reporting Act and said that credit reporting agencies could be sued for willfully getting the information they reported wrong even if the person whose info was misreported hadn't suffered any actual harm from it.  (I'm oversimplifying like crazy.  Live with it.)  Spokeo said that Robins was better educated than he was, had more experience than he does, is married though he is not, and was better off financially than he is.  Robins sued for what he called a willful violation of the Act's requirements.  (Spokeo denies that it violated the Act, but that's irrelevant here.)  Ultimately, the 9th District said Robins could sue because he had an "injury in law" even if not an "injury in fact," and Congress said in the Fair Credit Reporting Act that an injury in law was enough.

Sorry for the arcana, but there was no other way.

So the question the Court can now answer if it's so inclined (the Court is set to consider whether actually to hear Spokeo at it's "long conference" on September 29) is whether there are circumstances when you can sue even if you haven't been hurt except that some right has been violated.  If the Court says yes (and I'm not putting good money on that), it's not only a victory for Robins and many other litigants, it's also a crack in the machinery that keeps the courthouse doors locked.

And once the doors are open even a little bit, then we can try to drive the trucks through.

The rules for closing the courthouse to people like Robins are supposedly based on the actual language of the Constitution.  The rules that say that cops are mostly immune to suit, that prosecutors are absolutely immune, that government is mostly immune, those rules have no grounding in the Constitution at all.  They were made up because the Divine Right of Kings and besides, if prosecutors and cops can be sued for riding roughshod over the innocent and guilty alike, they might exercise restraint - and then where would we be.

None of that would do much to hold Ferguson or Officer Wilson liable for what happened to Michael Brown.  And it doesn't directly address

But it'd be a start.

Makes Me Want To Throw Up, Too

Ken Webster got busted for selling crack within 1500 feet of a school in Torrington, Connecticut.  Bad boy.

He was charged with the sale and related offenses and convicted at trial.  He was sentenced to something like 23 years in prison but only having to serve 9 before he'd be on probation for 5 with, I suppose, the rest of the 23 hanging over his head.  (This was Connecticut and I neither know nor particularly care about how their sentencing scheme works.)  The case went up on appeal.  

Webster said that there wasn't enough evidence to convict him of that 1500 foot thing that cranked up his sentence.  See, he sold those drugs from his car, while driving the buyer around the block.  For a little bit they were more than 1500 feet from the school.  The appellate judges, as appellate judges do when they're faced with with that sort of technical argument, carefully parsed the statute.  They recognized that it was ambiguous and that those sorts of ambiguity must be resolved in favor of the Webster.  Then they giggled at the very idea of actually doing that and said,

AFFIRMED!

Wait.  No.  They didn't.  Holy Shit.  Webster won.  They ruled in Webster's favor, overturned his conviction on that count.  So, of course, the state appealed, asked the Connecticut Supremes to weigh in.  Which they did.

The justices did, as justices do when they're faced with with that sort of technical argument, carefully parsed the statute.  They recognized that it was ambiguous and that those sorts of ambiguity must be resolved in favor of the Webster.  Then they giggled at the very idea of actually doing that and said,

COURT OF APPEALS REVERSED!  CONVICTION AFFIRMED!

Really.

And all that's trivia and it's not why I'm writing.  And it's not why Gideon wrote about the Webster decision.  Or why Scott Greenfield did.

They wrote about, and I'm writing about it, because of the other issue.  The one that the court of appeals didn't bother with because undoing Webster's conviction took care of it.

See, the trial judge fucked up.  He didn't tell the jury about one of the elements of the offense, one of those things that unless the state proved beyond a reasonable doubt Webster would be innocent.  So the jury didn't get to decide if Webster was guilty.  They decided he'd done some of the stuff that makes up a crime, but not all of it.  

You know, it's as if they convicted him of robbing the bank without having to know or decide whether the bank was robbed.  Or whether he did it.

It was some 43 years ago, in 1970, in a case called In re Winship, that the Supreme Court said that one requirement of the Constitution - that thing the conservatives and the liberals and the libertarians and the radicals all say they believe in absolutely - is that nobody can be convicted of a crime unless the government proves beyond a reasonable doubt every fucking element of the offense.

Nobody.  Not kids.  (Winship itself concerned a juvenile.)  Not adults.  Not in the federal courts.  Not in the state courts.  Not in Ohio.  Not in your state.  And not in Connecticut, the Nutmeg State, the Land of Steady Habits.

So Webster was, and there's really no getting around it, convicted improperly.  He should not have been.  No technical quibble about how to construe the statute.  No squishing around the edges.  The conviction was wrong.  Plain and simple.  Or, at least, simple.  (Read on.)

The court of appeals, to recap, didn't need to reach this question because they'd already determined that he didn't violate the statute.  But the five wise justices of the Connecticut Supreme Court who heard the case did.  And they looked at the law.  And they looked at the Constitution.  Even in Connecticut, the fucking Constitution State f'rgodssake, you might think that would count for something.  Of course, you'd be wrong.

For the justices looked.  And they looked.  And they said.

Not my job.  I don't give a shit.  You can wipe our collective asses with your Constitution.  Fuck it.  And fuck Webster.

Oh, they didn't say the judge got it right.  They didn't even say "close enough for government work."  They just said that they didn't care.  No flies on them.  Because, you see, Webster's lawyer didn't object at trial.  And on appeal, his lawyer didn't say that the error was "plain."   He just said that Webster's constitutional rights were violated.   

He didn't jump through the right hoops, so it doesn't matter.  So said them all.

It fell to the Chief Justice, one Chase T. Rogers, to point out that even if Webster's appellate lawyer had jumped through the right hoops it might not have mattered.  (It is, after all, only a basic constitutional right that was violated, not anything important.  And he may only spend 9 years in prison and another 5 or so looking over his shoulder, so it's not like it's any big deal.)  She added a brief concurrence.

I agree with the majority's conclusion in part II of its opinion that appellate review of a waived constitutional claim that the jury instructions failed to include an essential element of the crime charged is barred by this court's decision in State v. Kitchens, 299 Conn. 447, 482-83, 10 A.3d 942 (2011). I write separately to emphasize that it is an unanswered question whether such claims are subject to plain error review. Because the defendant in the present case did not seek plain error review, however, I leave that question for another day.   

To which Gideon eloquently responded,

Those 6 lines make me want to throw up.

And which led Scott Greenfield to say,

And like Gideon, it makes me want to throw up.

I've said too many times to bother linking to that I don't pretend to know what justice is and that I'm not particularly interested in it. But if I neither recognize nor deal with justice, I've got more than a passing recognition of injustice. 

William Marbury was appointed justice of the peace by President John Adams on his way out of office.  Marbury's commission was to be delivered by James Madison, Secretary of State in the new, Jefferson administration.  Madison refused.  Marbury asked the Supreme Court to order Madison to give him his commission.  The great Chief Justice of the United States (that's the actual title today, though at the time it was Chief Justice of the Supreme Court) John Marshall, wrote the Court's opinion.

Marbury, he said, had an absolute right to his commission and Madison had no right to withhold it.  And he quoted Blackstone.

[I]t is a settled and invariable principle in the laws of England that every right, when withheld, must have a remedy, and every injury its proper redress.

What was true in England, he said, must be true here.

The government of the United States has been emphatically termed a government of laws, and not of men. It will certainly cease to deserve this high appellation, if the laws furnish no remedy for the violation of a vested legal right.

Which you'd think might pretty much settle the matter.  Marbury had a right.  Without a remedy, there is no right.  But ooops.  Even though Congress enacted a law giving the Supreme Court the power to order Madison to deliver the commission, the law was unconstitutional. 

We remember Marbury v. Madison as the case that established (whether by recognizing or inventing out of whole cloth, depends on your point of view) the power of judicial review.

It is emphatically the province and duty of the judicial department to say what the law is.

We tend to forget that what the case actually did was say that Marbury had a right, but no remedy.  Because, you know, doing the right thing wasn't worth shit in those days any more than it is today.  Of course, Marshall didn't say that it was "the province and duty of the judicial department" to do anything relating to justice.

Chief Justice Rogers serves on the Board of Directors of the State Justice Institute ("Improving the Quality of Justice in Our State Courts").*   Don't be holding your breath.

----------------------
*She was nominated by his Barakness and approved by the Senate, which says no more than what you already likely knew about both Obama and the Senate.

Noblesse Very Oblige

Back in the 1950s, Bob Hope used to tell this joke.

An American was in the Soviet Union explaining to a Russian citizen how we have the greatest country in the world.

"In America," he said, "anyone can get on a train, go to Washington, go up to the White House, and announce that President Eisenhower is a fool."

The Russian responded.

"It's no different here.  Anyone can get on a train, go to Moscow, go up the the Kremlin, and announce that President Eisenhower is a fool."

I. Ohio

By the time I get around to posting this, Fred Treesh will be dead, killed by employees of the Ohio Department of Rehabilitation and Correction. (Ain't no rehabilitatin' for Fred, and any correctin' involved is in fixin' a mistake god made, but I digress.)

Treesh was indicted by a grand jury in Lake County on a charge of aggravated murder with two death specifications, tried before a jury in the court of common pleas which found him guilty and said he should be killed.  The judge agreed.  Represented by appointed counsel, Treesh appealed the verdict and death sentence.  He filed for and pursued post-conviction relief in Ohio's courts and habeas corpus relief in federal court.  The Parole Board recommended that the governor deny clemency, and the governor did.

It was, then, all nice and legal.  And so, at 10 this morning, Fred Treesh will be strapped to a table at the Southern Ohio Correctional Facility (no pretense of rehabilitation there) and murdered.

It is murder, specifically aggravated murder (Ohio's only capital offense).  The crime is set out in section 2903.01(A) of the Ohio Revised Code.  It's a duly enacted law, passed by both houses of the General Assembly, signed by the Governor.

No person shall purposely, and with prior calculation and design, cause the death of another or the unlawful termination of another’s pregnancy.

No pregnancy involved here, but that's just an alternative.  When they strap him down to a table, stick needles into him, and pump him with pentobarbital so he will die, that's purposely causing the death of another with prior calculation and design.  It's all nice and proper, procedures followed: indictment, trial, appeals, court orders, gubernatorial authorization, the whole nine yeards.  But murder it is.  (The Nuremberg defense, "I was just following orders," is not an established part of Ohio's criminal jurisprudence.)

Still, there's a procedure.  Whatever you or I may think, the courts say it's fine.  No tribunal has yet declared this version of Ohio's death penalty law unconstitutional or said that the death penalty generally is.

Ohio is, of course, one of the 50 states.  Some authorize murder, some don't. 

II. The United States

The federal government, too, has a death penalty law.  Passed by both houses of Congress, signed by the President. There are, currently, 60 people on federal death row.  Like Fred Treesh, they were indicted and charged and tried and duly sentenced and have had and are proceeding with appeals and habeas petitions and clemency requests and whatever.  It is a safe bet that some number of them will, in time, be executed.

We are, ostensibly, a nation that honors the Rule of Law.  No one, we say, is above the law. 

This is the Fifth Amendment to the Constitution.  It's the law of the land.

No person shall be held to answer for a capital, or otherwise infamous crime, unless on a presentment or indictment of a Grand Jury, except in cases arising in the land or naval forces, or in the Militia, when in actual service in time of War or public danger; nor shall any person be subject for the same offense to be twice put in jeopardy of life or limb; nor shall be compelled in any criminal case to be a witness against himself, nor be deprived of life, liberty, or property, without due process of law; nor shall private property be taken for public use, without just compensation.

Notice that there's a part that reads, "nor shall any person . . . be deprived of life, liberty, or property, without due process of law."

OK, we routinely stretch the point.  See, for instance, what we did to José Padilla or what we're doing to Bradley Manning.  Hell, see the whole fucking mess at Gitmo.  But we have in those cases at least a pretense of process (though the courts needed to force it at Gitmo).  Here's what we don't have.

Virtually everyone agrees, Nixon was wrong.
 
I'm no particular fan of Chief Justice Roberts, but when he's right, he's right.  In United States v. Stevens, he wrote the opinion for the not-quite unanimous Court (Alito alone dissented) declaring that the statute making visual depictions of animal cruelty a crime.  Sure, he said, Clinton promised that the law would be used wisely when he signed the legislation.  So what.

Not to worry, the Government says: The Executive Branch construes §48 to reach only “extreme” cruelty, Brief for United States 8, and it “neither has brought nor will bring a prosecution for anything less,” Reply Brief 6–7. The Government hits this theme hard, invoking its prosecutorial discretion several times. See id., at 6–7, 10, and n. 6, 19, 22. But the First Amendment protects against the Government; it does not leave us at the mercy of noblesse oblige. We would not uphold an unconstitutional statute merely because the Government promised to use it responsibly. Cf. Whitman v. American Trucking Assns., Inc., 531 U. S. 457, 473 (2001).

Of course, it's just a week since the Court decided Clapper v. Amnesty International USA holding that regardless of whether the federal program of wiretapping under Section 1888(a) of the Foreign Intelligence Surveillance Act is constitutional, nobody can go to court to challenge it.  You have a right not to be subject to unconstitutional surveillance, but you have to trust the government's good sense and good will about it.  Roberts signed off on the opinion.
Still.  That's just phone calls.
This one, as they say, is murder.
You may recall that when Obama ran for President in 2008 his campaign championed "Yes, we can."  Who knew this is what he meant?

   Holder: Yes, We Can 

As we've said before, 

Trust us, we won't abuse the power

just isn't a working model for government in a democratic republic.

If You Can Keep It

The makers of our Constitution undertook to secure conditions favorable to the pursuit of happiness. They recognized the significance of man's spiritual nature, of his feelings and of his intellect. They knew that only a part of the pain, pleasure and satisfactions of life are to be found in material things. They sought to protect Americans in their beliefs, their thoughts, their emotions and their sensations. They conferred, as against the Government, the right to be let alone — the most comprehensive of rights and the right most valued by civilized men. To protect that right, every unjustifiable intrusion by the Government upon the privacy of the individual, whatever the means employed, must be deemed a violation of the Fourth Amendment. And the use, as evidence in a criminal proceeding, of facts ascertained by such intrusion must be deemed a violation of the Fifth.

Those are the stirring, and I'd submit self-evidently correct, words of Justice Louis Brandeis in Olmstead v. United States. 

Sadly, my submission is demonstrably wrong.  Indeed, it was wrong long before I offered it.  Brandeis penned those words in dissent from the Court's opinion written by the Chief Justice and (stick with me, this is relevant) former President William Howard Taft.  Or maybe it's not wrong.  Maybe it's right that what Brandeis said is self-evidently correct but that the powers that be don't give a shit and therefore regularly choose the incorrect over the correct. Of course, whether the Constitution is routinely misunderstood or ignored or intentionally violated, the effect is the same.

Sunday Barak Obama and Joe Biden swore to defend and protect the Constitution as they took the oaths of their offices and began their second terms as President and Veep.  Monday, they did it again, this time only ceremonially since it was the Sunday ones that counted.  I have no reason to believe that they lied.

Obama's speech was, as his best speeches are, soaring.  Evoking Jefferson and Lincoln and Kennedy and Martin Luther King, Jr.  He offered a vision of alliterative inclusiveness referencing Seneca Falls and Selma and Stonewall.  He talked about all the things that government can and should do.  It was a solid, progressive, liberal agenda he set out.  He quoted the Declaration of Independence and its own statement of what is "self-evident":

We hold these truths to be self-evident, that all men are created equal; that they are endowed by their Creator with certain unalienable rights; that among these are life, liberty, and the pursuit of happiness.

Yet he also omitted.

I'm not a governmental minimalist.  I believe in government.  I think the government can and should do much.  

But I believe, too, in what Brandeis recognized in Olmstead.  I was curious, so I checked and was surprised to discover that I'd only quoted that passage once before in this blog (here). At the time I was talking about balancing tests and how when freedom is put in the balance against much of anything else, freedom loses.  Which is why balancing tests are so pernicious.  They don't really balance.  They simply declare.

The reality, of course, is that all life is a balance.   Certainly all law is.  Forget absolute language.  It doesn't count. (Note that Brandeis spoke of "unjustifiable" intrusion violating the 4th Amendment, allowing a world of wiggle room.)

Yet the ideas, the absolutes of the ideas, that's something different.  And nowhere is the idea better set out than in one partial sentence from Olmstead:

[T]he right to be let alone — the most comprehensive of rights and the right most valued by civilized men. 

You can find recognition of some of that in what Obama said yesterday.  But you won't find much of it, or much support for anything in the Bill of Rights, in what he spoke about or what he advocates or what the agencies of his administration (or the one before or the one before that or the one before that - or, I regret to say, the ones that will follow).

We have decided, as a nation, that civil rights are a good thing (though how far to extend them is deeply contentious).  Civil liberties, on the other hand, are dangerous and can be rejected, ignored, crushed.  Or simply voted down, as the House did in 1995 when it voted against the text of the 4th Amendment 303-121.

Look, it's not absolute.  DOMA may really go down in flames this year.  Same Sex Marriage could become a constitutional right (don't go making wagers; I'm just saying those things are possible).  But if you want the government out of your computer, if you want to enforce the 4th Amendment or the 5th or the 6th or the 8th or the Establishment Clause or Free Press parts of the 1st - well, sure, maybe, if nobody much objects.  But then again, maybe not.  Just ask Bradley Manning.

As something of an aside, but not really, today marks 40 years to the day since the Supreme Court declared in Roe v. Wade that government had no right to prevent a woman from getting an abortion.  Roe was premised on the right to privacy implicit in the Bill of Rights. Or maybe it's properly seen, in Olmstead's terms as protecting against an "unjustifiable intrusion." Anti-abortion laws violate the 4th Amendment.  Either way, the states, the feds, and the courts have been backing away from the decision ever since.

I Rant, Too, But I Don't Get Royalties

There's a terrific short story by Lionel Trilling called "Of this Time, Of That Place."  It's about a young English professor (Howe) who, at one point, is speaking with a student (Blackburn) to whom he's given a richly deserved F on an examination.  They begin with a review on his comments about Coleridge's Rime of the Ancient Mariner.

Blackburn's eyebrows went up. From the height of a great and firm-based idea he looked at his teacher. He clasped the crags for a moment and then pounced, craftily, suavely. "Do you mean, Doctor Howe, that there aren't two opinions possible?"
It was superbly done in its air of putting all of Howe's intellectual life in the balance. Howe remained patient and simple. "Yes, many opinion are possible, but not this one. Whatever anyone believes of The Ancient Mariner, no one can in reason believe that it represents a -- a honey-sweet world in which we can relax."
"But that is what I feel, sir."

Kahlil Gibran, that misty and vacuous prose-poet whose works seem profound to generations of 15-year-olds pining for kumbaya-truths (love, peace, harmony) that ease the pain of actually confronting the complexities of the world, wrote in Sand and Foam

We shall never understand one another until we reduce the language to seven words.

Which, if you think about it, is pretty stupid.

I mean, it sounds good.  Simplify. Clarify. Let's all get on the same page.

The problem isn't agreeing about which words.  Pick any seven you like.

Either we couldn't say anything at all because there's no vocabulary for it - which wouldn't increase understanding a bit. Or we could say anything we'd like but nobody could understand it because each of us would be our own Humpty Dumpty.*those words would have so many possible connotations it would be impossible to do more than guess wildly at meaning.

When I was in law school, I had a professor whose response to every question from a student was to fling both hands up in the air in a gesture of uncertainty and say,

How the hell should I know?

Drove most of the class crazy, but of course, he was right. The correct answer to every legal question is, as I've said before,

It depends.

Unless, of course, you're a true believer. Perhaps Blackburn, say, who finds in Wordsworth

a rebel, a bringer of light to suffering mankind. I see him as a kind of Prothemeus [sic].

Or Gibran or Humpty Dumpty.

So you should immediately be suspicious when Nino (that's Associate Justice of the United States Supreme Court Antonin Scalia) carries on.

U.S. Supreme Court Justice Antonin “Nino” Scalia says it is “easy” to rule on cases involving the death penalty and legalization of abortion, issues which have been cause for soul-searching among other judges at all levels of the court system.
Scalia was recently discoursing before an American Enterprise Institute audience on being a self-described “textualist” who believes the U.S. Constitution should be interpreted exactly as written and intended by the Founders more than 200 years ago.
“The death penalty?  It’s easy.  Give me a break.  It’s easy.  Abortion? Absolutely easy,” Scalia told the AEI faithful.

Scalia, of course, has a putative framework for discovering the simplicity in those issues.  It's his version of originalism. He's referred to it, on occasion, as "faint-hearted."
Scalia, after all, has acknowledged more than once that if originalism leads to a result that offends too deeply, he'll blow it off.  And he admits that he believes in stare decisis (except when he doesn't) so that he'll vote against his originalist views if the alternative has been the law for a long time and he doesn't find it particularly offensive even if it is unconstitutional which he's really really serious about except when he isn't.

I've written about these things before, of course.  Most recently, I did it here. A couple of weeks before that, I wrote this about Scalia.

In other words (and again, Scalia admits this from time to time, though in language less stinging and admitting of less hypocrisy than what I'm about to write), his approach is to rigorously adhere to the original text and meaning of a constitutional provision or statute so that his personal and political preferences will have no effect on his decision.  Except that when his personal and political preferences conflict strongly with his understanding of the original text and meaning, he goes with preferences.
To do otherwise, actually to judge with integrity, he has not quite said, is to be Clarence Thomas.  And unlike Thomas (and this he has said), he's not nuts.

By those standards, Adam Freedman is nuts.

Freedman is the author of a new screed, The Naked Constitution: What the Founders Said and Why It Still Matters.  The distributor offered me a copy to review and I foolishly accepted because I'm a sucker for this sort of thing.  But frankly a book that just preaches to its choir, when the memboers of that choir aren't likely my readers, well . . . .

Anyway, here's the thing.  Freedman says what Scalia and all the originalists and textualists, and ballsandstrikesists and justapplythefuckinglawists all say.  The Constitution means only one thing.  What it meant before or what the words mean or what the authors of the Federalist Papers said it means (except when they disagree) or what Ronald Reagan said it means except that we have to rewrite what he said because he was a secret closet radical socialist which we absolutely deny by refusing actually to consider what he said and did but only what his iconography looks like or what your uncle Jake thinks it meant or your local Kleagle or . . . .

And that thing, what they all think it means, is some single, readily identifiable thing.  It's absolutely unambiguous.

The Constitution says that the federal government can do A, B, C, and D.  It can't do anything else because it can't do anything that isn't explicitly authorized.  Or it can do whole shitloads of stuff because it can do anything that isn't explicitly prohibited.  And the people have exactly the rights identified in the Constitution and Bill of Rights and no others.  Except for all those rights which they have regardless of what the Constitution and the Bill of Rights says because the Ninth Amendment says so.  But because it doesn't identify them, they don't exist unless someone identifies them.  And that someone must be the Supreme Court or it cannot be the Supreme Court, depending on just what you believe.

Freedman's version is the cramped one.  The one favored by Scalia (except when he abandons it or blows it off).  The one that says the federal government has those powers specifically given to it by the Constitution.  That those powers are to be read very narrowly, so that if it's possible to understand the Constitution as not having specifically authorized something, you should understand it that way.
The Bill of Rights is absolute, but only prohibits the things it specifically prohibits.  People understood that they had lots more rights, which is why they insisted on the Ninth Amendment, which guarantees all of them.  But since the Ninth doesn't enumerate those rights, they don't exist unless some state chooses to offer them. (I'm only being a little unfair.)
Consider, for instance, the Free Exercise Clause of the First Amendment. It's the second part of the amendment's opening clause.

Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof.

Congress can't stop you from practicing your religion, even if it involves something we don't approve of, like taking peyote, say, or engaging in plural marriage.  Except the Supremes said that it can.  First they said that Congress can interfere away as long as it had a compelling reason.  Then they said it can as long as the reason wasn't to single out the religious practice.  The latter was the holding in the peyote case (Employment Division v. Smith).  See, Freedman says, these things are just wrong.  Because "no law" means "no law."  Cannot do it.  No way, no how.  Absolute prohibition.

Had the Smith Court consulted original meaning - as Justice Scalia normally does - it could never have invented a neutrality exemption for infringements of free exercise. Granted,there must be some limits to religious ritual - human sacrifice is probably out of bounds - but the Founders had a strong bias against government-imposed limits.

There are several things to say here.  First, Freedman is right about a claim he almost but doesn't quite make: Smith was wrongly decided.  The neutrality principle is nonsense since it allows Congress to basically prohibit any religious practice as long as it doesn't claim to be doing that.
Second, Freedman wants to have it both ways.  The prohibition on interfering with free exercise is absolute, except that it's OK to interfere with free exercise if the religious exercise is sufficiently problematic because, well, gee, if it's really absolute then people can do anything if their religion tells them to. 
Third, it's not at all clear that the original understanding of the text of the First Amendment (which is what Freedman says you have to look at) would support the view that Congress couldn't prohibit a Native American religious ceremony that included the taking of prohibited anything.  Why?  Because while the original understanding was that Congress couldn't interfere with the exercise of any Christian religion, there was no such understanding about non-Christian ones.  Certainly not about Pagan ones.
The point isn't that Freedman's being hypocritical.  (Though he often is.)  It's not even that his historic understanding is built on finding someone who agrees with the result he wants and quoting and relying.  (Though his history is too often built on the approach too often seen in second-rate high school debate teams. "I have a quotation from an expert, so I've proved it."  You know, there's always an expert. And a quote.)
The problem is that parsing doesn't work the simple-minded way that Freedman insists it does.  Yes, the original understanding of the Free Exercise Clause was that the feds couldn't interfere with the free exercise of religion.  But no, the original understanding of the Free Exercise Clause wasn't that the feds couldn't interfere with the free exercise of religions other than Christian ones.  Maybe.  Maybe not.
But which question are you going to ask?
It's true that the Constitution doesn't explicitly protect privacy, or the right of married couples to use contraception. But why should the Ninth Amendment's guarantee of other rights not include any unless some state decides to adopt it.  Sure, Justice Douglas's airy pronouncement about the "penumbras" of the Bill of Rights was silly.  But it was also exactly right.  When you look at the First, Third, and Fourth Amendments, it's clear that there's an area of private thought and action and place and property that government's supposed to respect.  If you understand the Bill of Rights to protect as little as possible, you probably don't care.  If you understand it to protect as much as is plausible, then there is in fact a zone of privacy and then the question isn't whether some state chooses to declare something within that zone but whether there's a compelling reason for keeping it out.
As I said when last I wrote about originalism,

[E]very exercise in interpretation is an exercise in making it up.

That's as true when interpretation is described as discovery of some sort of originalism as it is when interpretation is free wheeling.  Depending on how you ask the question, and exactly what question you ask, you get the answer you want.
Freedman, like Scalia (and Thomas and Robert Bork and, yes, Earl Warren and Thurgood Marshall and, to tell the truth, John Marshall) asks questions and pursue answers that mostly lead him to answers he likes.  That's generally how it works.  It's not hypocrisy.  But it's delusional to believe that they get there by altogether neutral application of altogether neutral principles and analyses.
There's another point, too. That second part of the subtitle

and Why It Still Matters

Here's why, according to Freedman (and no, he doesn't actually say this, but it's implicit): The interpretation of the constitution Freedman favors, he believes not only to be truer to the vision of the founders than the interpretation he sees liberals favoring (and my god, he has this incredibly expansive view of what "liberals" believe and insists that all liberals buy into all of it).  He also thinks it's better.
Here's the bottom line.  There's a lot to be said against free-floating interpretations of the Constitution.  Rigid insistence that there's a single, proper, originalist interpretation that any determined fool can (and does, by the way) discover isn't it.  There's nothing thoughtful or nuanced or careful about Freedman's book.  It's a rant.  Set up straw man.  Knock straw man down. Declare victory over straw man who's declared to be a liberal who favors socialism and thinks everyone should have abortions.  At government expense.  All the time.
Of course, if you agree with him to begin with, it'll sound very reasonable and logical.
It isn't.



-------------------
* From, of course, Through the Looking Glass.

`I don't know what you mean by "glory",' Alice said.
Humpty Dumpty smiled contemptuously. `Of course you don't -- till I tell you. I meant "there's a nice knock-down argument for you!"'
`But "glory" doesn't mean "a nice knock-down argument",' Alice objected.
`When I use a word,' Humpty Dumpty said, in rather a scornful tone, `it means just what I choose it to mean -- neither more nor less.'
`The question is,' said Alice, `whether you can make words mean so many different things.'
`The question is,' said Humpty Dumpty, `which is to be master -- that's all.'

Pre-Holiday Presents and Other News Items

I could write about how death sentences are down.

I could write about how Judge Faye D'Opal of Marin County Superior Court said that California's six-year effort to revise its execution process resulted in an invalid procedure and the whole thing needs to be restarted.  Judge D'Opal explained.

The Initial Statement of Reasons (ISOR) and the Final Statement of Reasons (FSOR) each substantially failed to comply with the APA requirements by not considering and describing alternative methods to the three-drug protocol; by failing to provide a sufficient rationale for rejecting these alternatives; and by failing to explain, with supporting documentation, why a one-drug alternative would not be as effective or better than the adopted three-drug procedure, in violation of § 11346.2(b)(3)(A) and § 11346.9(a)(4).
“If an agency adopts a regulation without complying with the APA requirements it is deemed an ‘underground regulation’ (Cal. Code Regs., tit. 1, § 250) and is invalid. [Citation.].” (Naturist Action Committee v. California State Dept. of Parks & Recreation (2009) 175 Cal.App.4th 1244, 1250.)

I could write about how the feds have finally figured out that Sheriff Joe doesn't much like people of Hispanic descent.  Shame on him, they say. 

Per Marc Lacey in the NY Times.

“We have peeled the onion to its core,” said Thomas E. Perez, the assistant attorney general for civil rights, noting during a conference call with reporters on Thursday morning that more than 400 inmates, deputies and others had been interviewed as part of the review, including Sheriff Arpaio and his command staff. Mr. Perez said the inquiry, which included jail visits and reviews of thousands of pages of internal documents, raised the question of whether Latinos were receiving “second-class policing services” in Maricopa County.
Mr. Perez said he hoped Sheriff Arpaio would cooperate with the federal government in turning the department around. Should he refuse to enter into a court-approved settlement agreement, Mr. Perez said, the government will file a lawsuit and the department could lose millions of dollars in federal money. 

I could write about how President Obama decided that revisions to the defense authorization bill satisfied his concerns so he won't have to veto the bill.  This, of course, is the bill that, as Charlie Savage put it in the Times, authorizes

the government to detain, without trial, suspected members of Al Qaeda or its allies — or those who “substantially supported” them.

Former constitutional law professor Obama's concern, of course, wasn't that eternal detention of US citizens in military prisons simply because they are suspects might violate the Constitiution.  Pish tosh.  No, his concern was that the FBI would be hamstrung in its efforts to interrogate those folks.  The FBI still thinks it will, but his Barakness is no longer worried.

Those things and more could be the subject of this post.  And one or another might have been.

Except that the Ohio Supreme Court, bringing holiday cheer early (albeit slowly) to the prosecutors of Summit and Preble Counties, this morning granted their motions to kill.

• Ronald Phillips is to be killed by the State of Ohio on November 14, 2013.
• Dennis McGuire is to be killed January 16, 2014.

Presumably, neither Phillips nor McGuire will cherish this holiday gift.  Regardless, Ohio has now got murders planned more than two years into the future.

Justice Pfeifer, who on Wednesday explained that his personal opposition to the death penalty wouldn't prevent him from signing off on executions signed off on both murders.  

And there's still two weeks left to the year.

And Justice for All

Here's how an opinion in a capital case decided today by the Sixth Circuit begins.

For more than twenty years, the State of Ohio has displayed a remarkable inability to competently prosecute Joe D’Ambrosio. In 1988, the state botched D’Ambrosio’s trial by violating Brady v. Maryland, 373 U.S. 83 (1963), an error that later came back to bite it in federal habeas review. D’Ambrosio v. Bagley, 527 F.3d 489 (6th Cir. 2008). Then, after D’Ambrosio was issued a conditional writ of habeas corpus, the state misunderstood the district court’s clear, binary order and attempted to simultaneously comply with both of the two alternatives it was given: retry D’Ambrosio within 180 days or vacate his conviction and release him. After failing to complete only the prompt-retrial option, the hapless state marched back to district court and, making D’Ambrosio’s argument for him, conceded that it failed to comply with the conditional writ. Ever since, the state has asserted a variety of confused jurisdictional arguments in both the district court and in this court, and it is now in the position where it may have to let a man it believes to be a murderer go forever free. Whether D’Ambrosio deserves that windfall I cannot say, although, after more than twenty years of bungling his criminal proceedings, surely the state deserves that penalty.

If you didn't know better, you might think the opinion favored the defense.  You'd be wrong.

It's from the opening paragraph of the dissent by Judge Danny Boggs from today's decision in D'Ambrosio v. Bagley.

Put aside the legal merits of the case.  Focus instead on something like fundamental fairness.

Ohio has been trying to kill Joe D'Ambrosio for some 23 years.  It keeps fucking up the effort.  Not by some technical glitch but because in its zeal to ensure that he gets sentenced to die it lies and cheats.  Again and again.  At every opportunity.

He's never had a fair trial.  Never.

There's never been much evidence that, held up to serious scrutiny, suggests he was factually guilty of killing Anthony Klann (or even complicit in the killing).  There's a substantial body of evidence that says he had nothing to do with it.  At a fair trial 23 years ago, with all the evidence the state unconstitutionally and unfairly hid, D'Ambrosio would probably have been found not guilty.  Which would have ended things.

Instead, 23 years later, after decades on death row, after cheating and cheating and lying and lying, after dirty trick after dirty trick (all by the Cuyahoga County prosecutor), a federal judge said that enough is enough and so did a panel of the 6th Circuit, by a 2-1 vote.

I'm not interested here in whether the majority or the dissent has the stronger argument in light of the habeas statutes and rules and the cramped decisions of the courts.

Maybe Danny Boggs has the stronger legal argument.  Maybe not.  But if the law says they should be able to take another shot at trying D'Ambrosio (and why in god's name would we think they'd do it honestly this time?), then Mr. Bumble is right and "the law is a ass."

More to the point, if the law says that, then the law is unconstitutional.

Habeas corpus is supposed to be a check on the government.  When a defendant is convicted or sentenced and his constitutional rights were violated, habeas provides relief.  Except, it doesn't.  Why?  Because, said the Supreme Court in Calderon v. Thomson, it

frustrates both the States' sovereign power to punish offenders and their good-faith attempts to honor constitutional rights.

Got that?  Enforcing constitutional rights "frustrates" the states' efforts to "honor" them. Which means, of course, that the way to honor the states for trying to honor constitutional rights is to pat them on the back and say "good try" when they state's don't.  It's good for their self-esteem.

And really, we don't actually care if the rights are honored.  We just think it's important to try and honor them.  A for effort.  Results?  Hey, we're talking about criminals here.

Anyway, Calderon was 1998.  That's so last century.

This year, in Harrington v. Richter, the court explained that habeas still has a use. it's there to 

guard against extreme malfunctions in the state criminal justice systems.

Not just the ordinary cock-ups.  We don't care about those.  But when it gets extreme.  When constitutional rights aren't just ignored but are trampled upon, ground into dirt, thrown into the chipper, spit out, and then the chips used as kindling.  Then, maybe, things are bad enough that there's a role for habeas.

Whatever that role, it's not to ensure that constitutional rights are respected.  The Court's made that clear.  And it's certainly not to ensure some sort of fundamental fairness or decency or integrity in the system.  At least, not according to dissenting Boggs, though he's really just channeling Antonin Scalia on that point.

Really.  Here's Scalia fifteen months ago dissenting in Holland v. Florida.

The Court’s impulse to intervene when a litigant’s lawyer has made mistakes is understandable; the temptation to tinker with technical rules to achieve what appears a just result is often strong, especially when the client faces a capital sentence. But the Constitution does not empower federal courts to rewrite, in the name of equity, rules that Congress has made. Endowing unelected judges with that power is irreconcilable with our system, for it “would literally place the whole rights and property of the community under the arbitrary will of the judge,” arming him with “a despotic and sovereign authority,” 1 J.Story, Commentaries on Equity Jurisprudence §19, p. 19(14th ed. 1918). The danger is doubled when we disregard our own precedent, leaving only our own consciences to constrain our discretion. Because both the statute and stare decisis foreclose Holland’s claim, I respectfully dissent.

 When Holland came out, I quoted that passage and added this.

Hamlet observed that

Conscience doth make cowards of us all.

For Scalia, at least, conscience is far more dangerous than that.  It's something we might actually follow.  Were we to do that, who knows where it might lead.

And it's not just Scalia dissenting in Holland and Boggs dissenting in D'Ambrosio.  It's the whole shooting match.

Look, I'm a lawyer.  I believe in the Rule of Law.  I think that statutes and rules shouldn't just be acknowledged; they should be obeyed. 

But when the laws are designed (and this is how the habeas statutes and rules are designed) specifically to thwart constitutional rights, and when the judges and justices who interpret the habeas statutes and rules conclude that they should be read as narrowly as possible because Congress doesn't believe in habeas corpus and they don't believe in habeas corpus.  when they all think the idea is to eviscerate habeas corpus because it's designed to protect even guilty people and to protect constitutional rights and they don't really believe in constitutional rights anyhow.

When all that, then the statutes and rule and the judges and justices and legislators and executives make of themselves more than the Consitution.

In the name of strictly construing the law, they reject it.

Due process, a judge I know has said, is violated when you say, "That's not fair."

Like habeas, due process is in the Constitution.

For the judges and justices who think they can write habeas out of the law because they don't approve of it.  For the judges and justices who think that constitutional rights are to be honored but not enforced.  For the judges and justices who believe that due process will always be satisfied because when you get right down to it, no process is due

For all of them.  And for the legislators and executives who buy into the same idea.

You're wrong.

The state knows it can't convict D'Ambrosio in a fair trial, so it's committed to giving him an unfair one.  Danny Boggs seems to think it has a legal right to do that.

The Constitution says otherwise.

 This time, the Constitution won.

But on the Other Hand, I'm Scared

Some years ago, at a Constitution Day event on the campus of the University of Toledo, they'd arranged for a variety of folks to give three minute talks on the amendments constituting the Bill of Rights.  I'd been asked, as I recall, to talk about the 8th Amendment.  That's the one that prohibits cruel and unusual punishment, the one that lawyers and the courts use to set the boundaries of the death penalty.

For whatever reason, and I didn't discover this until I arrived just a couple of minutes before things got rolling, nobody had been assigned to speak about the 3rd Amendment.  I wasn't too surprised.  The 3rd is widely ignored, because it addresses what seems today to be a non-issue.  Ellen Alderman and Caroline Kennedy, in their book In Our Defense: The Bill of Rights in Action call it "the forgotten amendment."  They write,

The Third Amendment is a reminder that although the Constitution was "framed for ages to come and . . . designed to approach immortality," it was also written to address real and immediate grievances suffered by its authors.

Indeed.

No Soldier shall, in time of peace be quartered in any house, without the consent of the Owner, nor in time of war, but in a manner to be prescribed by law.

The Quartering Act of 1774 authorized the quartering of British troops wherever.  And wherever included the homes of the colonists.  Yes, that's as deeply offensive today as it was then, but it's just not much of a real world concern in the US of the 21st Century.

Still, I jumped into the breach and asked if I could take a couple of minutes to riff on the 3rd Amendment before it came my term to speak about the 8th.  See, I'm a fan.

What I like so much about the 3rd Amendment is it's absolutism.  No quartering in private homes in peacetime.  Even in time of war it has to be lawful, but none at all in peacetime unless the owner invited them in.

Rich or poor, you can bar the door.

The government simply cannot invade.

Besides, it leads so naturally into the Fourth Amendment.

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.

It's those amendments, supported by pieces of others, that make the basic point.  There are matters with which the government doesn't get to meddle.

Justice Louis Brandeis, finding in the 5th Amendment's prohibition against compelled self-incrimination an extension of the principles of the 4th, explained it as well as anyone.

The makers of our Constitution undertook to secure conditions favorable to the pursuit of happiness. They recognized the significance of man's spiritual nature, of his feelings and of his intellect. They knew that only a part of the pain, pleasure and satisfactions of life are to be found in material things. They sought to protect Americans in their beliefs, their thoughts, their emotions and their sensations. They conferred, as against the Government, the right to be let alone — the most comprehensive of rights and the right most valued by civilized men. To protect that right, every unjustifiable intrusion by the Government upon the privacy of the individual, whatever the means employed, must be deemed a violation of the Fourth Amendment. And the use, as evidence in a criminal proceeding, of facts ascertained by such intrusion must be deemed a violation of the Fifth.

I'm always saddened by the fact that Brandeis wrote that ringing paragraph not for the Court in Olmstead v. United States but in dissent.

All that is prelude to the point I want to make here.  To get there more directly, consider the decision DC Court of Appeals in Electronic Privacy Information Center v. Department of Homeland Security, a lawsuit challenging the Scope part of Scope and Grope on Fourth Amendment grounds.  (Yes, I'm oversimplifying again; it doesn't matter here.)  The court balanced intrusiveness against need, and it concluded that need won.

[W]hether an administrative search is “unreasonable” within the condemnation of the Fourth Amendment “is determined by assessing, on the one hand, the degree to which it intrudes upon an individual’s privacy and, on the other, the degree to which it is needed for the promotion of legitimate governmental interests.” United States v. Knights, 534 U.S. 112, 118–19 (2001) (internal quotation marks omitted).

That balance clearly favors the Government here. The need to search airline passengers “to ensure public safety can be particularly acute,” Edmond, 531 U.S. at 47–48, and, crucially, an AIT scanner, unlike a magnetometer, is capable of detecting, and therefore of deterring, attempts to carry aboard airplanes explosives in liquid or powder form. On the other side of the balance, we must acknowledge the steps the TSA has already taken to protect passenger privacy, in particular distorting the image created using AIT and deleting it as soon as the passenger has been cleared. More telling, any passenger may opt-out of AIT screening in favor of a patdown, which allows him to decide which of the two options for detecting a concealed, nonmetallic weapon or explosive is least invasive.

Scott Greenfield quoted that passage yesterday (he actually quoted a bit more than I did), and then pointed out all the things the court left out of its balance.  Things like whether either part of Scope and Grope (or even both together) actually advance safety.  And if so, how much.  Cost v. benefit and all that.

Much has been written by people with actual knowledge on the subject, like security expert Bruce Schneier, explaining at great length and in substantive detail why the TSA's initiatives do not serve legitimate purposes, do not make anyone safer and constitute security theater rather than actual security. 

Yet nowhere does the court recognize that there is any question, none, that the scanners or their alternative "patdown" (with or without insertion of gloved TSA hands into vaginas) may be a mere show to flame the public's security fears.  For the less cynical, the court didn't even consider that it's a show to pacify the public, and provide a paid occupation that allows adults to touch the nubile breasts of young girls.

It's astounding that the judges, with the opinion written by Judge Douglas Ginsburg, and joined by Judges Henderson and Tatel, swallowed the concept that the TSA knows what it's doing, and what it's doing must be sound because, well, the TSA says so, without any scrutiny whatsoever.  What strikes so many of us as monumentally dubious initiatives, conduct that is not only horribly intrusive but largely ineffective in protecting anyone from the exceptionally small risk of harm by terrorists blowing up a plane, is wholly ignored. 

Yet the decision goes on to compound the glaring gap in its discussion of balancing.  Even if we are to accept at face value, as the court does, that the TSA's grope and scope makes flying safer, the court needs to get its scale tested.  

Which is clearly right.  But the focus on the screwy balancing to justify Scope and Grope, while altogether appropriate in the context of the decision in EPIC only hints at a larger problem - one Brandeis, too, hinted at, but then Olmstead dates from 1928 when it was less of an issue.

Balancing tests for constitutional rights inherently substitute prejudice for principle.

Consider two examples of how it works (and yes, I'm oversimplifying again).

The Constitution says you can't punish people for their speech.  We accept, grudgingly, that the prohibition can't really be absolute since there are situations we can imagine where the speech would be so dangerous and have such immediate, drastic, and foreseeable dangerous consequences (Holmes's example of "falsely shouting fire in a theatre and causing a panic" comes close, though really the theater should be crowded and have too few exits).  But then we start to balance it away.  And we end up with Morse v. Frederick where the court said that students could be punished by a school for holding up, outside of school, a sign saying "Bong Hits 4 Jesus" because it might suggest that drug use is OK and stopping drug use among kids is really important.  That is, you weigh on one side of the scale drugs + kids and on the other side free speech.  Free speech loses.

Or you consider drunk driving and the right to travel the roads freely without being stopped by the cops even though there's no reason to think you've done anything wrong, just a random stop at a drunk driving checkpoint.  The Fourth Amendment would seem to say no.  But you put drunk driver on one side of the scale and freedom from suspicionless government intrusion and the Fourth Amendment proscription against those searches loses every time.  

There's no debate here about marginal risks and benefits.  The balance is the perceived goal (good) versus the perceived harm (constitutional rights that judges and justices and legislators and presidents and governors and attorneys general and all the lesser officials don't really mind if criminals lose.  Hell, they don't care if you lose those rights, or if I do.  (They don't want to lose those rights themselves, of course, but they also don't imagine they will.)

Because there's a bad guy lurking around every corner.  Because we can't really judge marginal safety, and don't really care to.

The thing about plane crashes and flying planes into the World Trade Center is that they're dramatic.  A lot of people die at one time.  That doesn't make flying especially dangerous (it's still about the safest way to travel) but it gives fear of flying (not Erica Jong's sort) a political resonance.

The point is that when we balance safety against freedom or crime prevention against freedom or anything we oppose against freedom, freedom is likely to lose.  Not because it's really worth less.  But because the very idea of balancing is meaningless.

How do we really do the cost-benefit analysis.  What's your peace of mind worth?  Especially when most of the cost won't be taken from you but from other people?

Want one more example?  Read through one of the most disingenuous, racist, wrongheaded opinions of the US Supreme Court, Korematsu v. United States.

Like curfew, exclusion of those of Japanese origin was deemed necessary because of the presence of an unascertained number of disloyal members of the group, most of whom we have no doubt were loyal to this country. It was because we could not reject the finding of the military authorities that it was impossible to bring about an immediate segregation of the disloyal from the loyal that we sustained the validity of the curfew order as applying to the whole group. In the instant case, temporary exclusion of the entire group was rested by the military on the same ground. The judgment that exclusion of the whole group was for the same reason a military imperative answers the contention that the exclusion was in the nature of group punishment based on antagonism to those of Japanese origin. 

That's a fancy and legalistic way of explaining that gee, since there are presumably bad Japanese out there, the balance says we should punish all of them.  The indians we sent to reservations, you know, the ones we didn't exterminate, they understood.

Balance at your own risk.