All Posts Tagged With: "jurisprudence"
Spitting on Our Civil Liberties?
One of the things I’ve always loved about constitutional law is the way that a seemingly straightforward principle can be challenged in the real world by so many different kinds of unexpected, ambiguous, borderline cases. It’s related to the debate that recently went on here about whether the Constitution is an evolving document or not, and it’s why I agree with Billy: there’s no way the framers could have anticipated every single possible fact scenario or cultural shift, making it a necessity to give the Constitution a little flexibility and changeability.
This case caught my eye today and I’m interested in how this defines our readers’ levels of commitment to civil liberties. The facts of the case, taken from this AP article:
Not long ago, John Nicholas Athan got an official-looking letter about a class-action lawsuit filed on behalf of people who had been overcharged on parking tickets. If he wanted to take part in the case, he was told, he had to sign and return the enclosed form. He licked the self-addressed envelope, sent it back and waited to hear if he would get any money. In truth, there was no lawsuit – but there was DNA. The letter was part of a ruse devised by detectives to get a sample of Athan’s DNA and connect him to a slaying that had gone unsolved for nearly 21 years.
A clever idea on the part of the police, though my kneejerk reaction is that it’s unconstitutional, especially after learning that Washington state’s constitution provides greater privacy protection than the Fourth Amendment of the US Constitution. Washington’s Supreme Court disagrees with me (majority opinion here, concurring opinion here, two dissenting opinions here and here). The majority opinion takes a pretty hardline stance against an expectation of privacy over one’s DNA. The concurring opinion writes that while there is an expectation of privacy, “a person no longer has a privacy interest in something he voluntarily exposes to the public.” The opinion continues:
Here, without force or compulsion, Athan knowingly exposed his saliva, and the DNA contained therein, by licking the envelope, by putting that envelope into the public mail system, by sending it to persons unknown to him, and by implicitly inviting the recipients to open the envelope.
The first dissenting opinion focuses specifically on the fact that the police officers impersonated lawyers offering to represent the defendant, implicating violations of attorney-client privilege. The second dissenting opinion more broadly addresses the privacy issues in question, and I believe accurately points out that the defendant’s actions were not voluntary, because “Athan would not expect someone he believed to be an attorney to obtain incriminating evidence against him by extracting the saliva from the envelope he sent to the attorney.”
Skim over the opinions; they’re short and it’s an interesting case.
DI Column: Sex Changes, Alimony, and the Meaning of Progress
New column here.
Everything you need to know is in the title. ;)
For the record, Billy, the best part of Field of Dreams is actually when the little girl chokes on a hot dog. I’m also evil, though, so there’s a degree of bias at hand.
New DI Column: Pornography and Freedom of Speech
Rarely do I get the chance to use the phrase “hot uncensored XXX action” in a column, so this one was quite a treat: “Pornography and Freedom of Speech.”
"I Have Not Received A Clear Answer"
My general antipathy to all things hyper-masculine has made me skeptical of the new darling of the Democratic Party, Senator Jim Webb of Virginia. Don’t get me wrong, I’m delighted he won and, by ousting incumbent Senator George “Macaca” Allen, gave the Democrats a one-seat majority in the Senate. It’s just that when Democrats start celebrating “tough” and “macho” new Senators like Webb or Montana Senator Jon Tester, I get a little nervous. Call it bigneckaphobia.
Senator Webb, however, has been far exceeding my lowered expectations for him. It started with the firm, understated speech he delivered as the Democratic response to President Bush’s State of the Union address. Now it is his simple insistence on receiving an answer to a question.
A month ago, Webb asked Secretary of State Condoleezza Rice if the Bush administration holds the position that it has the power to take military action against Iran in the absence of both a direct threat and Congressional approval. Rice declined to answer, saying, “I’m really loathe to get into questions of the president’s authorities without a rather more clear understanding of what we are actually talking about. So let me answer you, in fact, in writing. I think that would be the best thing to do.”
A month later, Webb is still waiting for an answer. And he is still demanding one. From his speech on the Senate floor late yesterday:
The Administration’s view of its presidential authority to conduct unilateral military action against other countries, and particularly with Iran, was documented in President Bush’s signing statement accompanying the original authorization for use of force in Iraq October 16, 2002. I would urge my colleagues to read this language carefully. It states in part, “My signing this resolution does not, constitute any change in the long-standing positions of the executive branch on either the President’s constitutional authority to use force to deter, prevent, or respond to aggression or other threats to U.S. interests…”I have raised this language with Secretary of State Rice, as well as Deputy Secretary Negroponte. My question was whether the Administration believes that it possesses the authority to conduct unilateral military activity against Iran in the absence of a direct threat and without the approval of the Congress. I have not received a clear answer from either on that point. And that is troubling.
Yes, it is. Regardless of your views on the war in Iraq (and mine were largely positive), this administration’s attitude toward its unchecked military authority is grounds for concern.
Webb is demonstrating both leadership and intellect here. How the Bush administration can let this question go unanswered, and how the media can let this story go untold, is baffling and saddening and alarming. This is a time for dogged persistence on the part of both the media and the Democratic Party (and, one would hope, the entire Congress). Webb is doing his part. It’s time for others to step up to the plate.
Monteith adds: On the subject of Senator Webb, I engaged in a point-counterpoint in the DI with columnist Eric Naing on the subject of whether Webb would be a good choice for the Democrats’ Vice Presidential nominee in 2008. Naing argues against his nomination here, I counter here.
Partial Birth Abortion Hearing
On November 8th the Supreme Court heard oral arguments for Gonzales v. Carhart, which is a case challenging the constitutionality of the 2003 Federal Partial Birth Abortion Ban.
They have been showing the oral arguments (audio only) on CSPAN, but if you missed it you can listen to it at Oyez, a site that stores the oral arguments for many of the major cases in recent years. It’s fun to see how the Justices spar with the nervous and quivering Ivy League attorneys. It looks like they have not yet actually ruled on this case. Enjoy.
Wikipedia has multiple entries clarifying the terminology and procedure of partial birth abortions.
Roe?
“The great object of my fear is the federal judiciary. That body, like gravity, ever acting, with noiseless foot, and unalarming advance, gaining ground step by step, and holding what it gains, is ingulfing insidiously the special governments into the jaws of that which feeds them.”– Thomas Jefferson (letter to Judge Spencer Roane, 9 March 1821)
Slate Extravaganza
Slate is perhaps my favorite website of all time. Its counterintuitive attempts to overthrow the conventional wisdom of the day are never mundane, and while I don’t always agree with what its writers have to say, I usually do. Here now is a small sampling of articles from Slate that have appeared this week.
This article is written in part by Dahlia Lithwick, who writes mainly on the Supreme Court and constitutional law and is among my favorite Slate contributors. She writes here of the historically bad detainee law the Congress passed recently thanks to the spinelessness of John McCain, Arlen Specter, and Lindsey Graham, among others.
This article, by John Dickerson, pertains to President Bush’s characterization of Democrats as “the party of cut-and-run,” despite Bush’s own policy being in practical terms identical to the policy of many Democrats he criticizes.
This article, my favorite of the week, is written by Christopher Hitchens, a liberal famous in part for supporting the Iraq war and also in part for being one of the most incisive writers of modern times. Here he writes of the recent revelation that Henry Kissinger has been playing a prominent role in the Bush administration’s policymaking.
This article, by Troy Patterson, is about NBC’s new show, Studio 60 on the Sunset Strip. I link to it here not because it is a particularly great example of Slate’s writing, but merely as a feeble attempt to get everybody who reads this blog to tune in Monday nights at 9:00 CST to enjoy the magical world of television’s greatest writer, Aaron Sorkin.