The Supreme Court: Activists, Conservatives & Individual Rights

Progressives, those who profess to be the defenders of civil rights against the centralization and accretion of government power are standing reality on its head. In terms of our traditional rights to freedom of speech, freedom to own property and the like, and not to mention right to own weapons, progressives, and their judicial counterpart, activist judges, regularly act to limit our traditional civil rights. This is often accompanied by imposing new "rights" outside of the text of the Constitution. David Bernstein discusses this as part of an article on the Supreme Court that he wrote for the CATO Institute:
______________________________________________________

This from Mr. Bernstein:

The Supreme Court's decision in District of Columbia v. Heller, upholding the Second Amendment right of individuals to own firearms, should finally lay to rest the widespread myth that the defining difference between liberal and conservative justices is that the former support "individual rights" and "civil liberties," while the latter routinely defer to government assertions of authority. The Heller dissent presents the remarkable spectacle of four liberal Supreme Court justices tying themselves into an intellectual knot to narrow the protections the Bill of Rights provides.

Or perhaps it's not as remarkable as we've been led to think. Consider the Court's First Amendment decisions. Contrary to popular belief, conservative justices are about as likely to vote in favor of individuals bringing First Amendment challenges to government regulations as are the liberals. Indeed, the justice most likely to vote to uphold a First Amendment claim is the "conservative" Justice Anthony Kennedy. The least likely is the "liberal" Justice Stephen Breyer. Consistent with general conservative/liberal patterns in commercial speech cases, Justices Clarence Thomas and Antonin Scalia have voted to invalidate restrictions on advertising more than 75 percent of the time. Justices Breyer and Ruth Bader Ginsburg, meanwhile, have voted to uphold such restrictions in most cases.

Conservative justices also typically vote to limit the government's ability to regulate election-related speech, while liberal justices are willing to uphold virtually any regulation in the name of "campaign finance reform." . . .

Liberals have also been more willing than conservatives to limit the First Amendment's protection of "expressive association." The Court's conservatives held that forcing the Boy Scouts of America to employ a gay scoutmaster violated the Scouts' right to promote its belief in traditional sexual morality. The liberal dissenters thought the government should be allowed to force the Scouts to present a message inconsistent with the Scouts' values.

The Fifth Amendment's protection of property rights presents, if anything, an even starker example of greater commitment to individual rights by the conservative majority. In the infamous Kelo v. New London, the Court's liberal justices, joined by Justice Kennedy, held that the government may take an individual's property and turn it over to a private party for commercial use. The four conservative dissenters argued that such actions violate the Fifth Amendment's requirement that government takings be for "public use."

A few years earlier, the Court's conservative majority held that a government regulation that deprives a land owner of any use of his property amounts to a "taking" that requires compensation. The liberal dissenters would have permitted the government to totally wipe out an individual's investment without any redress.

And consider the issue of government use of racial classifications. Liberal justices have been willing to uphold virtually any use of race by the government--including quotas in higher education, set-asides for government contracts, and raced-based assignments of students to public schools--so long as the government claims benign motives. The conservatives, by contrast, argue that the government must treat people as individuals, not as members of a racial caste.

Other examples could be raised. The conservatives, for example, have been more sympathetic to free exercise of religion claims than the liberals, and more inclined to forbid government regulation of "hate speech."

The point should be clear. There are many ideological differences between the conservative and liberal justices on the Supreme Court. But a consistent, stronger liberal devotion to supporting individual rights and civil liberties against assertions of government power isn't one of them.

Read the entire article. Don't expect this truisim to get repeated too often. And where it does, expect the point to be shouted down by the progressives who really do not want you to exercise those First Amendment rights.

Read More...

Summary only...

Of Federalism & Hookers

The federalization of criminal law is both a waste of resources and a gross assault upon the Constitutional concept of federalism - that the powers of the federal government are limited and there are spheres of governing that can and should be restricted to the states.

Yet the federalization of criminal law continues apace. The latest is legislation approved by the House to make prostitution a federal crime. How we get there is a bit of very well intentioned insanity.

The genesis of this legislation arises out the criminal enterprise of human trafficking – itself already a federal crime. Under federal laws, a person is guilty of trafficking if they hold someone else in "a workplace through force, fraud or coercion." In cases where human trafficking is found, it usually involves prostitution or forced labor. There are highly committed activists who are convinced that trafficking is evil and very widespread. The former is beyond argument, the latter is dubious:

The government estimated in 1999 that about 50,000 slaves were arriving in the country every year. That estimate was revised downward in 2004 to 14,500 to 17,500 a year. Yet since 2000, and despite 42 Justice Department task forces and more than $150 million in federal dollars to find them, about 1,400 people have been certified as human trafficking victims in this country, a tiny fraction of the original estimates. Some activists believe that if all prostitutes were considered victims, the numbers would rise into the predicted hundreds of thousands.

Read the article. So there you have it. If the facts do not bear out their beliefs, these activists are still too emotionally committed to acknowledge reality. So with full confidence in their motivation, they just change the underlying definitions. And a Democratic Congress says fine. Amazing.

The federal government has no business whatsoever inserting itself as a matter of federal law into the wholly local matter of prostitution. That is a purely local concern. Someone living in Washington should not be paying their tax dollars to prosecute a pimp and his girls in Florida just so an activist can sleep better at night. Raise your hand if you feel it more appropriate for the FBI to intestigate national issues, such as terrorism, rather than play vice cop.

Former Chief Justice Rhenquist spoke to precisely this issue when he said:

The pressure in Congress to appear responsive to every highly publicized societal ill or sensational crime needs to be balanced with an inquiry into whether states are doing an adequate job in these particular areas and, ultimately, whether we want most of our legal relationships decided at the national rather than local level."

And from the same ABA bulletin in which the Rhenquist quote appears:

. . . [A]n increase in the volume of federal criminal cases, driven primarily by additional cases that could as well be tried in state courts, diminishes the separate and distinctive role played by federal courts. The role of the federal courts is not to simply duplicate the functions of the state courts. Although many of the newly federalized laws may be rarely used, their presence on the books presents prosecutorial opportunities that may be exploited at any time in the future. There are many other adverse implications of the federalization of criminal law that [a 1998 ABA Report] treats, including the impact for the federal prison system, local law enforcement efforts, on citizen perception of state and federal responsibility, and on the application of limited federal resources. Where federal and state laws exist for the same crime, a citizen prosecuted for a state crime is subject to a set of consequences appreciably different from one prosecuted for a federal crime, and sentencing options—including the length of sentence and location and nature of confinement—as well as opportunities for parole and probation, will differ greatly.

Read the memorandum here. If you want a snapshot of what happens when there is no real federalism, one need only look across the pond to the UK and the EU

Read More...

Summary only...