A blog devoted to law, politics, philosophy, & life. Nothing in this blog is to be construed as legal advice.

Tuesday, May 04, 2004

Civil Rights in an Age of Terrorism

If I were running for office, I would give the following stump speech when asked the cliched question: “How do we balance freedom with security?”

I am tired of hearing people say that because we are fighting a borderless “war on terror” we should be willing to surrender our civil rights. Indeed, we should more vigorously exercise our civil rights. Freedom leads to safety.

Exercise your constitutional right to keep and bear arms. Keep a gun (and know how to use it) for emergencies. Train your children and siblings firearm usage and safety. There is no better way to protect yourself than firearm possession. States that recognize this ultimately enact concealed carry laws, which allow law-abiding citizens to carry a firearm for protection. Certainly terrorists, both foreign and domestic, are less likely to attack an armed populace. The thug on the street is less likely to enter your home if he suspects you are armed. The terrorist is less likely to enter the public square with a bomb if he knows you are armed – and watching.

Exercise your civil right to oberve the suspicious acts of others. Whenever flying, I keep alert for suspicious activities. When at a public place I am on the look-out for all types of evildooers, be they drunks or potential terrorists.

Exercise your constitutional right to profile. Although government-sponsored racism is immoral and illegal, keeping private eyes on Arab men between the ages of 18-35 is not only constitutional (as the constitution only prohibits state action), it is prudent. Indeed, I racially profile to the extent that when I see white males in camoflague, I am ready to defend myself and others. Perhaps we have a Tim McVeigh in the group. We do know, after all, that white men in militias are not the most stable group.

Study the martial arts and remain prepared to help members of your community in need. I beat up a neighbor who used to abuse his dogs. I regularly prevent hooligans from cutting in line or bullying the weak.

Exercise your First Amendment right of freedom of thought. Turn off SportsCenter, The O’Reilly Factor, and Rush Limbaugh and pick up a book. Not the stuff of pundits such as Ann Coulter or Al Franken. Study the warrior philosophies of the East and West. Read Sun Tzu’s the Art of War and Von Clausweitz’s On War. Ask yourself if mistreating prisoners of war in Iraq is consistent with the teachings of these two experts.

Study the philosophical classics of Plato, Artistotle, Locke, and Hume. Ask yourself, Are my leaders speaking truth or telling me lies, noble lies, for my own good? Cross-reference Bill Clinton’s taking holy communion with the appropriate advice Machavelli gives politicians in The Prince.

Always ask yourself: Is my government telling me the truth?

If you exercise your civil rights to their fullest, you will find that safety invariable follows. You will be protected from evil that comes from all sources, including the government.

Wednesday, April 21, 2004

Bumper sticker

I saw a bumper sticker today that read:

"There is no food like breastfood."

Some things are better left unsaid.

Tuesday, April 20, 2004

So maybe the problem isn't with the Intel's intel

Please see this site. I conclude that the only "intelligence" problem we have is with the intelligence of the people reading the FBI's reports.

Tuesday, April 13, 2004

Feeney Amendment and ex post facto laws

Ruling it is "procedural rather than substantive," the 2nd U.S. Circuit Court of Appeals has joined other circuits in applying the PROTECT Act's de novo review of federal sentences to appeals that were pending when the act was passed.
(Free registration required).

Pre-Feeney, a judge's decision to grant a downward departure was subject to an abuse of discretion standard of review. (Koon v. United States). The Feeney Amendment provided that sentencing decisions would not be subject to de novo review. The Feeney Amendment applied retroactively.

The legal issue is fascinating. We know that a change in a rule of evidence that makes it easier for the prosecution to prove a defendant's guilt violates the ex post facto clause. It seems to me that a procedural rule that makes a harsher sentence more likely also violates the ex post facto clause.
Half a cup of justice

County Attorney Barbara LaWall hired James Stuehringer to represent Peasley as he fought disbarment for allowing former Tucson Police Department Officer Joseph Godoy to lie on the stand in two capital murder trials.

If these charges are true, then a prosecution must follow.

Friday, April 09, 2004

Books for Soldiers...

Please click (and if you are a blogger - link) here.

Tuesday, April 06, 2004

Real rape

The story below shows how disgracefully our criminal justice system treats victims of false accusations of rape. Whoever was falsely accused most likely:
1. Was booked into jail where he faced being raped himself
2. Must disclose in his application for any government job that he was arrested
3. Must disclose to any State Bar he applies to that he was arrested
4. Paid thousands of dollars in legal fees
5. Lived his life in daily fear because, if convicted, he would:
a. have been raped almost daily in prison (sex offenders are the most at-risk prisoners),
b. had to register as a sex offender,
c. had his face posted on the internet for all to see.

The defendant will have his arrest record follow him for the rest of his life. But, acording to the below news report, the woman who sought to ruin his life because she (IMHO) got drunk, had sex, and felt regret...gets probation because she sent her friends to beat the defendant up - NOT because she filed a false report!

Can anyone disagree with Kobe's defense tactics? False accusations of rape happen every day. But women's activist groups seek to shackle the defense. Imagine if the defendant in this case had been convicted? Who is the real victim here?

A 22-year old woman who falsely accused a man of drugging and raping her receives two years probation.
Kristy Holden told police 24-year old David Mills raped her last June.
Friday in a Wake County Courtroom, Holden changed her story and admitted the sex was consensual.
When Holden told one of her friends Mills raped her, a group of men retaliated by beating up Mills.
Seven of the eight attackers are also on probation.
Holden was convicted of conspiracy and being an accessory to the crime.

Story via CrimLaw.
Ken Starr is now Dean Starr

Kenneth Starr is now Dean at the Pepperdine Law School. This should be great news for Pepperdine. The LA Times story is here. Pepperdine's announcement is here.
Bad news...Illinois v. Caballes

It is always bad news when the Supreme Court grants cert. in a Fourth Amendment case where the lower court sided with the private citizen.

Illinois v. Caballes asks whether an officer can detain a private citizen while a police officer uses a drug dog to search his car for contraband.

Via Goldstein & Howe.

Friday, April 02, 2004

If numbers do not change meaning over time, then why must words?

Of course, one counter-argument is that although the meaning of numbers remain fixed, words do not have clear meanings. However, who argues that the Electoral College, Art. II, §1, cl.2 is unconstitutional in today's time. It is argued to be undemocratic when it leads to the election of a President who received 500,000 less votes than the loser. But no one argues that the Electoral College is unconstitutional. It is clearly articled in the text, after all. And yet we say that "nor shall any State deprive any person of life, liberty, or property, without due process of law", Amend. XIV, §1 creates substantive rights. How can this be? The words clearly indicate that the State may deprive us of life, liberty, or property, if it provides due process of law.

Why must some portions of the text be read literally while others must not?
The right to privacy

The pro-abortion forces think they have a monopoly on the term "the right to privacy," which means the right to kill the unborn. Very often some poll will come out showing that a supermajority of Americans support the right to privacy. And although no intelligent person believes that the right to privacy means the right to kill, a book I have been reading offers examples of what Americans traditionally regarded as the right to privacy.

Edward Bennett Williams, the preeminent lawyer of his generation wrote One Man's Freedom (Atheneum 1962). Before his 40th birthday, Mr. Williams represented, among other people, Jimmy Hoffa, Senator Joseph McCarthy, and Representative Adam Clayton Powell, Jr. His law firm remains prominent and stands as testament to his life's work - Williams & Connolly. The Index to this book lists six references to the "privacy, right to" - pp. 88, 91, 96, 97,102, 118.

Among the most notable as these: "We all have a vital stake in the preservation of the right to privacy - the privacy of the home, the privacy of your thoughts and words, the privacy of our conservations, both face to face and telephonic." Id. at 88. And "This [the Fourth Amendment] was the effort of this nation's founding fathers to protect the individual's right to privacy." Id. at 97

Chapter 6 (pp. 88-105) was titled, The Listeners at the Walls and deals with bugs and other surreptitious listening devices. Chapter 7 (pp. 106-121), The Party Line, argues that wire taps should be covered under the Fourth Amendment.

Certainly people may argue that allowing a doctor to cut open the skull of a fetus has to do with privacy (just as the person who commits murder in his own home may seek to do so privately) does not mean that they have the right to stake claim to the English language.

The living Constitution

Justice Kennedy recently said, "Had those who drew and ratified the Due Process Clause of the Fifth Amendment or the Fourteenth Amendment known the components of liberty in its manifold possibilities they might have been more specific. They did not presume to have this insight. They knew times can blind us to certain truths and later generations can see laws that once thought necessary and proper in fact serve only to oppress. As the Constitution endures, persons in every generation can invoke its principles in their own search for greater freedom." Lawrence v. Texas.

But we don't hear these arguments as to other Constitutional provisions. No one says, Article I §2, cl. 2 ("No Person shall be a Representative who shall not have attained the Age of twenty five Years") really means that a person must have reached a certain level of maturity before reaching office. And that today, people who are 25 aren't nearly as mature as someone of the same age two-hundred years ago - which is clearly true - and therefore the age of qualification must be raised. Or that "the executive Power shall be vested in a President of the United States," Art. II, §1, cl. 1 should change with our times: we maybe need two Presidents instead of one. Finally (but not exhaustively) no one argues that the Seventh Amendment be adjusted for inflation. ("In Suits at common law, where the value in controversy shall exceed twenty dollars, the right of trial by jury shall be preserved [ ].")

Race, One-hundred & twenty-nine years later.

In support of a 1875 bill to "protect all citizens in their civil rights," 18 Stat. 335 (1875), Congressman Butler had this to say:

"There is not a white man [in] the South that would not associate with the negro - all that is required of this bill - if that negro were his servant. He would eat with him, suckle from her, play with her or him as children, be together with them in every way, provided they were slaves. There has never been an objection to such an association. But the moment you elevate this black man to citizenship from a slave, then immediately he becomes offensive." Debate on 1875 Bill, 3 Cong. Rec. 940 (1875).