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On Monday Morning Philosophy, Or, Founders Tell America: “You Figure It Out” March 22, 2011

In our efforts to form a more perfect Union we look to the Constitution for guidance for how we might shape the form and function of Government; many who seek to interpret that document try to do so by following what they believe is The Original Intent Of The Founders.

Some among us have managed to turn their certainty into something that approaches a reverential calling, and you need look no further than the Supreme Court to find such notables as Cardinals Samuel Alito and Antonin Scalia providing “liturgical foundation” to the adherents of the point of view that the Constitution is like The Bible: that it’s somehow immutable, set in stone, and, if we would only listen to the right experts, easily interpreted.

But what if that absolutist point of view is absolutely wrong?

What if the Original Intent Of The Founders, that summer in Philadelphia…was simply to get something passed out of the Constitutional Convention, and the only way that could happen was to leave a lot of the really tough decisions to the future?

What if The Real Original Intent…was that we work it out for ourselves as we go along?

“…you see, all the majesty of worship that once adorned these fatal halls / was just a target for the angry as they blew up the Taj Mahal…”

–From the song Gasoline, by Sheryl Crow

The reason this is coming up today is because I’ve been writing a lot about Social Security lately, and I keep getting comments from folks who see no Constitutional foundation for such a program.

To sum up what I often hear, if there is nothing in the Constitution that specifically provides for Social Security, then, if it’s to be done at all, it’s something that should be left to the States. (The 10th Amendment is used to reinforce this point.)

A lot of these folks, from what I can see, hearken for a simpler time, a time when America had no “foreign entanglements” or National Banks…a time when men of the soil worked their farms with no fear of Debt or The Taxman….a time when government worked best by using local wisdom to deal with local problems.

In other words, we’re basically having the same arguments over the shape of this Government that Thomas Jefferson and Alexander Hamilton were having in 1787—and for those who don’t recall, Hamilton won, which reflects the reality that we don’t all live on farms and hunt turkeys and Indians, and that State Governments are just as capable of ignorance and foolishness and greed and blind hate as any Federal Government.

To reinforce their arguments “fundamentalists” fall back on some version of the Original Intent theory, which basically assumes the Constitution was written by men who miraculously created a perfect document, and that all the answers to today’s problems would be found by simply allowing the Original Intent to shine through.

I’m here to tell you that couldn’t be more wrong—and to prove my point you need only consider the Civil War.

Despite what you might have heard in Virginia, the Civil War really was about slavery, and the reason we had that fight in the 1860s was because there was no way the question could be settled at the Constitutional Convention.

Those Founders who supported ending that “peculiar institution” were never going to convince slaveowning Founders to give up their property, and as a result of the desire to get a Constitution drafted that could be ratified by “the various States” there were compromises made, including the 3/5ths Compromise and Article Four’s requirement to deliver fugitive slaves to their owners upon demand, which resulted in the Fugitive Slave Acts of 1793 and 1850.

The Intent Of The Founders, on the question of slavery, was to let time work it out.

The same kind of “let time work it out” thinking led us to Article 1, Section 8, and the “general welfare” clause.

Congress is empowered to enact legislation that provides for the “common defense and general welfare of the United States”…but there is no specific interpretation of what the phrase means (in fact, there is no glossary at all for the Constitution, which means there are plenty of other examples of, shall we say, “unclear phrasing”).

Since there is no specific reference as to how Article 1, Section 8 and the 10th Amendment are supposed to interact or what the Founders’ Intent might be, we are again forced to apply our own interpretations, over time, to figure out how to resolve the inevitable conflicts.

We had to do that because, even as there were proponents of a Federal system, there were plenty of Delegates at the Convention who wanted nothing to do with a strong central government. They wanted to keep a system in place that resembled what we had under the Articles of Confederation, where the Federal Government had no ability to compel the payment of taxes and States had the choice of whether to “accept” Federal laws…or not.

Over time, of course, we’ve come to realize that having one air traffic control system, and not 50, was a good idea, and that funding things like disaster response on a national level makes sense, even if Texas wants to go it alone or something, and we probably all agree today that if States are willing to allow 12-year-old factory workers to work 16-hour days, then Federal child labor laws are a reasonable thing to make that stop—and all of this progression of history is happening because the Original Intent was to let the future figure out where the 10th and Article 1, Section 8 would “find their center”.

The Original Intent Of The Founders, apparently, was that white men who did not own property, women, and those not pale and fair and of European descent had no reason to be involving themselves in the affairs of government, as that was the list of who was not allowed to vote at the time we began our experiment in democracy; over time we’ve seen fit to change that—and at every step along the way there have been Cardinals of Interpretation ready to tell us that with each change we were doing violence to the letter and the spirit of the Constitution as they knew the Founders would have intended it to be.

Am I entitled to create or possess any form of pornography because the First Amendment prevents Congress from abridging free speech, or is the general welfare furthered by allowing society to protect itself from the exploitative effects of pornography by limiting or banning completely the production or possession of certain materials that are considered unacceptable?

The Founders seem to have offered no obvious intent when they created this conflict, which makes sense, because the possession of child pornography didn’t really exist as an issue in 1789.

I’m guessing that today we are not anxious to have each of the 50 States adopt their own rules (after all, who knows what some crazy State might do?)—but they did put that “general welfare” clause in Article 1, Section 8, and over time, our view of Constitutional law has come to accept the compromise that the Founders could not have foreseen.

The fact that the Supreme Court resolves these kinds of conflicts at all was not laid out in the Constitution, nor was the fact that the Federal Government’s powers are superior to those of the States; it took the 1803 Marbury v Madison and 1819 McCulloch v Maryland rulings to figure out, when there are multiple claims of liberty, which were to be put ahead of the others.

Can you guess why?

That’s right, folks: it was because they had Delegates at the Constitutional Convention (and States who had to ratify the finished product) who did not want to give the Court or a Federal Government that kind of power, and the only way to get something passed was to sort of “leave things open” and let time work it out.

Here’s an example of how one of the Founders tried to tried to kill the “Original Intent” argument before it even got off the ground: James Madison, who kept the only known complete set of notes during the Constitutional Convention never released those notes during his lifetime (he’s also credited with being the principal author of the document, possibly because his were the best notes).

Why did he do that? It appears to be because that Founder’s Intent was to make the Constitution’s words stand on their own, without his notes to frame the debate—and in fact the document had been in force for almost 50 years before those notes saw the light of day.

The Cardinals of the Supreme Court, some of whom claim they can divine Original Intent for any and all situations, are hoping that you’ll forget that they really serve to resolve disputes where the intent of the Founders seems to collide with the intent of the Founders—and all of that brings us right back to Social Security.

It is true that the Constitution, as it was written in 1789, does not contain the words “you may establish Social Security”—but it is also true that there were no words that would allow anyone who is not a white male to vote, or to prohibit the ownership of slaves.

Congress, acting with the authority to provide for the general welfare, took Roosevelt’s proposal and enacted it into law. The Supreme Court, in 1937, took up the question of whether the 10th Amendment prevented Congress from enacting Social Security with a series of three rulings, and here’s part of what they had to say:

Counsel for respondent has recalled to us the virtues of self-reliance and frugality. There is a possibility, he says, that aid from a paternal government may sap those sturdy virtues and breed a race of weaklings. If Massachusetts so believes and shapes her laws in that conviction, must her breed of sons be changed, he asks, because some other philosophy of government finds favor in the halls of Congress? But the answer is not doubtful. One might ask with equal reason whether the system of protective tariffs is to be set aside at will in one state or another whenever local policy prefers the rule of laissez faire. The issue is a closed one. It was fought out long ago. When money is spent to promote the general welfare, the concept of welfare or the opposite is shaped by Congress, not the states. So the concept be not arbitrary, the locality must yield. Constitution, Art. VI, Par. 2.

So there you go: the next time someone tells you that a program like Social Security is unconstitutional because of Original Intent, be very, very, suspicious, and keep in mind that the Constitution was written, intentionally, with the idea that a lot of problems were simply going to be kicked down the road to future generations of Americans.

Constitutional Delegates, after all, were politicians, and if there is one thing that politicians love to do it’s to kick a problem down the road so that something can get done today.

The history of the last 225 or so years has been a long journey down a long road that took us past slavery and Reconstruction and suffrage and Jim Crow, and to assert, as the Cardinals of the Court do, that all those questions were answered that summer in Independence Hall is to be either amazingly blind or deliberately untruthful—and the fact that they get to dress in robes and sit behind something that looks quite a bit like an altar doesn’t change that even one little bit.

FULL DISCLOSURE: This post was written with the support of the CAF State Blogger’s Network Project.

 

On Organized Fearmongering Revealed, Or, “Lock Up The Kids…It’s The Gay!” August 7, 2010

The airwaves (and the print and blog waves, for that matter) are filled with the news that a Federal Judge in California has declared that State’s Proposition 8 to be unconstitutional, which could clear the way for the resumption of same-sex weddings in the State.

Ordinarily, this would be the point where I would present to you a walkthrough of the ruling, and we’d have a fine conversation about the legal implications of what has happened.

I’m not doing that today, frankly, because the ground is already well-covered; instead, we’re going to take a look at some of the tactics that were used to pass Prop 8, as they were presented in Judge Vaughan’s opinion.

It’s an ugly story—and even more than that, it’s a reminder of why it’s tough to advance civil rights through the political process, and what you have to deal with when you’re trying to make such a thing happen.

So first things first: one of the sites where my postings are to be found is The Bilerico Project, and over there Dr. Jillian T. Weiss has gone to the time and trouble of explaining the nuts and bolts of this ruling in a very accessible way; I’d commend to all of you who are looking for that background a visit to her story.

With that out of the way, here’s what I want you to know about how Prop 8 was presented, promoted, and defended: the entire process was designed to use ignorance, fear, disinformation, and God to make same-sex couples a national threat to you and your babies—and when it came time to defend this proposition in court, those who supported Prop 8, frankly, ran away and hid, which had a lot to do with the eventual outcome of the findings of fact, and, of course, the findings of law.

(If you weren’t aware, a court’s opinion will often present as a narrative of the evidence, followed by “findings of fact”, then “findings of law”. In the appeals process, findings of fact are rarely overturned; findings of law are frequently overturned.)

The “Defendants and Defendant-intervenors” (to use the exact language of the Court) who support Prop 8 intended to call 10 expert witnesses to explain why Prop 8 fulfills some sort of rational purpose.

Some of them were “deposed” (a sort of “pre-interview” conducted under oath before trial)…and that did not go well: by the time the trial came around only two of the original 10 were actually called to testify. Of the missing eight, two had their deposition testimony offered into evidence by the Plaintiffs, who were able to use the testimony of the Defendant’s expert witnesses to show the Judge that Prop 8 deserved to be overturned.

After that process was over, here’s what the Judge had to say about the Prop 8 campaign’s tactics:

The Proposition 8 campaign relied on fears that children exposed to the concept of same-sex marriage may become gay or lesbian. The reason children need to be protected from same-sex marriage was never articulated in official campaign advertisements. Nevertheless, the advertisements insinuated that learning about same-sex marriage could make a child gay or lesbian and that parents should dread having a gay or lesbian child.

One of the two defense experts who did testify was David Blankenhorn; he’s the founder and president of the Institute for American Values. Here’s what the Judge had to say about that testimony:

Blankenhorn was unwilling to answer many questions directly on cross-examination and was defensive in his answers. Moreover, much of his testimony contradicted his opinions. Blankenhorn testified on cross-examination that studies show children of adoptive parents do as well or better than children of biological parents. Blankenhorn agreed that children raised by same-sex couples would benefit if their parents were permitted to marry. Blankenhorn also testified he wrote and agrees with the statement “I believe that today the principle of equal human dignity must apply to gay and lesbian persons. In that sense, insofar as we are a nation founded on this principle, we would be more American on the day we permitted same-sex marriage than we were the day before.”

Blankenhorn’s opinions are not supported by reliable evidence or methodology and Blankenhorn failed to consider evidence contrary to his view in presenting his testimony. The court therefore finds the opinions of Blankenhorn to be unreliable and entitled to essentially no weight.

Just so everyone knows…in this story, I’m editing the Judge’s opinion to remove various notes (example: “Tr 1900:13-18”) in order to make things more readable.

There were four defendants who were there by virtue of their being the “official proponents” of Prop 8 (other defendants included the Governor, State Attorney General, and certain Public Health officials and County Clerks, each in their administrative capacities); one of those was Hak-Shing William Tam, and, again, I’ll let the Judge handle this one:

Proponent Hak-Shing William Tam testified about his role in the Proposition 8 campaign. Tam spent substantial time, effort and resources campaigning for Proposition 8. As of July 2007, Tam was working with Protect Marriage to put Proposition 8 on the November 2008 ballot. Tam testified that he is the secretary of the America Return to God Prayer Movement, which operates the website “1man1woman.net.” 1man1woman.net encouraged voters to support Proposition 8 on grounds that homosexuals are twelve times more likely to molest children, and because Proposition 8 will cause states one-by-one to fall into Satan’s hands. Tam identified NARTH (the National Association for Research and Therapy of Homosexuality) as the source of information about homosexuality, because he “believe[s] in what they say.”. Tam identified “the internet” as the source of information connecting same-sex marriage to polygamy and incest.

(The links were not part of the original text.)

The Judge referred specifically to a letter Tam sent to the “friends” of his website during the Prop 8 fight which really shows what these folks are thinking:

“This November, San Francisco voters will vote on a ballot to ‘legalize prostitution.’ This is put forth by the SF city government, which is under the rule of homosexuals. They lose no time in pushing the gay agenda —— after legalizing same-sex marriage, they want to legalize prostitution. What will be next? On their agenda list is: legalize having sex with children * * * We can’t lose this critical battle. If we lose, this will very likely happen * * * 1. Same-Sex marriage will be a permanent law in California. One by one, other states would fall into Satan’s hand. 2. Every child, when growing up, would fantasize marrying someone of the same sex. More children would become homosexuals. Even if our children is safe, our grandchildren may not. What about our children’s grandchildren? 3. Gay activists would target the big churches and request to be married by their pastors. If the church refuse, they would sue the church.” (as written)

You can gain more insight into Tam’s thinking from his own trial testimony. Again, from the opinion:

Tam supported Proposition 8 because he thinks “it is very important that our children won’t grow up to fantasize or think about, Should I marry Jane or John when I grow up? Because this is very important for Asian families, the cultural issues, the stability of the family.”

Are these the views of just one very disturbed citizen, caught up in hyperbolic campaign frenzy?

Apparently not…because here’s what the Catholic Church was saying a year after the Prop 8 vote:

Catholics for the Common Good, Considerations Regarding Proposals to Give Legal Recognition to Unions Between Homosexual Persons, Excerpts from Vatican Document on Legal Recognition of Homosexual Unions (Nov 22, 2009): There are absolutely no grounds for considering homosexual unions to be “in any way similar or even remotely analogous to God’s plan for marriage and family”; “homosexual acts go against the natural moral law” and “[u]nder no circumstances can * * * be approved”; “[t]he homosexual inclination is * * * objectively disordered and homosexual practices are sins gravely contrary to chastity”; “[a]llowing children to be adopted by persons living in such unions would actually mean doing violence to these children”; and “legal recognition of homosexual unions * * * would mean * * * the approval of deviant behavior.”

Plaintiff’s witnesses, without exception, were found to be credible, and among those was Dr. Gary Michael Sagura, a Stanford University Professor of Political Science:

“[T]he American public is not very fond of gays and lesbians.” Warmness scores for gays and lesbians are as much as 16 to 20 points below the average score for religious, racial and ethnic groups; over 65 percent of respondents placed gays and lesbians below the midpoint, below the score of 50, whereas a third to 45 percent did the same for other groups. When “two-thirds of all respondents are giving gays and lesbians a score below 50, that’s telling elected officials that they can say bad things about gays and lesbians, and that could be politically advantageous to them because * * * many parts of the electorate feel the same way.” Additionally, “the initiative process could be fertile ground to try to mobilize some of these voters to the polls for that cause.”

“[Proponents’ expert] Dr Young freely admits that religious hostility to homosexuals [plays] an important role in creating a social climate that’s conducive to hateful acts, to opposition to their interest in the public sphere and to prejudice and discrimination.”

“[T]he role of prejudice is profound. * * * [I]f the group is envisioned as being somehow * * * morally inferior, a threat to children, a threat to freedom, if there’s these deeply-seated beliefs, then the range of compromise is dramatically limited. It’s very difficult to engage in the give-and-take of the legislative process when I think you are an inherently bad person. That’s just not the basis for compromise and negotiation in the political process.”

As the Judge notes, all this hating has had an effect on actual crime and violence:

“[O]ver the last five years, there has actually been an increase in violence directed toward gay men and lesbians”; “gays and lesbians are representing a larger and larger portion of the number of acts of bias motivated violence” and “are far more likely to experience violence”; “73 percent of all the hate crimes committed against gays and lesbians also include an act of violence * * * we are talking about the most extreme forms of hate based violence”; the hate crimes accounted for “71 percent of all hate-motivated murders” and “[f]ifty-five percent of all hate-motivated rapes” in 2008; “There is simply no other person in society who endures the likelihood of being harmed as a consequence of their identity than a gay man or lesbian.”

So what can we make of all this?

How about this: there’s a community of people who feel that Teh Gay poses an imminent danger to their marriages, their children, and their way of life—but when it comes time to actually explain why, in a court of law…they can’t offer a bit of evidence, except to say “it’s on the Internet” or “because God told me so”.

In the meantime, the group who isn’t actually a threat to anybody is the group most likely to be targeted for violent attacks—because some people are just so sure they’re such a threat to our marriages, our children, and The Good Ol’ American Way.

Political compromise is not likely—and political courage isn’t either, which may be why there’s still so much “not asking” and “not telling” going on these days.

Whether this opinion is upheld or not, its deeper truths remain for all to see; I’ll close today’s discussion with a deeper truth of my own:

If you belong to a political or racial minority…or if you’re a “plain old White American”, facing the prospect of soon becoming a minority group…you better figure out, and quickly, that those same forces of prejudice you’re directing at these people can be turned against you, too (as they were, against the Chinese, not so very long ago, and as they are, against Blacks and Hispanics and Arabs, to this very day), just as soon as it’s convenient for the political needs of another.

The reason we fight prejudice isn’t just to protect the group being affected…but to protect us all from the people who will manipulate this stuff for their own use—and if you don’t think the fear of The Gay Baby Molester, and the Scary Hispanic Border Jumper, and the New Black Panthers isn’t being used by Conservatives, right now, to keep you from thinking about the problems they created as November draws nigh…well, then, Gentle Reader, you’re missing out on Politics 101.

 

A Few Quick Words About Small Government May 22, 2010

We don’t have a lot of time for a big discussion today, but I wanted to take a second and talk about basic Federal Government economics as they apply to Rand Paul.

It is his stated vision to reduce the size of Government…and it is an undeniable reality that the vast majority of the Federal Budget is focused on only a few areas of spending.

Today, we’ll quickly run through that economic reality, and we’ll challenge Dr. Paul to tell us where he stands.

So it’s about as basic as this: the four biggest items in the budget are Medicare/Medicaid, Social Security, the Department of Defense budget, and interest on the Federal debt.

Those four items are 80% of the total 2011 budget.

What does that mean?

That means you can get rid of every other thing that Government does–no more people overseeing oil drilling, no food inspections, or border security, no FBI or ATF or DEA or CIA, or OSHA or MSHA, no National Guard or air traffic control or Coast Guard or NASA…or Department of Agriculture or food stamps, either–you can get rid of all of it, and government will still be 80% of what it is today.

And that means that the only way you can really make the Federal Government smaller…is to cut one or more of those four core activities that Government is performing.

So which one will it be, Dr. Paul?

Are you against Medicare and Medicaid?
Should it be ended today?

What about Social Security?
Are you ready to tell Kentucky voters that Social Security should end, today?

Are you ready to tell Kentucky voters that you do not believe that the US should be the world leader in military technologies?

Do you think China should be the preeminent military power?

Let’s get these questions in front of Dr. Paul, and even as he tries to dodge questions about the right of Woolworth’s to keep its lunch counter white, let’s make him face these questions as well…which are neither abstract nor obscure.

 

On Judicial Empathy, Or, Random Roadblocks Aren’t Annoying. Really. May 7, 2009

So a Supreme Court justice that hardly anyone noticed has announced his retirement and all of a sudden the lips of The Experts are all a-flutter with the word “Empathy”.

President Obama reports he wants his nominee to have it; and Republicans are convinced that the word is a secret code for something that eventually ends in the death of free speech, massive roundups of guns by the Secret United Nations World Police, and the Internment Of All The White People In Reeducation Camps Run By Americorps And ACORN And Gay People Who Want To Marry And Are Funded By George Soros.

It is suggested that Evil Activist Judges will trample the Constitution as they create Law out of whole cloth; and that only those who interpret the Constitution just as it was written can bring the proper attitude to the Court.

It sounds like somebody needs to come along and provide a couple of cogent thoughts about this whole empathy thing…and lucky for you, Gentle Reader, we have before us today specific examples of how the quality of empathy can express itself in Court Doctrine.

So right off the bat, a few words about how cases are interpreted by the Supreme Court are in order:

A lot of the talking heads on the tee-vee frame the Court’s job as one of basically hearing the arguments in a case, reviewing the record, and deciding whether some action of Government violates someone’s constitutional rights.

That framing ignores two huge elements of the Court’s job: resolving the conflicts between the protected rights of two groups of private citizens (for example, does the right of all citizens to have access to the “public square” for purposes of political campaigning override the right of shopping center owners to control who has access to their private property?)…and creating rulings that attempt to discern what the mood or motivation of the public might be regarding aspects of potential Court Doctrine (for example, does a particular item of pornography violate “prevailing community standards”?).

The obvious example of how all this can play out might be found in the way the Court saw things when they ruled in Plessy v Ferguson, followed later by Brown v Board of Education; in which the Supremes first ruled that “separate but equal” was just fine and then ruled it wasn’t fine after all. Lots of others will examine these cases in detail, so, instead, we shall take a different tack.

The Fourth Amendment, in requiring that searches not be “unreasonable” and that warrants be justified by probable cause, guaranteed that Justices would forever be required to interpret without clear definitions to guide them.

Let’s now examine how “empathy’ has affected those interpretations.

If you are driving north from San Diego to Los Angeles…and you’re not a Marine…you’ll be inspected by Customs and Border Protection officers manning an immigration checkpoint on I-5. It’s possible that you might be directed to a “secondary inspection” area for a search of the contents of your vehicle, based on nothing more than the hunch of the Inspector on duty.

In 1975, the Court, showing one kind of empathy, unanimously ruled that:

“The Fourth Amendment [is] held to forbid Border Patrol officers, in the absence of consent or probable cause, to search private vehicles at traffic checkpoints removed from the border and its functional equivalents…”

United States v. Ortiz, 422 U.S. 891

However, Chief Justice Burger, who generally joined in the concurrences of the other Justices, had his own “empathetic” point of view:

“Like MR. JUSTICE WHITE, I can, at most, do no more than concur in the judgment. As the Fourth Amendment now has been interpreted by the Court, it seems that the Immigration and Naturalization Service is powerless to stop the tide of illegal aliens — and dangerous drugs — that daily and freely crosses our 2,000-mile southern boundary….Perhaps these decisions will be seen in perspective as but another example of a society seemingly impotent to deal with massive lawlessness.”

Amado Martinez-Fuerte, who had been arrested at the same checkpoint, probably thought that the Court would continue to see things as they had in 1975…but by 1976, the Court no longer felt as empathetic towards the concept that consent or probable cause…or even reasonable suspicion…was required for vehicle searches as they had the year before:

“To require that such stops always be based on reasonable suspicion would be impractical because the flow of traffic tends to be too heavy to allow the particularized study of a given car necessary to identify it as a possible carrier of illegal aliens.”

United States v. Martinez-Fuerte, 428 U.S. 543

This ruling is particularly significant in that it allowed the checkpoint to operate under a general “warrant of inspection” (a device usually used only to allow building inspections and the like), and for the evidence obtained there to be admissible against individuals in criminal trials.

However, the plain text of the Fourth Amendment seems to take a different view, stating that:

“…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.”

By this time, Thurgood Marshall had left the Court (his empathy demonstrated perhaps best by the fact that in 1954 he had argued—and wonBrown v Board of Education before the Supreme Court); and the new Court ruled 7-2 in favor of the Government’s position in Martinez-Fuerte.

You’ll recall that we discussed the fact that the Court often has to determine the public mood. Here’s a very specific example:

The Court, in deciding that the immigration checkpoint was not an “unreasonable” search, felt no empathy toward the idea that being stopped every day would bother any commuter who was legally using I-5 several days a week, nor to the concept that the delay of legal commercial traffic would be bothersome. Their sole concern was that the motorist would view the checkpoint as “legitimate”:

“Routine checkpoint stops do not intrude similarly on the motoring public. First, the potential interference with legitimate traffic is minimal. Motorists using these highways are not taken by surprise as they know, or may obtain knowledge of, the location of the checkpoints and will not be stopped elsewhere….The regularized manner in which established checkpoints are operated is visible evidence, reassuring to law-abiding motorists, that the stops are duly authorized and believed to serve the public interest. The location of a fixed checkpoint is not chosen by officers in the field, but by officials responsible for making overall decisions as to the most effective allocation of limited enforcement resources. We may assume that such officials will be unlikely to locate a checkpoint where it bears arbitrarily or oppressively on motorists as a class. And since field officers may stop only those cars passing the checkpoint, there is less room for abusive or harassing stops of individuals than there was in the case of roving-patrol stops…”

(A quick Fun Fact: the location of the checkpoint near San Clemente appears to have been chosen specifically because it allows the stopping of virtually all traffic between San Diego and Los Angeles. You might think setting up a checkpoint to stop all traffic is a bit arbitrary…and I would agree with you. The Court, obviously, did not.)

The ruling in Martinez-Fuerte also does not display empathy with the Defendants’ assertions that being ordered to “Secondary Inspection” is intrusive…even if there for no reason at all to suspect the vehicle–or even if the reason for the stop is entirely race-based:

“The defendants arrested at the San Clemente checkpoint suggest that its operation involves a significant extra element of intrusiveness in that only a small percentage of cars are referred to the secondary inspection area, thereby “stigmatizing” those diverted and reducing the assurances provided by equal treatment of all motorists. We think defendants overstate the consequences. Referrals are made for the sole purpose of conducting a routine and limited inquiry into residence status that cannot feasibly be made of every motorist where the traffic is heavy. The objective intrusion of the stop and inquiry thus remains minimal. Selective referral may involve some annoyance, but it remains true that the stops should not be frightening or offensive because of their public and relatively routine nature. Moreover, selective referrals – rather than questioning the occupants of every car – tend to advance some Fourth Amendment interests by minimizing the intrusion on the general motoring public…

… Thus, even if it be assumed that such referrals are made largely on the basis of apparent Mexican ancestry…we perceive no constitutional violation…As the intrusion here is sufficiently minimal that no particularized reason need exist to justify it, we think it follows that the Border Patrol…officers must have wide discretion in selecting the motorists to be diverted for the brief questioning involved.”

And with that (and a few cases to supplement the concept), the idea that the police require an actual reason to stop people and then conduct searches and seizures has gradually faded into a quaint anachronism of history.

So where does all this leave us?

Well, how about this: it leaves us more aware of the fact that there are rarely “simple” interpretations of the Constitution. Rather than just relying on the plain text of the document, the Justices, using the sense of empathy they’ve developed throughout their lives, interpret and create new law in each and every case.

It should leave us more aware that the arguments made by those who support “strict constructionists” for the Court reflect less of a desire to remain pure to the principles of the Constitution, and more a desire to advance very specific, and often radical, policies that favor Government over the People who are supposed to be its master—policies that are often based more on a sense of fear than an appreciation of the strength of the system their new policies seek to “save”.

Mr. Obama is absolutely correct in seeking a Justice with “empathy”.

Let’s just hope the one he picks has the kind of empathy that, for a change, advances civil liberties, instead of sending them to the sort of “Guantanamo Chainsaw Massacre” that Justice Scalia finds so in keeping with his sense of empathy.

Warning—commercial message ahead: I’m competing for a Netroots Nation scholarship, and I could use your support. Just head on over to the Democracy for America website, click on the “Add your support” link under “Grassroots Supporters”, and offer a word or two…and with that, thanks very much, and we return you to your regular programming.