As I’ve indicated before, I am strongly opposed to putting Samuel Alito on the Supreme Court, primarily because of his track record for being pro-government on criminal justice issues, and deferring to the executive branch when it comes to government versus individual power/rights. We do not need another voice on the Supreme Court willing (and eager) to weaken the Bill of Rights further.
At this point, I despair of anything preventing his successful installation on the Court. The Republicans appear to be anxious to continue their approach of sacrificing principle in favor of lock-step power. And the Democrats have apparently convinced themselves that they’re too weak to do anything about it.
One piece of Alito’s background stirred up the blogosphere a bit today — the situation of Alito’s ruling in the appeal of drug case that involved strip searching a young girl and warrant deficiencies. As I noted earlier, the case is actually a little more nuanced and complex than most bloggers have admitted, but the discussion today went beyond Alito and into the basic concept of the reason for 4th Amendment checks on governmental power, and the false notion of “criminal rights.”
The first part of this discussion came from Jonah Goldberg at National Review
I understand the need for following the procedural niceties, but as a plain moral common sense issue, if you are a drug dealer and keep drugs on the premises with your child, you get zero-point-zero sympathy from me if your kids are searched, warrant or no. It may be wrong for the cops to do it. But you are not a victim for choosing a life where you can rationally expect to expose your kids to far greater risks than a search by a polite cop. The kid’s a victim — of bad parents. [emphasis added]
Glenn Greenwald (a relative newcomer who I’ve really come to enjoy and admire recently) responded with venom:
If you can stomach it, let’s review this, because it really illustrates what is going on in our country. Constitutional safeguards guaranteed by the Bill of Rights are nothing more than what Jonah calls “procedural niceties.” While it would be nice and all if the Constitution were adhered to, “plain moral common sense” means that it’s actually unnecessary, even undesirable, to be restricted by such things.
After all, we’re dealing here with people whom the State says it suspects, but has not yet proven, are “drug dealers.” With those people (and, of course, with “suspected terrorists”), anything goes, even before a trial and without any due process of any kind. All of this can be done strictly on the Government’s say-so, even if the Constitutional “niceties” which exist to prohibit such behavior haven’t been complied with. “It may be wrong,” spits out Jonah, but we should do it anyway, because these people deserve it.
Atrios jumps in:
True, I suppose it’s quite outrageous when drug dealers do such things. But that didn’t, you know, happen in this case which is why we require warrants for such things. It’s why probable cause matters. It’s why Jonah needs to go back to 3rd grade civics so that he understands that we’re not a country of collective guilt and the fact that some bad guy somewhere stashed drugs on his kids does not mean we should grant agents of the state the right to strip search all kids, include Jonah’s own offspring, without warrants. Searching the premises, under someone’s bed, is not the same as lifting up a little girl’s skirt.
What country do these people want to live in? Jeebus. What the hell were we supposed tbe fighting the Cold War about again?
Jonah reponds a couple of times, including this item:
[…] And the wall between dictatorship and liberty does not stand or fall depending on whether or not drug dealers have extra legal manuevering room to hide drugs in the pants of their ten year old daughters. [emphasis added]
[…] But I reject the Dershowitzian tactic of claiming that an extremist view of procedural due process and the celebration of legal technicalities — wholly unimagined by the founders — makes you a stronger believer in the Constitution.
Though he claims otherwise, Jonah Goldberg’s statements put him in company with a disturbing group in this country that often act like the Bill of Rights was something the ACLU created in order to set criminals free. While Jonah doesn’t specifically mention it, some of his phrases — “zero sympathy,” “warrant or no,” “whether or not drug dealers have extra legal manuevering room,” “extremist view of procedural due process” — are in league with those who complain about people like me standing up for what they call ‘criminal’s rights.’
Well let me tell you — the only ‘criminal’s rights’ in the constitution are the 8th Amendment “guarantees” against cruel and inhuman punishment. All the rest are printed there to remind the government of the fundamental rights of people — of citizens of the United States — the guilty and the innocent.
People like Jonah see one scumbag get off because of “procedural due process,” and think the system is broken. And yet, it is the extreme care of holding to due process that sets our system of freedom apart. It says, “Yes, the job of the police is harder, and some scumbags may get off, but that’s the price of freedom — the price of a system that says a person is innocent until proven guilty — the price of a system that believes that an individual has the right to be secure in his or her person, house, papers, and effects.
So in effect, the extreme procedural due process, as it relates to our presumption of innocence and our freedom of self and possessions, is an essential part of that “wall between dictatorship and liberty.”