Saturday, November 26, 2005

Timid Liberals and Civil Liberties

On November 15th, 2001 a New York Times columnist wrote :

Misadvised by a frustrated and panic-stricken attorney general, a president of the United States has just assumed what amounts to dictatorial power to jail or execute aliens. Intimidated by terrorists and inflamed by a passion for rough justice, we are letting George W. Bush get away with the replacement of the American rule of law with military kangaroo courts.”

That columnist was none other than William Safire. The very same William Safire who shamelessly venerated Nixon, glorified Reagan, irresponsibly raised suspicions that President Clinton murdered Vince Foster, and spent his final years as the Times senior columnist justifying Bush’s folly in Iraq. While liberals ducked and covered after 9/11 he was one of the few to stand up to the far right and demand no further encroachments upon our civil liberties. Indeed, during his tenure at The New York Times, Safire was a stalwart defender of privacy rights and frequently chastised Big Brother conservatives for going too far. And he’s far from alone in the Republican Party.

Since 1968 the Republican Party has successfully appealed to law and order conservatives, mobilized a religious fundamentalist constituency that believes government should enforce “values” and simultaneously persuaded civil libertarians that the GOP is their natural home. The message has been singed into our heads that if you don’t want the government regulating your personal choices then the GOP is home. If you’re security conscious and believe civil liberties should be sacrificed to reduce crime and feel safe the GOP is also your home. Finally, if your religious faith compels you to believe that abortion is murder and homosexuality a sin, there is no better home than the Republican Party.

It is time for Democrats to get off the deck and stop the Republicans from enjoying a free ride. Why not aggressively drive a wedge between civil libertarians and social conservatives? In a brilliant Op-Ed piece to the New York Times, Dan Savage suggested that Democrats propose an amendment to the Constitution explicitly codifying the right to privacy.

We’re constantly patronized by conservative strict constructionist nonsense that the Constitution never mentions privacy. Well, as Mr. Savage writes, if it’s OK for Republicans to put forward an amendment about banning homosexual marriage, then it makes perfect sense for Democrats to rally libertarians behind their banner by proposing a right to privacy amendment. Politically it would completely knock the Republicans off balance and let civil libertarians know that Democrats are truly on their side.

The stakes are far greater than the Democrat’s electoral viability. By now many Americans have heard about Supreme Court Justice nominee Samuel Alito’s application to work for the Justice Department in 1985. Typically, the media, liberal special interest groups such as NARAL, People for the American Way, and NOW focused on his stated opposition to abortion. However, far more alarming was Judge Alito’s position that he believed ''very strongly'' in ''the legitimacy of a government role in protecting traditional values.'' That ought to trigger alarm bells in every libertarian’s brain. I know reading it gave me a severe jolt.

Will the Democrats merely punch themselves out over abortion while Alito does a rope a dope about his respect for precedent? Or will they press him for his views on technology and the right to privacy? For example, what are Alito’s views about brain finger printing and the future right to privacy? This is not science fiction. In a mere twenty years, current Chief Justice John Roberts and nominee Samuel Alito may preside over cases about whether a search and seizure is justified after a functional magnetic resonance imaging scan of one’s brain waves. Perhaps their Supreme Court will decide whether such a scan is admissible in trial and can be used as a high tech polygraph. I wonder if Senators Schumer and Biden who sit on the Senate Judiciary Committee have thought about the right to privacy beyond abortion. Do they understand that by their pro-choice abortion centric focus to every judicial nomination they are neglecting valid constitutional issues? Do they understand that they are squandering an opportunity to persuade libertarians that the Democratic Party is a more hospitable home?

I don’t mean to minimize the importance of reproductive rights. In 1215 the Magna Carta famously declared that a man’s home was his castle. Now in the year 2005 too many Republicans believe that a woman is not entitled to autonomy over her own body. Today, pharmacists are refusing to sell women morning after pills for example and Republicans are pushing within state legislatures to allow any pharmacist this right. Certainly, reproductive rights, as illustrated in Griswold vs. Connecticut are a vital component of civil liberties. Democrats should never stop standing up for them. But their sole focus on abortion has not worked and allowed the Republicans to encroach upon a broad range of liberties.

For example, as Democrats flail away on abortion the Bush Administration is currently waging war on the Constitutional right of habeas corpus – a principal in constitutional law that a U.S. citizen may not be indefinitely detained without a trial. The right to a speedy and public trial is guaranteed in the sixth amendment to the U.S. Constitution. The Bush Administration has detained Jose Padilla, a U.S. citizen without a trial since 2002.

The Bush Administration alleges that Mr. Padilla is a terrorist and arbitrarily labeled him an “enemy combatant” who is not eligible for due process of law. Perhaps the Bush Administration has valid evidence that Mr. Padilla is a terrorist. Their conduct in this matter is nevertheless profoundly disturbing. Mr. Padilla’s lawyers have appealed his case to the Supreme Court and the stakes are enormous. If they rule against Mr. Padilla, future Presidents will have the power to detain citizens indefinitely without trial. Can we always be certain that the Executive Branch will apply such power judiciously? Or will they simply detain people who hold political views they don’t like?

And where are the Democrats? Are they standing up for due process of law? Or will they continue to be timid, fearful that Republicans will portray them as soft on the war on terror? Will civil libertarians become disenchanted with the Republican Party? Where will they go if the Democrats remain cowardly? Memo to the Democratic Party: lead the fight to protect civil liberties.


pansophia said...

While I agree with almost this entire post, I'm against adding a Right to Privacy to the constitution. I do believe a body of law should be developed to protect privacy, and upholding the idea of a right to privacy is important to many Democratic ideals such as a woman's right to choose an abortion.

I'm personally first in line for paranoia when it comes to cell phone cameras creeping under skirts, satellites staking out my bedroom window, and the CIA having a good laugh over my email. And this is before we get to people stealing my identity to write bad checks. I constantly feel my privacy is being invaded. As a society, we need to respond to this situation.

However, if we add a right to privacy to the Constitution, it will be posed against the first amendment right to free speech. Corporations will abuse that to underwrite secrecy and avoid the law. They will use it to suppress whistleblowers. This isn't just idle speculation: you know I have the direct experience to guarantee that's what will happen.

The Constitution is about the guarantees for our freedom, not the limits to it. It's better to do the limiting through the regular legislative process, where it's easier to change laws that turn out out to be a mistake.

Robert Ellman said...

Pansohia -

I appreciate your views. Indeed, your caution about amending the Constitution is quite understandable. In politics however, sometimes objectives are best achieved by pushing for things that won't pass. Symbolism counts for a lot.

For example conservatives pushed for a constitutional ban on gay marriage even though it will never achieve the broad support necessary for a Constitutional amendment.

I doubt a privacy amendment could ever pass but it just might serve as a rallying point for libertarians and stiffen the spine of the Democratic Party.

If it does pass I think more protection is provided not less. I know about your experience at the hands of corporate vindictiveness. But I don't see the correlation with a Right to Privacy Amendment conflicting with free speech. Ultimately, it depends on the language.

The Founding Fathers were truly products of the Enlightment. They understood that society would change and that new safeguards might be necessary to codify in the Constitution. Given the way technology is progressing this I believe is an issue worth debating and exploring. You raise legitimate issues of concern. While I don't see the linkage between a Right to Privacy Amendment and free speech and potential harm to whistle blowers - others may. I'm curious as to whether others share you views. The opinion of a Constitutional lawyer would be especially helpful.


pansophia said...

//Symbolism counts for a lot.//

Symbolism does count for a lot, and it often counts for the wrong thing. We don't need to use the Constitution for brand building.

//conservatives pushed for a constitutional ban on gay marriage//

Excellent example: the symbolism of changing the Constitution is probably a significant part of their argument. The problem with opening the door to changing the Constitution is that all parties get a shot at it.

//Right to Privacy Amendment conflicting with free speech. //

It conflicts the minute a corporation or a powerful person suppresses dissent or punishes the dissenter based on violation of privacy. In my own case, I was punished for *normal* Internet behavior because a violation of privacy was discovered *after the fact*. The corporation that wanted to suppress me screamed "Privacy Villain!!!" and all my civil liberties were immediately suspended. My First Amendment rights were ignored. I was "box office poison" to all the political representatives who should have defended my rights. The symbol of Privacy trumped the First Amendment even without it being added to the Constitution. The situation probably would have been worse with a Constitutional amendment.

We've already made dissent a psychiatric disorder:

Google Oppositional Defiant Disorder - all you will see is testimonials and paeans to it's existence. You won't see the criticism of the concept at all. That's because ODD was awarded scientific status when it was included in diagnositic manuals. Nevermind that there's no physiological evidence of disease and the fact the amount of children who have it seems to contradict the idea of "abnormal". Because of the public's respect for the medical profession and technical manuals, ODD is now a "rallying point".

//They understood that society would change and that new safeguards might be necessary to codify in the Constitution.//

They also understood how important it was for the Constitution to remain minimal.

I know it's an uphill battle to get people to persuade people to oppose a Constitutional Right to Privacy. All the soundbytes and scare tactics are on the other side. But I've seen the consequences up close and personal. Maybe once other people have had to go through, people will start to see the problem.

Robert Ellman said...

Pansophia -

You raise important issues that need to be aired and debated. I'm curious as to how a Constitutional Lawyer would respond to your conserns and real life experience. I think it possible to codify safeguards but would definitely want to learn more.

Anyone reading this who happens to be a Constitutional Lawyer?


pansophia said...

//Constitutional Lawyer//

I want to hear from the Constitutional lawyer, too!

Robert Ellman said...

Pansophia -

One question I have for a Constitutional lawyer might be: is it possible to incorporate language in a Right to Privacy amendment that safeguards against the abuse of other liberties such as speech as you described?

I truly believe this country is engulfed in a civil liberties crisis that with technology will only get worse. A debate over a Right to Privacy Amendment may address issues that the body politic has swept under the rug - even if such an amendment isn't adopted. It could be that views such as yours might raise awarness about the plight of whistleblowers in the corporate world and result in safeguards for them.