Friday, May 27, 2005

Where does the Constitution give courts the right?

The latest outrage about our out-of-control judiciary is a federal judge's ruling on Wednesday that a private club in NYC is nevertheless still subject to NYC's smoking ban. Read it again: a judge says that a private club, meeting on its own private property, is still subject to a law that bans smoking in public places. Since when is private property a public place?

Even more pernicious to liberty and the Constitution is how Judge Victor Marrero phrased it: the members "have no fundamental constitutional right to smoke tobacco." Really now? Where in the Constitution do we have the right to breathe? Or cross the street? Where does the Constitution give Marrero the enumerated right to go to the bathroom? After all, with his ruling, he s*** on the Constitution and wiped his a** with the Bill of Rights.

I have a clue for you, judge: the Ninth and Tenth Amendments. You should read them sometime.
Amendment IX: The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people.

Amendment X: The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people.
What I don't understand is how the lawsuit reached the federal level at all. How does a federal court have any jurisdiction over a strictly New York City matter?

Do you see the tactics employed by these activist courts? Each one establishes a new, fairly minimal precedent that affects only a very few people. Recently a Michigan court ruled that an encryption on a suspect's computer can imply criminal intent, even though the court didn't say the police had found any encrypted files at all! Most people believe one of two things: such rulings affect only criminals, and even if not, you should have nothing to hide. Both could not be further from the truth. In what way am I being implicitly criminal for wanting to keep my personal, non-public papers in encrypted form?

The Supreme Court says there is a "constitutional right to privacy" for a woman to abort her third-trimester baby, in such a way that the doctor actually induces labor crushes it skull to kill it. But I, who am breaking no law and harming no one, have no "constitutional right to privacy" when it comes to encrypting my personal files? Don't I have the right to safeguard my data in case my computer is stolen? How about protecting it from law enforcement that might try to plant data? The reason itself doesn't even matter one bit.

Aren't we still "innocent until proven guilty," regardless of what our actions supposedly imply? Or are we becoming the police state embodied in Star Trek's Cardassian Empire, which convicts and sentences criminals before the trial? After all, Cardassian jurisprudence says, it's unfair to bring the innocent to trial -- so anyone brought to trial must be guilty.

The problem with our courts started in 1803 with Marbury v. Madison, which established the dangerous precedent of "judicial review," that the courts decide whether a law is or isn't constitutional. From there it degenerated into courts deciding what are "Constitutional rights." The Supreme Court has ruled that people have the right to burn the flag as "freedom of speech"; that women have the right to abort their babies as the "right to privacy"; that strippers can perform as "freedom of expression."

These "activist" courts, driven by a belief in a "living" and "flexible" Constitution, are hailed as being so concerned with rights. Then we have cases like Kelo v. City of New London, which show that courts don't care about real rights. They don't care about your right to private property, at least not when the government wants to force you to sell it to someone else. Courts are rarely anxious to protect your right to keep and bear arms, as secured by the Second Amendment, and criminals meanwhile obtain them any way they can.

Much of the Patriot Act violates the Fourth Amendment, which enumerates -- it does not grant -- the true right to privacy: "The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures." Today federal agents are empowered to seize your financial, library and medical records, needing only approval from the Foreign Intelligence Surveillance Court (a secret, completely unaccountable-to-the-people court with sealed records). Courts are so determined to protect your right to burn the flag, but not your right from the FBI to secretly wiretap your computer once they claim you're a terrorist. Ah, but the Patriot Act requires them to notify us? Sure, but its architects were smart enough to leave a loophole. Federal agents need only claim that you'll tamper with or destroy evidence, and then they can almost indefinitely postpone notification.

Keep your heads down and your powder dry.

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