Stripping a Supreme Court Decision of False Rhetoric

In the years since the Bill of Rights was set up, one major point of conflict has been between the narrow and broad interpretations of the first ten constitutional amendments. Advocates of the narrow interpretation tend to see the Bill of Rights as only imposing a set of very basic restrictions on the federal government. Historical figures who haven fallen into this category include Andrew Jackson, Jefferson Davis, Abraham Lincoln (still our greatest president), Woodrow Wilson, FDR, and Richard Nixon. Advocates of the broad interpretation see the Bill of Rights as greatly limiting the powers of the federal, state, and local governments in order to insure the greatest possible degree of civil liberties for Americans. Historical figures who have fallen into this category include Roger Nash Baldwin, Rose Wilder Lane, and William Douglas. The narrow Jackson-Nixon interpretation has recently been sustained in a Supreme Court decision. This decision rules that anyone can be strip searched upon arrest. To demonstrate the seriousness of this ruling, I feel the need to point out that this ruling includes people who have been arrested but not convicted, meaning that innocent people can be strip searched along with the guilty. The ruling also lumps in those accused of petty, non-violent crimes with those accused of assault, rape, or murder. Now, let’s get something straight. Article 4, Section 2, Clause 3 of the Constitution supported slavery, and those Americans such as Harriet Tubman and Thomas Wentworth Higginson who helped fugitive slaves were behaving both heroically and unconstitutionally. So I am not going to harp on why it’s supposedly important to follow everything in the document. My litmus test is natural, inalienable human rights. And that is why, regardless of the original intent or exact wording of the Bill of the Rights, I believe that the legal views of those in the broad interpretation camp should prevail. (As a side note, I am thinking of buying the book Legacy of Suppression: Freedom of Speech and Press in Early American History by Leonard Levy.) Government is not some benevolent deity that is always ready to help and needs only to be freed from restriction in order to do so. It is a necessary evil that exist to fulfill a specific set of functions and otherwise leave us alone. It needs strict limits on its power to prevent our freedoms from being abridged. Let’s say, for instance, that I was accused of having unpaid parking tickets and taken to jail. Failure to pay parking tickets is not a violent offense. There would be no reason to be extremely paranoid that I was carrying a knife. It’s certainly possible that someone who fails to pay parking tickets is also violent. But the existence of a possibility is not the same as probable cause. Therefore, it would be unfair to subject me to a strip search. Furthermore, what if I was innocent? That would mean that I had been strip searched because of a petty, non-violent crime that I did not even commit. Our justice system is supposed to be set up in such a way that we are presumed innocent until proven guilty. Strip searches without probable cause for those accused but not even necessarily guilty of petty, non-violent crimes dispenses with the presumption of innocence and replaces it with a presumption of guilt. I have to seriously wonder if the five judges who ruled in favor of law enforcement in this case have ever been strip searched. I haven’t, but I have the empathy required to guess that it is highly degrading. That is why it should only be used in emergencies. One thing I find interesting about this case is the statement by Justice Anthony Kennedy that the Supreme Court cannot second-guess the decisions of corrections officers. By this logic, Miranda v. Arizona should be reversed, since it “second-guesses” police by preventing them from arresting someone without reading them their rights. Now, don’t get me wrong. Compared with some of my fellow civil libertarians, I am actually willing to give police the benefit of the doubt a lot of the time. I feel that alleged cases of police brutality are often quite ambiguous, and I am concerned that police officers are often blamed for larger societal problems like racism, crime, child abuse, and domestic violence. This is why, despite being a proud member of the ACLU, I oppose the organization’s proposal for a police review board composed of civilians. Still, I do not subscribe to the idea that police should be allowed to do whatever they think is necessary to stop crime. I want to see a society with a strong, effective police force. What the five conservative judges on the Supreme Court are advocating has the makings of a police state. The former is necessary and good. The latter is intolerable. This recent ruling once again gives lie to the claim that conservatives stand for small government. Allowing corrections officers, who are government employees, to strip search whenever they please represents a victory for big government, not small government. And it was not liberal judges like Ruth Bader Ginsburg and Stephen Breyer who voted on the side of big government. It was conservatives. Liberals voted for small government as, in fact, true liberals often do. Yep. Except for bans on gays marrying, adopting, or serving openly in the military, border fences, the War on Drugs, the Patriot Act, criminalization of flag burning, display of religious symbols by government officials on taxpayer funded property, allowing government employees in taxpayer funded public schools to initiate student prayer, allowing the government to execute or water board people, and anti-obscenity laws, those conservatives sure do support smaller government. But all joking aside, I doubt anyone seriously thinks that conservatives actually believe in small government. Part of the reason why both conservatives and progressives frequently abridge civil liberties is that many people have an idea that freedom is a means to an end, not an end in and of itself. Unfortunately, if freedom is only useful for the greater good and does not have any intrinsic value, fundamental rights like freedom of speech can be trampled on as soon as it is decided that doing so will be best for society. This was part of the thought process behind essentially banning criticism of the government during World War I. It was part of the thought process that led five judges to rule in favor of allowing warrantless strip searches in any situation. And unless this thought process changes, we may be headed for disaster.


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