Civil Rights in America 101
CIVIL RIGHTS
This term constitutes a rather widespread range of privileges that were specified by the writers of the Constitution, as well as subsequent amendments. Basically, an American’s civil rights include those of free speech and expression, the right to own property and initiate civil action in court, the right to due process of law, protection against illegal searches and seizures, equal opportunities in education and the workplace, the ability to freely travel and live wherever one wants, and the right to participate in elections and the democratic process. Although many of these rights were restricted or even outlawed at certain points in our history, over time many of them have been redressed: outlawing slavery, giving women the right to vote, and the Civil Rights Act. The history of the United States has been one of continuous movement forward in extending rights. At least until recently. In the past five years the basic civil rights of free speech and expression have been legally curtailed; protections against search and seizure have been narrowed; and a movement is still afoot to deny rights to people based upon nothing more than the gender of the person with whom they engage in sexual conduct. The leaders of this particular movement have been conservatives and Republicans who once again prove that they consider the private sexual acts of consenting adults to be a worse crime than murder.
THE RIGHT OF PRIVACY
The Constitution of the United States does not expressly include a provision guaranteeing the right to privacy. However, most Constitutional scholars throughout American history have interpreted the rights extended by the First Amendment (free speech, freedom of press, etc.), the Fourth Amendment (protection against searches and seizures) and the references in the Ninth Amendment to “other rights” to imply a right to privacy. In addition, court rulings throughout the years have created a series of precedents protecting privacy. Perhaps the strongest argument in favor of the right to privacy is that a former President of the United States was facing impeachment in part because of his illegal surveillance activities. However, this implied right has come under attack in the past few decades. Presidents Reagan, George H.W. Bush and George W. Bush nominated to the Supreme Court judges who both publicly and judicially challenged the expectation to a right privacy by American individuals, while at the same time judicially upholding the right to privacy by American corporations. Both Justice Antonin Scalia and Antonin Scalia, Jr. -also known as Clarence “Love that Porn!” Thomas-have consistently voted against any right to individual privacy since their ascension to the court.
CHECKS AND BALANCES
This component is fundamental to ensuring that democracy remains intact and doesn’t devolve into totalitarianism. The way it works in America is that each branch of government (executive, legislative, judicial) has a certain amount of influence on the agenda of the others and can therefore be used to place an obstacle in the path of overweening ambition by any one or combination of two of the others. A simple example would be that even if Congress passes a law, the President can veto it. But that veto can be overridden providing there are enough votes in Congress in support of the law. But even if the Congress and the President both approve of the new law, it could still be struck down by the judicial branch for being unconstitutional. (Think in terms of outlawing flag burning, which is a violation of the First Amendment’s guarantee of free speech).
The problem is that our system of checks and balances doesn’t operate in a vacuum free from political influence. Part of the problem-reminiscent of the how the Electoral College skews the will of the people-is that the majority party controls the House and Senate, regardless of the size of that majority. In other words, it doesn’t matter whether the Democrats have a majority of one Senator, or the Republicans have a majority of 50 Congressmen, the Dems will control the Senate and the GOP will control the House. By control, I mean that all Committee Chairmanships will go to members of the majority regardless of whether he has more seniority than a member of the minority party on the same committee. Control also means controlling the agenda, which bills reach the floor, and potentially having the deciding vote on simple majority votes. Further lessening the power of checks and balances occurs if the Senate is controlled by the same party as the President. Since it is the President who nominates judges, the judicial system is potentially further eroded by being stacked with political appointments rather than qualified judicial minds. Because the power structure of American politics is based on party loyalty over everything else, the chances of a Senate run by the same party as the President ever seriously challenging his nominees is almost non-existent. The recent case of the GOP standing up to Bush’s appointment of Harriet Miers is the exception to the rule. Actually, the Miers case contains so many inversions of expectations that it already seems more like an opium dream than reality. When the executive and legislative branches are in the hands of one political party, the judicial branch becomes little more than an extension of that philosophy.
PROBABLE CAUSE
The Constitution protects against unwarranted search and seizure, but allows for these in cases where there is probable cause. This definition basically comes down to whether law enforcement officials have a reasonable reason to believe that a crime has been committed. Of course, one man’s reasonable is another man’s violation of rights. Of course, the breadth of probable cause has been widened considerably since 9/11. The Patriot Act and the war on terror is daily being used to investigate crimes only tangentially-if at all-connected to terrorism. Probable cause has been used to justify wiretapping and surveillance of Americans without benefit of a court-ordered warrant. In fact, probable cause for the Bush administration has really come to mean nothing more than “better safe than sorry.” In other words, when weighing civil liberties against security, it’s better safe than sorry. After all, it doesn’t really hurt to spy on someone since they’ll never know unless they’re proved guilty.
SEARCH WARRANT
A search warrant must be authorized by either a judge or magistrate. The warrant is official authorization for law enforcement officers to search a location or individual in pursuit of evidence of an offense. They may then seize the evidence for use in trial. Even though we’ve all seen this process carried out in thousands of movies and television episodes, what most people fail to realize is that getting a warrant is really incredibly easy. The officer has to prove probable cause, which as we saw is not exactly severely restricted. In fact, the probable cause can stem from hearsay evidence, which is nothing more than information heard by one person about another person. In other words: gossip. A search warrant can also be gotten as a result of testimony heard over a phone. In addition, most jurisdictions are well known to contain at least one judge who hardly ever denies authorization for a warrant. Now since it’s obvious not the most incredibly difficult feat in the world to obtain a warrant, why is it that the Bush administration has consistently broken laws by engaging in surveillance without first obtaining a warrant? Even if you accept their argument that they weren’t breaking any laws, why take a chance on the appearance of impropriety when you didn’t need to?
Perhaps because of the Constitutional requirement for legal searches and seizures. The Constitution requires that all searches must be not only reasonable, but specific. In other words, if the probable cause is based on the belief that the person being searched committed a murder with a four feet long sword, then officers are not allowed to open one foot long dresser drawers to look for that sword. Because, obviously, the weapon couldn’t fit inside. On the other hand, if it was known that the person committed the crime with the sword while a pair of shorts that said “Princess” on the back, then they could legally open drawers in search of those shorts. The search warrant requires specificity in terms of what is being searched for and where it is being searched. Pres. Bush declare war against an abstract noun that is purposely vague and nebulous. When conducting a war on terror, it’s very difficult to narrow down what you’re searching for because you simply don’t know. So even though Bush and company could clearly have gotten a warrant easily enough if they detailed what they were looking for, they chose to bypass the necessity for specificity.
