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The Supreme Court’s Dreadful Record on Freedom

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The Supreme Court heard oral arguments on the legality of the Affordable Care Act this past March. Several justices questioned whether a ruling against Obamacare would be “unconstitutionally coercive” to state governments that did not create health-care exchanges. The Supreme Court is sometimes hypersensitive about the authority of state governments when federalism issues are raised. But at the same time, the justices have rubber-stamped a vast increase in government coercion of private citizens.

For instance, the Affordable Care Act trounces freedom by giving the IRS the right to heavily fine persons who do not purchase federally approved insurance policies, in the process canceling millions of people’s insurance policies, entitling the Health and Human Services Department to outlaw many low-cost health-insurance options, and compelling individuals and businesses to subsidize other people’s abortions and contraception.

Unfortunately, that is typical of the oppressive practices the Supreme Court has countenanced in recent decades.

In 2005, the Supreme Court blessed the condemnation of private homes under eminent-domain authority so local politicians could redistribute the land to favored businesses. The case of Kelo v. New London involved fifteen Connecticut homeowners who were objecting to government plans to seize their homes to turn over their property to a private developer. There was nothing wrong with the homes being seized — the government did not even attempt to allege blight. Instead, it was simply that the government had a comprehensive plan that it believed would provide more revenue for itself and more economic stimulation than permitting people to continue residing in their homes.

Justice John Paul Stevens, writing for the majority, declared that “public use” in the Fifth Amendment really meant “public purpose” — and, apparently anything that helps the government serves a public purpose. Stevens declared that even cases in which the government seizes one person’s land to directly give it to another private citizen could meet that standard: “Quite simply, the government’s pursuit of a public purpose will often benefit individual private parties.”

Stevens declared that the Court would avoid “intrusive scrutiny in favor of affording legislatures broad latitude in determining what public needs justify the use of the takings power.” Thus, the Court frowned upon examining the rationales or motives of politicians seizing private property — as if requiring evidence for the use of blunt force is “intrusive.” Justice Sandra Day O’Connor dissented in the Kelo decision, warning that “the specter of condemnation hangs over all property. Nothing is to prevent the State from replacing any Motel 6 with a Ritz-Carlton, any home with a shopping mall, or any farm with a factory.”

Expanding police power

Supreme Court decisions on asset forfeiture have helped police confiscate cars, cash, and other property from scores of thousands of Americans without a criminal conviction. In 1996, the Supreme Court upheld the seizure of an automobile jointly owned by a husband and a wife after the husband was caught with a prostitute on the front seat. The Clinton administration brief to the Supreme Court blamed the wife for her husband’s illicit use of the auto, claiming that she had not taken “all reasonable steps to prevent illegal use of the car.”

Chief Justice William Rehnquist based his pro-government decision heavily on an 1827 case involving the seizure of a Spanish pirate ship that had attacked U.S. ships. Rehnquist did not deign to explain the legal equivalence of piracy in the 1820s and prostitution in the 1990s. He ruled that since the property had been involved in breaking the law, there was no violation of due process in its seizure. He basically granted government unlimited power to steal: if it wants to “lawfully acquire” private property without compensation, all it needs to do is write more confiscatory laws. The nationwide epidemic of legalized looting became so embarrassing that Attorney General Eric Holder recently promised to curb the abuses.

In 1982, the Supreme Court upheld the authority of government agents to intrude onto private land without a warrant as long as they did not venture into areas where individuals were involved in “intimate activities” (i.e., nudist camps). U.S. Solicitor General Rex Lee, arguing the government’s position in the case, told the Court, “The posting of ‘No Trespassing’ signs, as a practical matter, gives a landowner little assurance that outsiders will not enter his property…. Nor does the existence of a fence surrounding an open field necessarily increase the expectation of privacy in that field. Fences around large areas of rural property are usually designed to mark a boundary or to keep animals in rather than to keep people out, and they pose little impediment to entry by a person…. [An] individual may lack a legitimate expectation of privacy in an area like a field, where private activities do not ordinarily take place, even if the field is private property.”

The Court’s decision made it clear that government agents could roam far and wide: “A thickly wooded area nonetheless may be an open field as that term is used in construing the Fourth Amendment.” The resulting “open fields” doctrine makes it practically impossible to convict a government agent of trespassing.

The Supreme Court has utterly failed to curb the power of police over average citizens. Instead, it has continually granted new powers to law enforcement. In 2001, it sanctified the arrest of a Texas mother whose only crime was that her child wasn’t wearing a seat belt during a short drive — even though Texas law did not authorize arrests for such offenses. The Supreme Court declared, “If an officer has probable cause to believe that an individual has committed even a very minor criminal offense in his presence, he may, without violating the Fourth Amendment, arrest the offender.” The Court explained that if arrests were limited only to offenses for which the statute book includes arrests as punishments, the result could be a “systematic disincentive to arrest.” Instead, the Court’s ruling created a systematic bias in favor of accosting and handcuffing citizens. The Court also worried that putting any limits on the police’s right to arrest people for petty offenses could result in “personal liability” for officers who make such arrests.

Justice O’Connor, in a stout dissent, warned that “such unbounded discretion carries with it grave potential for abuse.” O’Connor also mocked the Court majority for stressing that there was little evidence of “an epidemic of unnecessary minor-offense arrests.” The fact that governments did not keep statistics on such abuses somehow justified entitling government agents to commit more abuses. According to Capt. Steve Powell of the Colorado State Patrol, “Ninety percent of the cars out there are doing something that you can pull them over for. There are a jillion reasons people can be stopped — taillights, windshields cracked, any number of things.” Since almost everybody is violating some arcane government edict, the Court practically gave lawmen the prerogative to jail whomever they pleased.

Expanding arbitrary control

Supreme Court decisions have helped Congress and multiple presidents camouflage the arbitrary federal fiats that increasingly dominate Americans’ lives. The Court has granted federal agencies vast sway over private companies by pretending that racial hiring quotas are not coercive. Instead, they are merely “goals and timetables” — regardless of whether bureaucrats ravage companies that fail to hire and promote by race and gender.

In a 1982 case, Supreme Court Justice Stevens ruled that while a government hiring plan did severely discriminate against white teachers, the teachers’ injury was “not based on any lack of respect for their race.” This is a contemptible judicial sleight-of-hand: judging “equal rights” not by whether a government-enforced policy preserved neutrality but by whether the victims of discrimination felt stigmatized by their race. It is absurd to define coercion according to the supposed self-esteem of the victim, rather than the nature of the government action. It is like judging a government prohibition on a newspaper’s publication by whether a judge believes that the editors of the newspaper will feel that the censorship insults their intelligence, rather than by whether censorship occurs. In a 1987 decision written by Justice William Brennan, the Supreme Court upheld a discriminatory government hiring program because it did not “unnecessarily trammel the rights of white employees.” The Supreme Court has used the same phrase in other cases, implying that it is legitimate to trammel the rights of certain groups — as long as they are not “unnecessarily” trammeled. Naturally, the Supreme Court has never stooped to define how much trammeling is necessary and how much is too much.

The Court has turned a blind eye to almost all the civil-liberties abuses of the war on terror. It has done nothing to curb the Obama administration’s crackdown on journalists and whistleblowers. It has refused to accept any case challenging the Transportation Security Administration’s whole-body scanners that take explicit “birthday suit” photos of almost every airline passenger. Instead, the Court has often defined out of existence Americans’ Fourth Amendment right to be free from unreasonable searches.

Nine years after revelations that the National Security Agency was illegally commandeering Americans’ email and phone records, the Court has done nothing to curb an abuse far worse than the British “general warrants” that helped provoke the American Revolution. In a 2013 decision, the Court effectively absolved warrantless federal spying on citizens because the victims could not prove they had been spied on — a ludicrous precondition for objecting to a secret surveillance regime.

Even when the feds have clearly violated a statute such as the Anti-Torture Act, the Court either refuses to accept key cases or effectively grants immunity to all the officials involved in breaking the law. The court’s acquiescence makes it far easier for agencies to cover up outrageous conduct that would shock Americans if it was exposed.

America’s prisons are overflowing in part because the Supreme Court has objected to few of the 4,500+ criminal statutes Congress enacted. Thanks to the threat of ruinous mandatory minimum penalties, 97% of defendants plead guilty. As Justice Antonin Scalia noted in a 2012 dissent, the current system “presents grave risks of prosecutorial overcharging that effectively compels an innocent defendant to avoid massive risk by pleading guilty to a lesser offense.”

Does the Court believe that unlimited compulsion of citizens is okay but that any pressuring of state governments is a cardinal sin? If the Court saves Obamacare to avoid “unconstitutionally coercing” state governments, it will be another milepost on the Supreme Road to Serfdom. States’ rights are no substitute for individual liberty.

This article was originally published in the June 20115 edition of Future of Freedom.

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    James Bovard is a policy adviser to The Future of Freedom Foundation. He is a USA Today columnist and has written for The New York Times, The Wall Street Journal, The Washington Post, New Republic, Reader’s Digest, Playboy, American Spectator, Investors Business Daily, and many other publications. He is the author of Freedom Frauds: Hard Lessons in American Liberty (2017, published by FFF); Public Policy Hooligan (2012); Attention Deficit Democracy (2006); The Bush Betrayal (2004); Terrorism and Tyranny (2003); Feeling Your Pain (2000); Freedom in Chains (1999); Shakedown (1995); Lost Rights (1994); The Fair Trade Fraud (1991); and The Farm Fiasco (1989). He was the 1995 co-recipient of the Thomas Szasz Award for Civil Liberties work, awarded by the Center for Independent Thought, and the recipient of the 1996 Freedom Fund Award from the Firearms Civil Rights Defense Fund of the National Rifle Association. His book Lost Rights received the Mencken Award as Book of the Year from the Free Press Association. His Terrorism and Tyranny won Laissez Faire Book’s Lysander Spooner award for the Best Book on Liberty in 2003. Read his blog. Send him email.