Tuesday, April 30, 2013

Civil Liberties After Boston ...

... is the title of a piece written by Richard Epstein  who apparently is willing to sacrifice freedom for a little security, as he thinks. Epstein writes:
In the aftermath of the terrorist bombing—no lesser word will do—at the Boston Marathon, a major debate has broken out over the proper law enforcement procedures in two key areas: general surveillance and targeted searches. Many insist that a general right to privacy should limit the first, and that concern with racial and ethnic profiling should limit the second. Both of these overinflated concerns should be stoutly resisted.
He then goes on to argue why our Fourth Amendment rights should be further curtailed.
The basic command of the Fourth Amendment says that, “The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated . . .” For these purposes, the operative term is “unreasonable,” which, in light of the weighty interests on all sides of the dispute, requires some public judgment that compares the risks of inaction with those of excessive action. This unavoidable balancing process makes it foolish to elevate privacy—itself a complex notion—to that “nonnegotiable” status under a Constitution that also values the protection of life, liberty, and property.
Second, the last thing needed in these difficult circumstances is a squeamishness about aggressive government action. It is wholly unwise to think that we can turn surveillance devices on and off with the flip of a switch, as Hedlund proposes, and still get the information we need. The correct approach is to do exactly what Hedlund would stop: collect troves of information about the conduct of people in public places, which can then be stored for future use.
Epstein is being disingenious. He casually omits the bulk of the Fourth Amendment because it does not support his premise. The whole text is: "The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized."

Up until the progressives took over the Supreme Court, a search was presumably "unreasonable" if it wasn't supported by warrant or made in the process of an arrest. However, over the past 50 years, and accelerating under the so-called "war on drugs," the Supreme Court has gradually allowed our Fourth Amendment rights to be eroded to allow for exception upon exception, until now the exceptions have all but swallowed the rule. This is why Epstein feels he can so casually disregard everything after "unreasonable searches and seizures." However, as Benjamin Franklin is credited with observing: "Those who would give up Essential Liberty to purchase a little Temporary Safety, deserve neither Liberty nor Safety."

Given that one has a greater chance of being struck by lightening than killed by a terrorist, Epstein's desire for a surveillance society is a gross overreaction to what is, in reality, a minimal threat. So, yes, it should be nonnegotiable.

Epstein also makes the classic progressive mistake of confusing religion with race. Islam is a religion, it is not an ethnicity. So, is Epstein as willing to jettison the First Amendment as he seems so eager to do to the Fourth.

Finally, let us be honest here. Epstein is of that class of elites who will never be subject to a "shelter in place" order (i.e., martial law). His risk/benefit analysis is, accordingly, skewed.

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