| Stephen Cox is a
professor of literature at UC-San Diego. |
|
Speechless, for once — To show you
what a nasty little man Jimmy Carter is, on June 8, he was gushing over the great
event of his lifetime, having a Navy ship named after him, with a lot of old
Democratic hacks, like Schlesinger, speaking in his honor. Then the news of
Reagan's death came out, and everybody, including Kerry and Clinton, made nice
remarks about Reagan; even Clinton was remarkably effective and seemingly
sincere.
This is what I read about Carter later in the day: "No statement was
immediately available from Jimmy Carter." — Stephen Cox
| Sheldon Richman is
editor of Ideas on Liberty. |
|
The secret Jewish code — In his
review of David Bernstein's book "You Can't Say That!" (January), Bruce Ramsey
noted that Bernstein relates an anecdote about my brother, who ran afoul of a
housing law by advertising a house that was "walking distance to a synagogue,"
thereby appealing to whites, since most Jews are white. That's not quite
accurate, and the real story makes Bernstein's point even stronger. Let me
elaborate.
In the early 1990s, my brother Brad managed an apartment building in
Philadelphia that was home to many orthodox Russian Jews. When an apartment
became vacant, Brad advertised its availability in the Jewish Exponent,
Phila-delphia's major Jewish newspaper. Among the amenities he listed was the
apartment's proximity to a synagogue; it was virtually around the corner. His
intention was to let prospective orthodox Jewish renters know that they could
walk to a synagogue on Sabbath. Orthodox Jews do not ride on that day, so this
was important information. Not including it in the ad could have cost him a good
tenant.
The ad was brought to the attention of the authorities by a man who apparently
picks up extra cash by searching for housing notices with "code words" that
violate the Fair Housing Act. In other words, he was a shakedown artist.
(Government regulations spawn their own form of entrepreneurship.) Although he
had no interest in the apartment himself, the man called the Philadelphia Human
Relations Commission to complain. (The HRC handles such complaints in
Philadelphia for the U.S. Department of Housing and Urban Development.) After
making his complaint, the man told the HRC representative that he would drop the
matter if Brad compensated him for his time. The representative then contacted my
brother to tell him the ad violated the law. The representative said that while
the commission did not condone shakedown artistry, it had to pursue the matter
now that it had come to its attention. (As I recall, the newspaper also called my
brother to say that, after hearing from the HRC, it would no longer permit the
offending phrase in the ad.)
Although most Jews are indeed white, the issue was not race. The authorities
told Brad that by pointing out the apartment's proximity to a synagogue he had
illegally used code words to express his preference for a tenant of a particular
religion. (I'm surprised he wasn't chastised for advertising only in the Jewish
Exponent.)
In the end my brother chose to sign a consent decree rather than fight. The
alternative was to submit to a hearing. An adverse decision would have paved the
way for a suit by the shakedown artist and invited close scrutiny by the
government. That's how justice works these days. — Sheldon Richman
| Jo Ann Skousen
is a writer and critic living in New York. |
|
All we're saying is: give fantasy a chance
— Harry Browne was the final speaker at the recent FreedomFest
conference. After making an impassioned case for anarchical utopia, repeating his
mantra, "Government doesn't work," he anticipated criticism from conservative
skeptics in the audience by saying, "I don't know how to do it, but that doesn't
matter. I don't care how we get there. I just know that it's right." I hear this
response a lot when libertarians are asked by well-intentioned neophytes, "How do
we get there from here?" "I don't know," they say. "I just know that it's right."
While I understand their point, I don't think that it's enough. To me, and to
many in the audience, this non-answer is a cop-out. It's like finding a bomb in
Central Park and saying, "I don't care which wires we cut, I just know that a
bomb has no right to be in Central Park." No one will argue with you about the
merits of eliminating the bomb, but they aren't going to trust you to do the
job.
If we don't convince others that true freedom is not only desirable but
possible, we will never garner enough support to make it work. One of the reasons
Great Britain was able to privatize its public utilities successfully is because
Madsen Pirie of the Adam Smith Institute provided Margaret Thatcher with a plan
that could work, without throwing hundreds of thousands of people out of their
jobs. Beginning with British Telecom, the British government essentially sold its
utilities companies to its employees. When government employees became private
stockholders, every worker had an incentive to work hard, become efficient, and
turn a profit. The transition worked smoothly because Margaret Thatcher had a
convincing plan.
John Mackey, CEO of Whole Foods and the kick-off speaker for FreedomFest,
presented the argument that libertarians need to "change their brand" and become
known as more than the party that supports drugs, prostitutes, and pornography.
To be successful in dismantling our bloated government, we need to demonstrate
that our philosophy of freedom and accountability can make life richer and more
satisfying for all. Mackey maintains that libertarians have the appropriate path
for fixing the problems we face; we just need to focus on goals that are more
universally appealing, and let the others fall naturally into place once people
understand and accept the underlying philosophy.
It matters very much "how we get there." If a libertarian had a tumor growing
inside his brain, would he simply say, "Tumors don't work" and "This tumor has no
right to be there"? Would he allow a respected libertarian philosopher to cut out
the tumor, simply because he agrees it doesn't belong there? Or would he
investigate various paths, examine the potential outcomes, and then choose the
treatment with the most convincing plan for success? When choosing an oncologist,
most patients head in one of two directions: either they choose the person with
the greatest reputation, or they choose the doctor who explains the treatment
most clearly. Right now the federal government has the greatest PR department
(public schools), so we need to be known as the group that explains the treatment
(not just the problem) most clearly.
We need to respect the American public enough to provide them with a workable
plan for dismantling the government. We have a winning philosophy: every person
has the right to choose his own actions, as long as he accepts responsibility for
the consequences of his actions, and as long as his actions do not limit the
freedom of others to choose. Now we need to demonstrate how that philosophy can
be applied successfully in every situation. "I don't know" simply isn't going to
cut it. — Jo Ann Skousen
| Mark Moller is
the editor of the Cato Supreme Court Review. |
|
The end of "the right to remain silent"
— "Any lawyer worth his salt will tell [a] suspect in no
uncertain terms to make no statement to police under any circumstances." So said
Supreme Court Justice Robert Jackson fifty years ago. Strong words from a man who
had served as the Attorney General of the United States and as the Chief
Prosecutor at Nuremburg. Commonsense words, too: every kid who has watched re-run
TV cop shows knows that "you have the right to remain silent" when the police
come knocking.
Except that, now, you don't. In Hiibel v. Sixth Judicial District of
Nevada, the Supreme Court, in one stroke, turned Justice Jackson's advice on
its head, and turned generations of TV cop shows into so much false advertising.
Silence, said the Court, is not only not privileged: it can get you thrown in
jail.
Hiibel arose out of a set of facts typical of thousands of
run-of-the-mill police investigations. Responding to reports of domestic battery,
police encountered a suspect, Dudley Hiibel. The investigating officer, after
approaching, demanded that Hiibel identify himself. Hiibel declined. "I feel
quite strongly I have a right to remain silent," Hiibel later explained.
Dudley Hiibel paid a steep price for his stand on principle: the police
arrested Hiibel on the spot, and threw him in jail. The charge? Not domestic
battery, a crime for which the police had no evidence to arrest. (Hiibel later
proved to be innocent). Instead, Nevada justified the arrest based on a state
statute that makes refusal to provide identification when stopped by the police a
jail-able crime.
The unconstitutionality of the Nevada statute should have been a no-brainer
for the Court. Over the last three decades, the Court has repeatedly held that
the "right to remain silent" is an unconditional constitutional guarantee under
the Fourth and Fifth Amendments. In Davis v. Mississippi, for example, the
Court emphasized that it is a "settled principle" that "the police have . . . no
right to compel [citizens] to answer" police questions. In Terry v. Ohio,
the case that upheld the power of police to briefly stop and question
"suspicious" persons on the street, Justice Byron White added that "[a person
detained] is not obliged to answer, answers may not be compelled, and refusal to
answer furnishes no basis for an arrest."
As New York University law professor Stephen Schulhofer has noted, the "right
to remain silent" reflects a core constitutional principle: namely, that lawful
police investigation should rely on "persuasion and the suspect's
overconfidence," rather than "pressure and fear." The privilege of silence
guarantees that wiles and smarts, not intimidation, should define lawful police
practice.
Hiibel, however, holds just the opposite. Far from "scrupulously
respecting" the right to remain silent (as the Court's past decisions require),
Hiibel authorizes the police to "sanction" those with the temerity to
exercise their right to silence — by hauling unresponsive citizens to jail.
Indeed, the Court appears to affirmatively condone police use of "threat[s]" and
"criminal sanction" as helpful tools of good police investigation. In
Hiibel, "pressure and fear" gain a new purchase on the law of criminal
procedure.
The Court justifies expanded use of police "threats" based on two grounds: (1)
the supposed need to "protect" police officers, and (2) the notion that compelled
disclosure of a name is not "coercive" within the scope of the Constitution,
because a name is not "incriminating." Neither carry water.
The "safety" concern would be more credible if the Court, in Terry v.
Ohio, had not already authorized police officers to physically search
suspects for weapons — and if dangerous criminals could be trusted to
passively tell police the truth about their identity on demand.
The second argument is handily disposed by Justice John Paul Stevens, writing
in dissent. If "disclosure of a petitioner's name would [not] . . . incriminate
him," queried Stevens, then "why else would an officer ask for it? And why would
the Nevada Legislature require . . . disclosure [of a name] only when
circumstances 'reasonably indicate that the person has committed, is committing
or is about to commit a crime?' . . . . The very existence of the statute
demonstrates the value of the information it demands."
Hiibel, has one bright spot: the decision could have been worse. The
Court mercifully avoided upholding compelled disclosure of information beyond a
suspect's name. Accordingly, there is hope the Court may yet strike down the 20
state statutes that demand suspects give not only names to police, but also an
"explanation" of themselves on demand. The Court also emphasized that the
decision doesn't require a hand over of "driver's license[s] or any other
document." Hiibel, accordingly does not green-light the push for a
national identification card.
But these caveats hardly save the opinion. To the contrary, they are symptoms
of the Court's growing fecklessness. For this Court, recognition of firm
protections for civil rights is always on the horizon, to be protected tomorrow,
in the next case. That promise is wearing thin. Five years ago, Justice Kennedy
— often described as a "bellwether" Justice — warned that the Court
stood at risk of forgetting that "liberty comes . . . from the Constitution by
right," and not from "officials by grace." Flash forward to today: Justice
Kennedy is the author of the opinion in Hiibel,. Perhaps he has changed
his mind.
Hiibel, underscores, once again, that when it comes to upholding
constitutional restraints on the state's criminal apparatus, there is only one
sure bet in the modern Court: all bets are off. — Mark Moller
| | | |
