Monthly Archives: May 2015

Op-Eds

Can the President Ignore the Supreme Court?

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U.S. Supreme Court building.
U.S. Supreme Court building. (Photo credit: Wikipedia)

Ben Carson is the longest of long shots in the Republican Party’s 2016 presidential nomination contest.  A distinguished neurosurgeon, Carson captured the hearts of many conservatives with his comments at the 2013 National Prayer Breakfast, in which he positioned himself as pretty much the exact opposite of US president Barack Obama.

We won’t see him onstage accepting his party’s nomination next summer. He’s one of those interesting combinations — political novice and snappy-answer gadfly — who just can’t compete in the money and endorsements game and usually end up finding they don’t connect very well with voters, either.

But those same difficulties also liberate him to pose tough questions and step on the third rails that more experienced politicians carefully avoid. Like this one:

Is the Supreme Court really constitutionally empowered to review laws passed by Congress, veto those laws if it deems them unconstitutional, and order the president of the United States to act accordingly?

It’s a good question, albeit one most people considered long settled. Carson brought it up on Fox News Sunday. “The laws of the land, according to our Constitution, are provided by the legislative branch. The laws of the land are not provided by the judiciary branch …. We need to get into a discussion of this because it has changed from the original intent. It is an open question.”

The Court first set aside a law as unconstitutional in 1794. In 1804 Chief Justice John Marshall formalized that power in Marbury v. Madison.

Ever since, with few exceptions (Andrew Jackson ignored the Court’s ruling against forcibly moving the Cherokee; Abraham Lincoln ignored Chief Justice Taney’s Civil War ruling that only Congress could suspend habeas corpus), presidents have generally acknowledged the Court’s authority.

I’ve heard reasonable arguments that the framers intended to empower the Court to review statutes for constitutionality, and that they didn’t. It’s worth considering the plain text of Article III of the Constitution, which empowers the court over “all Cases, in Law and Equity, arising under this Constitution.”

Since the Constitution declares itself “the supreme Law of the Land,” it seems to me that the justices can’t avoid weighing subordinate laws in light of that “supreme law” and setting aside those which violate it. If they’re not, per Article III, empowered to do exactly that, what’s the purpose of an independent judiciary?

While the Constitution does not itself mention “checks and balances,” the framers did. They set the Supreme Court on an equal level with Congress and the presidency for a reason. The three branches restrain each other. Not always and never perfectly, but the Court has on many occasions proven itself a worthy last resort in defense of our liberties.

When it comes to restraining government, I’d much rather see the power of the imperial presidency curtailed.  Hearing him pose this question makes me glad that Carson, who seems to style himself a George W. Bush style “decider,” will never have the opportunity to test his theory of the Court’s role.

Thomas L. Knapp is director and senior news analyst at the William Lloyd Garrison Center for Libertarian Advocacy Journalism (thegarrisoncenter.org). He lives and works in north central Florida.

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Cops Should be Held to Higher, Not Lower, Standards

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The six Baltimore Police officers charged in Freddie Gray’s homicide.
The six Baltimore Police officers charged in Freddie Gray’s homicide. Top row left to right: Caesar R. Goodson Jr., Garrett E. Miller and Edward M. Nero. Bottom row left to right: William G. Porter, Brian W. Rice and Alicia D. White. (Photo credit: Wikipedia)

I don’t live in Baltimore. I will not be a juror on any of the cases relating to Freddie Gray’s death from injuries he sustained while in police custody. I’m not going to predict the verdicts in those cases, or speculate as to what those verdicts should be.  Those accused of crimes are entitled to fair trials, presumption of innocence, and a burden on the prosecutor to prove the charges beyond reasonable doubt.

That said, the handling of this case, and of most alleged crimes in which police officers are suspects, demonstrates some severe inequities that tend to explain why we see people protesting police violence on the streets.

If you and I go out and abduct someone off the street, hog-tie him, throw him in a vehicle, then drop him off severely injured at a hospital, we’re not going to walk free for a week between then and his death. After he dies, we’re not going get ten days off with pay while a prosecutor conducts a leisurely investigation. We’re not going to make bail without seeing the inside of a holding cell (if we’re allowed bail at all).

We’re going to go directly to jail, without passing Go. We’re going to be immediately charged with kidnapping and assault, and a few days later we’re going to be charged with murder. We’re going to cool our heels in jail for a couple of days before our arraignments and bail hearings.

Freddie Gray was arrested on April 12. He died on April 19. It wasn’t until April 21 that the six officers involved in his abduction and death were suspended (with pay). They were not charged with a crime until May 1. Then they were booked and immediately released on bail.

The difference between you and I and those six cops is that they’re government employees with shiny badges. That’s it. That’s all.

Defenders of the existing system want us believe that, having entrusted those government employees with those shiny badges, we owe them an additional duty of special lenience and extra benefit of doubt in all situations even remotely related to the exercise of their duties.

I say that’s exactly backward. The standards of behavior for cops should be higher, not lower, than for civilians precisely because of the special powers with which they are entrusted.

As soon as it became clear that the officers who arrested Freddie Gray had abused those powers — stopping him without probable cause and arresting him on charges for which they possessed no evidence (the knife he was carrying was legal), they should have been arrested and charged with false imprisonment and armed criminal action.  Followed, a few days later, by the charges relating to Gray’s death.

The “police force” as we know it is a young institution, dating back only a couple of centuries and mere decades in its current, abusively powerful form. The jury is still out on whether that institution can be reformed, or whether we’re better off abolishing it.

Thomas L. Knapp is director and senior news analyst at the William Lloyd Garrison Center for Libertarian Advocacy Journalism (thegarrisoncenter.org). He lives and works in north central Florida.

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Yes, Mitt, We Have Mass Incarceration in America

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RGBStock.com Prison Photo

Quoth Mitt Romney on Fox and Friends: “We don’t have mass incarcerations in America. Individuals are brought before tribunals, and they have counsel. They’re given certain rights. Are we not going to lock people up who commit crimes?”

Finding hard statistics on how many Americans are caught up in the nation’s “justice” system is difficult. Here are a few, culled from various sources, which ring true:

One in every three Americans has a “criminal record.”

One in every thirty or so Americans is, at any given time, under some sort of “correctional supervision” — prison, jail, house arrest, probation or parole.

Double those numbers to get some idea of the “justice” system’s impact on African-Americans. Triple them and you’re starting to get into the ballpark when it comes to African-American males.

Two million Americans, give or take, are at any moment actually behind bars. Some polemicists highlight this figure as “the biggest per capita prison population in the world.” I don’t know if they’re right (official figures from, say, North Korea are naturally suspect), but they’ve definitely got a case.

92% of Americans accused of crimes accept “plea bargains,” admit to lesser charges, and forgo their right to trial in return for lighter sentences. 6% go to trial and are convicted. 2% go to trial and are acquitted.

The Mitt Romneys — and, not so long ago, the Bill Clintons — of the world refer euphemistically to this system as “rule of law.”

The rest of us refer to it as “government gone wild.”

How wild?

Wild enough that the most calculatedly centrist, mainstream politician on the American hustings, Hillary Clinton, thought it necessary to take a poke at the problem in reference to the riots in Baltimore following Freddie Gray’s abduction by police and death en route to jail, for the perfectly understandable “crime” of not wanting to hang around an area when the police showed up.

But apparently not too wild for Mitt Romney.  Following two failed presidential campaigns, Romney has re-branded himself as the talk circuit’s new Alfred E. Neuman — “what, me worry?”

Hillary has a point. Or, rather, she’s catching on late instead of never to an existential threat.

To paraphrase Abraham Lincoln, America cannot endure one third criminal and two thirds awaiting arrest. It will cease to be divided. It will re-embrace freedom or it will continue to devolve into totalitarian police statism.

Thomas L. Knapp is director and senior news analyst at the William Lloyd Garrison Center for Libertarian Advocacy Journalism (thegarrisoncenter.org). He lives and works in north central Florida.

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