For example, some of us are now, rightly, concerned with the expansion of government surveillance, unchecked by the courts; and the Fourth Amendment has been a vague shadow of its original self for a long time now: e.g. your refusal to take a breathalyzer test becomes probable cause to arrest you (or in the new strategy, there's a judge on-site to issue a warrant for a blood sample). And yet, wiretapping didn't require a warrant, from the first time the Supreme Court considered it in 1928's Olmstead v. United States, until they overturned it in 1967's Katz v. United States. Olmstead was a 5-4 ruling, and Justice Louis Brandeis's dissent is now famous, as Supreme Court dissents go, being cited in pretty much every pro-privacy decision of the past 50 years:
The protection guaranteed by the Amendments is much broader in scope. The makers of our Constitution undertook to secure conditions favorable to the pursuit of happiness. They recognized the significance of man's spiritual nature, of his feelings, and of his intellect. They knew that only a part of the pain, pleasure and satisfactions of life are to be found in material things. They sought to protect Americans in their beliefs, their thoughts, their emotions and their sensations. They conferred, as against the Government, the right to be let alone -- the most comprehensive of rights, and the right most valued by civilized men. To protect that right, every unjustifiable intrusion by the Government upon the privacy of the individual, whatever the means employed, must be deemed a violation of the Fourth Amendment. [emphasis mine]So this case, coming out of Prohibition, has moved along all kinds of decisions that have shaped our world, like Griswold v. Connecticut (birth control), Miranda v. Arizona (Miranda rights), Katz mentioned above, and Roe v. Wade. But it took 39 years to get from Olmstead to Katz; 39 years for the Court to decide that another area of technology was subject to rights of privacy and protection from search.
Knowing that we've had a previous period of warrantless wiretapping adds some perspective to our current one, doesn't it? Not that it's not bad, but that it's not unique: it changed once, and it can change again.
Or, take the Jones Act of 1929. This escalated most Prohibition violations from misdemeanors to felonies, maximum sentences for a first offense from 6 months to 5 years, and bumped fines from $1000 up to $10,000. Failure to report a felony also became a felony, so if you happened to see someone transporting alcohol (and it was hard not to), you were subject to 3 years in federal prison. This was part of a spasm of draconian enforcement in the years leading up to Repeal, when people refusing to acknowledge that Prohibition couldn't work focused on how weakly enforced it was, rather than how unenforceable.
On March 29, 1929, six officers, "'armed with sawed off shotguns, pistols, machine guns, bulletproof vests, and tear bombs'"
"invaded the home of Peter DeKing, a suspected bootlegger. One of them clubbed him over the head with the butt of a shotgun. As he dropped senseless, his wife Lillian sprang to his side. A blast from the shotgun killed her. When told of the atrocity, Ella Boole of the WCTU [Women's Christian Temperance Union] remarked, 'Well, she was evading the law wasn't she?" [quoted in Drug Policy and Human Nature]In Michigan, where the state legislature had passed a stricter-than-federal enforcement law, Etta Mae Miller, mother of 10 whose husband was already in jail, sold two pints of liquor to an undercover cop, and since it was her fourth violation, she was put in jail for life.
The War on Drugs has made this sort of thing routine, imprisoning endless millions of Americans and producing locally-controlled paramilitary police forces who constantly screw up and kill innnocent people (without consequences, of course).
Photo by Flickr user kchrist/Kenn Wilson
Those right there are two officers from Bay Area Rapid Transit, the light rail system, which to my knowledge has never experienced an incident requiring machine guns. In addition to being over-armed, they're also under-supervised, as we learned with the Oscar Grant murder.
A few years ago, when I read America Afire: Adams, Jefferson, and the Revolutionary Election of 1800, I thought, "Wow, the election of 2000 looks pretty calm and civilized by comparison." For some reason I learned that we'd had worse elections, but I didn't continue on to think that we've had really bad everything at various times.
America has lots of problems right now, and lots of stuff we need to fix, and directions that we need to change. I wonder if we lived longer, long enough to see everything more than once, would we be wiser? Would we understand that the way things are, good or bad, has happened before in some form or another, and will happen again, and are going to change? Or is it a human thing, and our history would follow other cycles longer than a human lifetime? Maybe we're inherently short-sighted. Me, I'm going to relax a little bit. We've been here before, and it's lame; but it will change.
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