“The Constitution is not neutral. It was designed to take the government off the backs of the people.” —Justice William O. Douglas
Given the turbulence of our age, with its police overreach, military training drills on American soil, domestic surveillance, SWAT team raids, asset forfeiture, wrongful convictions, profit-driven prisons, and corporate corruption, the need for a guardian of the people’s rights never has been greater.
Yet, just as the events of recent years have made clear, neither the president, nor the legislatures, nor the courts, will save us from the police state that holds us in its clutches.
After all, the president, the legislatures, and the courts are all on the government’s payroll.
They are the police state.
Certainly, Americans no longer can rely on the courts to mete out justice.
The courts were established to serve as Courts of Justice. What we have been saddled with, instead, are Courts of Order.
It is true at all levels of the judiciary, but especially so in the highest court of the land, the U.S. Supreme Court, which is seemingly more concerned with establishing order and protecting government interests than with upholding the rights of the people enshrined in the U.S. Constitution.
Every so often, the justices toss a bone to those who fear they have abdicated their allegiance to the U.S. Constitution. Too often, however, the Supreme Court tends to march in lockstep with the police state.
The Court’s 2017-2018 term was a particularly mixed bag. Here are some of the key rulings and non-rulings handed down by the Court this term:
• Speech, religious liberty and the First Amendment:
In Janus v. American Federation, the Supreme Court concluded that states cannot force public-sector employees to provide financial support for unions that engage in political activities with which they disagree.
In Masterpiece Cakeshop, Ltd. v. Colorado Civil Rights Commission, the Court ruled narrowly that government officials had violated the First Amendment rights of a baker by discriminating against his religious views regarding same-sex marriage.
In National Institute of Family and Life Advocates v. Becerra, the Court overturned a California state law that forced pro-life crisis pregnancy centers to provide patients with information about how to obtain an abortion.
In Minnesota Voters Alliance v. Joe Mansky, the Court struck down as unconstitutionally vague a Minnesota law that bans political speech on any “badge, button, shirt, or hat” worn at election polling stations.
• Police misconduct:
In refusing to hear the case of Young v. Borders, the Supreme Court declined to hold police accountable for shooting and killing an innocent homeowner during the course of a middle-of-the-night “knock and talk” police tactic gone awry.
In Kisela v. Hughes, the U.S. Supreme Court shielded a police officer who shot a woman four times in her driveway as she stood talking to a friend while holding a kitchen knife:
• Privacy and the Fourth Amendment.
In Carpenter v. United States, a 5-4 Court ruled that police must generally obtain a warrant before obtaining cell phone data to track a person’s movements.
In Collins v. Virginia, the Court ruled 8-1 that police may not intrude on private property in order to carry out a warrantless search of a vehicle parked near a residence.
In Byrd v. United States, a unanimous Court ruled that drivers of rental cars, whether or not they are explicitly named in the rental agreement, are generally entitled to the same reasonable expectations of privacy under the Fourth Amendment as the individual listed in the rental agreement.
In Dahda v. United States of America, the Court ruled 8-0 that evidence obtained under orders that violate the Nation’s federal wiretapping law can be used against a defendant in a criminal trial.
• Immigration and the power of the presidency:
In Trump v. Hawaii, a polarized Supreme Court upheld the Donald Trump administration’s ban on foreign travelers from Muslim-centric nations, ostensibly giving the president the power to discriminate on the basis of religion, while simultaneously overturning the Court’s World War II-era ruling in Korematsu v. United States that saw nothing wrong with the government imprisoning Japanese-Americans in internment camps.
• States’ rights:
In Murphy v. NCAA, the Court ruled 7-2 in favor of the 10th Amendment, which reserves to the States (and the people) the powers not delegated to the United States by the U.S. Constitution, nor prohibited by it. The case was factually about the right of the states to legalize sports gambling despite a federal law prohibiting it, but the ramifications of the ruling could extend into the area of marijuana legalization.
• Voters’ rights and gerrymandering:
In Husted v. A. Philip Randolph Institute, the Court gave the green light to Ohio to remove individuals from its voter registration rolls if they hadn’t been heard from in four years.
• Commerce:
In South Dakota v. Wayfair, the Court leveled the playing field, at least when it comes to collecting sales tax, between online ecommerce retailers and traditional businesses with a physical presence in a particular state.
So where does that leave us?
Still in the clutches of the American police state, I’m afraid.
What a difference nine individuals can make.
More often than not, the Roberts Supreme Court has been characterized by rulings that show an abject deference to government authority, military and corporate interests, rulings have run the gamut from suppressing free speech activities and justifying suspicionless strip searches and warrantless home invasions to conferring constitutional rights on corporations, while denying them to citizens.
Contrast the Roberts Court with the Warren Court (1953-1969), which handed down rulings that were instrumental in shoring up critical legal safeguards against government abuse and discrimination. Without the Warren Court, there would be no Miranda warnings, no desegregation of the schools, and no civil rights protections for indigents.
Yet, I make clear in my book, “A Government of Wolves: The Emerging American Police State,” more than any single ruling, what Warren and his colleagues did best was embody what the Supreme Court always should be: An institution established to intervene and protect the people against the government and its agents when they overstep their bounds.
—The Rutherford Institute