Trading Liberty for Security

Just when you thought the Bush administration was over, it appears Karl Rove is ghost-writing for Supreme Court Justice Anthony Kennedy. Not only is the language of Kennedy's opinion in Florence v. Board of Freeholders positively Orwellian, it displays utter disregard for minor constitutional concepts such as probable cause, due process and the prohibition against unreasonable search and seizure.

In case you missed it, Florence is the case of Albert Florence, who made the grave mistake of committing DWB in New Jersey (if you've ever driven the Jersey Turnpike, you know exactly what I mean) and getting hauled in on a voided warrant despite having paperwork showing the warrant was no longer valid. To paraphrase Bob Dylan's Hurricane, “In New Jersey, that's just the way things go. If you're black....” Simple incarceration wasn't enough; Mr. Albert was forced to submit to a strip search.

I'm not a constitutional scholar, and, unlike President Obama, I don't play one on TV; but it seems to me that the Supreme Court turned three constitutional guarantees on their heads in order to create one guarantee afforded only to prison officials. As Kennedy wrote, “In addressing this type of constitutional claim, courts must defer to the judgment of correctional officials unless the record contains substantial evidence showing their policies are an unnecessary or unjustified response to problems of jail security.” I wasn't aware it should be the purview of corrections officials to judge constitutional matters. Thankfully, Kennedy explains for us that these officials “offer significant reasons why the Constitution must not prevent them from conducting the same search on any suspected offender who will be admitted to the general population of their facilities.” I don't mind impinging on the rights of CONVICTED offenders, but I thought SUSPECTED offenders actually had Constitutional rights. Lyle Denniston showed me the light in SCOTUSblog on April 2, 2012: “The Court explicitly refused to limit the authority to use strip searches only to situations in which a specific individual gave officers a reason to consider that prisoner to be dangerous or likely to be carrying a concealed weapon or drugs.” Nazi Germany, anyone?

I'm not sure how the court can stand three separate parts of the Bill of Rights on their heads and still pass Constitutional muster, and apparently Justice Alito shared my concern. More from Denniston: “Justice Alito, with apparent support from the Chief Justice, suggested that a general search policy might not always be reasonable under the Constitution’s Fourth Amendment. 'The Court,' Alito wrote, 'does not hold that it is always reasonable to conduct a full strip search of an arrestee whose detention has not been reviewed by a judicial officer and who could be held in available facilities apart from the general population.'” They shared my concern, just not enough to keep them from shredding the Constitution.

The decision in Florence is bad enough on its own. What is even scarier is the lengths to which it might be taken in other circumstances, especially given Kennedy's language. Here's a gem: “There is a substantial interest in preventing any new inmate, either of his own will or as a result of coercion, from putting all who live or work at these institutions at even greater risk when he is admitted to the general population.” Using Kennedy's logic, why not strip searches at TSA checkpoints, sports stadia, train stations, public schools and grocery stores? If you don't believe these things begin on a small, limited basis, let me introduce you to the Patriot Act.

Stand Your Ground, Justice Kennedy. Sieg Heil!