Civil Liberties and Privacy in Peril

This week has been troubling for our nation's civil liberties, namely the people's right to privacy and freedom from unwarranted government intrusion. On Monday, the Supreme Court allowed police  to gather the DNA of arrestees to help them solve unrelated crimes. That decision drew justified dissension from Justice Scalia and civil liberties groups. Besides its unsound application of Fourth Amendment precedents, the opinion gave too much deference to the police, as if pretending that the State would not abuse its power to collect DNA for ulterior purposes, and minimized the loss of privacy, which surely was great for arrestees. We shouldn't be less sympathetic just because arrestees are involved - any of us can be arrested and what rights taken from some are taken from us all.

Compound that is this week's revealing of massive surveillance of American citizens by their government and collection of communications records by the NSA. It has drawn justified debate about the extent of government surveillance necessary to protect Americans from terrorism while maintaining their civil liberties. And finally, President Obama and the politicians have to be candid about what's going on. What is discouraging is the muted response from Congress, with many politicians (besides Rand Paul) too spineless to criticize the NSA's actions. While the intelligence community and politicians will try to muzzle the media and informants, this timely revelation advances our ideals of a transparent government and having the people (through the press) check on their government.

These happenings are not surprising and shows what happens what the government has too much power and lacks transparency. The checks and balances prescribed by the Constitution failed because Congress lacks the will to speak up and investigate, the Executive Branch predictably stretched their powers under the Patriot Act, and the judiciary fails to be an independent check on the powers of government. In fact, the judiciary has done the people disservice by trusting the government to not abuse its powers, whether under the Patriot Act or the Fourth Amendment, and by shielding activities of the FICA from meaningful review. What will ultimately drive change will be the people. It might not be easy to advance the cause of civil liberties, especially when terrorist threats remain, but it is necessary to safeguard our right to privacy and check on the power of government.

America, it's time to talk about guns

The recent tragedy at Sandy Hook should kick start a much-needed national dialogue about guns. It should happen in legislatures and town forums, not in courts. Ever since Heller, the question of gun laws have been mostly in the courts and concerning the Second Amendment. Politicians have refused to touch this poisoned chalice, even when recent events show it is much needed. I believe we can have sensible and effective gun control laws, which are currently lacking, without infringing on the people's Second Amendment rights.

But we must start somewhere. The politically taboo topics of gun control laws, especially at the federal level, and how accessible guns are to the mentally unstable are serious questions we need to ask. Too many lives are at risk to gun violence in America, and arguably it's worsening. The statistics and unclear and messy as to whether more restrictive laws, or less laws, are correlated with gun violence. But the public needs to learn, debate, and devise solutions to this problem rather than let it go on only in the courts while we sit on the sidelines or in the possible range of fire.

"Let us make our country worthy of their memory."

California's voters should approve Proposition 19

In November, California will vote in a statewide referendum on whether to legalize marijuana. I believe that the proposition in question, Proposition 19, should be approved. Many reasons exist, some of them compelling, for approving the use of a drug that many people nonetheless consider criminal. For me, the two most convincing are legal and fiscal: removing arbitrary criminal policy and relieving fiscal policy. First, California serves notice how the enforcement of marijuana law and marijuana use, whether criminal or medicinal, overwhelmingly affects the poor and minorities. In fact, with medicinal marijuana legal, enforcement of the current laws is very arbitrary: many poor blacks and Hispanics, for example, are arrested at will. Legalizing the whole class will help lessen some of the capriciousness in a very grey area of criminal law and policy. Second, California, like many other states, is facing a growing and unwieldy fiscal crisis. Illegality of marijuana costs the state directly through police work, and more so, indirectly through loss of potential revenue. The Proposition authorizes several revenue-generating provisions that should help alleviate California's budget problem. It is something badly needed for a small price to pay.

Of course many would challenge the Proposition, and polls are indicating that opinion is close to 50-50. Besides the moral and criminal arguments, a legal issue arises: will California's proposition legalizing marijuana conflict with the federal government's ban on marijuana? The Supreme Court's recent decision in Gonzalez v. Raich, which upheld the federal government's ban on marijuana, even medical, as a legitimate use of the Commerce Clause, should serve as a guide. Despite that broad and seemingly ineluctable precedent, I believe that the new proposition, if passed, may survive legal scrutiny. First of all, Congress has not expressly preempted marijuana regulation - many states have differing laws that coexist with the federal ban. Second, the proposition itself has few provisions that directly challenge the Congressional ban. Criminal use or drug trafficking will continue to be outlawed. Third, the proposition's revenue-generating aims also shields it from being struck down: states have a large leeway on laws that seek to raise money, as opposed to laws seeking to regulate. Finally, the proposition does not violate the mirror side of the Commerce Clause, the dormant clause that prevents states from inhibiting interstate commerce. Thus, I believe that should the proposition pass and then is challenged, which it doubtless will, the Supreme Court could in fact uphold it. Right now, the issue lacks ripeness but who knows, some day limited criminalization of marijuana might become a fact, a boon for California and most of us.