Ever since September 11, 2001, the government can usually justify whatever it does on the grounds of security. Sports team owners wanted banner-towing aircraft banned from overflying stadiums and thus competing with in-stadium ads. They got their wish shortly after September 11, but since the government did not want to be departing from its “airspace belongs to the public” concept, all aircraft were banned. (The restriction was just recently updated. See this page for the latest draft. Note that the restrictions are specific to stadiums where teams owned by particular organizations are playing, e.g., “NCAA Division One Football” or “Major League Baseball”.)
This didn’t get any press coverage, but an anti-media TFR put in place over Ferguson, Missouri has generated some (nytimes). It seems that everyone in the government could agree that high-res TV footage of rioting Americans was something that the world could live without. First the FAA banned aircraft from going below 5000′ above the ground and then 3000′. Arguably the TFR had some rational basis since the police wanted to fly their helicopters around. On the other hand it is smack up against the main St. Louis Airport and therefore already very tightly controlled by ATC (nobody could fly in that area without an ATC clearance anyway).
The trend in our country is to narrow and narrow the sphere in which our Constitutional rights apply. The Bill of Rights still exists, it is just subject to more and more exceptions and applies in fewer and fewer areas, so it is less and less meaningful. We have freedom from search without a warrant, except when you want to fly on an airplane or cross the border or when the NSA wants to read your email. We have freedom of speech, but if you say the wrong thing you might lose your job. We require proof beyond a reasonable doubt for conviction, but a preponderance of the evidence is enough to get you expelled from college and ruin your career. So you still have all your old traditional Constitutional rights, as long as you are willing to live an 18th century lifestyle.
Jackie,
Your conclusion that the application of the United States Constitution and Bill of Rights is becoming narrower remains a mostly unsupported generalization by you, regardless of your efforts otherwise.
This is because you are wrong:
Law enforcement is required to have a warrant to search an aircraft.
The Fourth Amendment doesn’t exactly (or even rationally) apply to international border crossings.
The First Amendment is about freedom of speech and not freedom from being fired or a right to employment. It would be impractical to prevent employers from firing someone who told their boss to go f*ck himself.
A conviction is a judicial proceeding. Civil developments like being expelled from an educational institution or fired from a job are not. Incredibly a preponderance of evidence does actually satisfy the legal definition of proof beyond a reasonable doubt, since you are apparently familiar with these terms how could you think otherwise? Regardless your examples are not legal proceedings.
Your one point about the NSA does make sense.
Finally you say,
“So you still have all your old traditional Constitutional rights, as long as you are willing to live an 18th century lifestyle.”
What exactly are “old traditional Constitutional rights” and how does claiming them compel someone to live an 18th century lifestyle? Are you referring to the first 13 years of life under the American Constitution which would be the last 13 years of the 18th century?
John: I think that when Jackie said “when you want to fly on an airplane” she was referring to being a passenger and going through TSA searches. (And in any case the government can and does search private airplanes without a warrant every day. You just have to fly your little Cessna from Burlington, Vermont to Montreal and back, for example. Also see http://www.wnd.com/2014/07/now-feds-do-gunpoint-searches-of-private-planes/ regarding searches of little airplanes following domestic flights.)
Check out http://www.ncsea.org/documents/CRS-Report-on-CSE-and-Incarceration-for-Non-Payment-March-6-2012.pdf for one of the ways in which Americans are regularly imprisoned without the criminal “beyond a reasonable doubt” standard and without a right to an attorney. Also look at http://en.wikipedia.org/wiki/Civil_forfeiture_in_the_United_States
Finally see http://www.yalelawjournal.org/article/criminal-law-comes-home for how the government take away your use of a house that you’ve paid for and access to children that you’ve reared via a “Civil Protection Order” under the preponderance of evidence standard (though in fact legal practitioners say that judges grant these with less than 51% evidence).
>Incredibly a preponderance of evidence does actually satisfy the legal definition of proof beyond a reasonable doubt,
That IS incredible. It also shows that you are the one that has no idea what these terms mean.
The “preponderance of the evidence” standard, which is the standard in “civil” procedures (such as the forfeiture of your home or all your money) is a “more probable than not” standard – the fact finder (the judge or jury) has to believe that the government’s version of the facts is only SLIGHTLY more believe than your version. So if they think that the other side’s case is 51% believable and your version is 49% believable, the other side wins and gets to take away all your property (or whatever).
“Proof beyond a reasonable doubt” is a MUCH higher standard. “Beyond ALL doubt” would mean that the jury would have to be 100% sure that you are guilty, in which case the government would almost always lose unless they happened to catch you on video. A “reasonable” doubt is only slightly lower, real world standard – the jury doesn’t have to be 100% sure that you are guilty, but they have to be pretty sure – roughly 90% sure (it’s not an exact number). “Blackstone’s formulation” was “It is better that ten guilty persons escape than that one innocent suffer,” which implies around a 90% standard.
So there is maybe a 40% gap between these two standards.
Given your utter and complete ignorance on this basic point of law, I won’t bother to address the other points – Phil has given several examples and there are many more. If you feel just fine about the erosion of our civil liberties, then God bless you and good luck to you – you will need it someday.
See also http://www.mediaradar.org/docs/Heleniak-TheNewStarChamber.pdf regarding the question of whether judges actually do use the 51% standard (it may be more sensible for a judge, from a career point of view, to use a 5% standard). The same author covers this in rather more detail than you’d probably want at http://www.mediaradar.org/docs/RADARsignatureReport-ErringOnTheSideOfHiddenHarm.pdf
All of this is kind of off-topic from the original posting, though!
Jackie sorry for my tone and for missing your point about the TSA. That was a good one. I was also wrong about the definitions of proof in civil and criminal court being synonymous. Thanks for clearing that up.
Phil thanks for all this.
One of the recently popular (but long) articles illustrating the negative side effects associated with the rapid growth of a federal law enforcement agency is here, about the Border Patrol: http://www.politico.com/magazine/story/2014/10/border-patrol-the-green-monster-112220_Page5.html#.VFtIjPnF-7A
Today it feels natural that huge bureaucratic-life-forms like the Border Patrol and the DHS and DEA would create impractical enforcement programs which end up being mostly an inconvenience for the public.
It’s very provoking to think about federal agents detaining and searching a civil airplane because of secret evidence that the agency is too inept (or too lazy) to turn into a warrant. When John and Martha King were detained in 2010 http://www.avweb.com/avwebflash/news/John_Martha_King_Held_At_Gunpoint_203205-1.html it could be attributed to some egregious database miscommunications. Apparently it’s getting worse.
If I was an enterprising journalist it might be worthwhile to book a flight school airplane from El Paso or Marfa, TX to a municipal airport outside of Phoenix and skim the border for most of the flight there without squawking. With some well-placed cameras to film the DHS chase plane full of armed agents and a successful-enough FOIA request after the incident it could be pretty entertaining to cover the cost, manpower, quotas and success of a program which would probably seem better suited for South America.
I’m always impressed with the relevant articles and PDFs that you’re able to recall and post and I’m looking forward to going through the ones here more thoroughly.
I think this: http://www.forbes.com/sites/instituteforjustice/2014/08/26/philadelphia-civil-forfeiture-class-action-lawsuit/ may have been the first very prominent piece on civil forfeiture which inspired others like the John Oliver segment on HBO here: https://www.youtube.com/watch?v=3kEpZWGgJks which I think is the best so far.
Yes – that’s another example – we take something that was formerly criminal and judged by a jury according to a “beyond a reasonable doubt” standard (assault) and we rename it “domestic violence” and judge it by an alleged “more probable than not” 51% standard and THEN we go further (“err on the side of caution”) and make 51% really 5% or 10%. They can’t put you in jail but they can put you out of your house and fine you and make you lose custody of your kids and cause you to get hammered in a divorce settlement and otherwise ruin your life based upon a 5% chance that the accusations against you may be true and give you only days to assemble your case.
We are seeing the same thing with “rape” and campus tribunals (these are even WORSE than Family Courts – the judges have no legal training, sometime judge and prosecutor is combined into one person, the accused has no right to counsel, etc. ) Again you have a civil proceeding with a supposed 51% standard (imposed on all universities by Justice Dept. threats to take away Federal funding) and again, there is the impetus to “err on the side of caution” so that it’s not really 51% and again you have the ability to ruin someone’s life without actually having to send him to jail.