Here’s some ammunition for your next barstool duel regarding the merits of an 18th Century Constitution in the 21st Century.  The lede:

From the city of Exeter, great moments in community outreach: “police were under fire today after admitting they had been sneaking into people’s homes through open doors and windows and gathering up their valuables into ’swag’ bags.” The idea was to prod careless owners into improving their security efforts, but “not all residents were happy and a criminal lawyer suggested that the police may have been guilty of trespass.” [The Guardian] Earlier, and nearly as outrageous: Sept. 2 (cops in London borough “remove valuables from unlocked cars to teach the owners about safety”).

So, in short, British cops apparently have no qualms with entering British subjects’ home and seizing their property. According to a British criminal lawyer a trespassing charge is the only legal remedy. Perhaps you’re thinking it sounds like burglary, not mere trespassing. Likely not. Common law burglary requires larcenious intent, and it appears the british cops intended not to permanently deprive the British subjects in question of their property (rather, just to teach them a lesson). Plus, burglary has to occur in the nighttime.

By contrast, the 4th Amendment reads:

The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized

In America the British cops’ actions would be a slam dunk unlawful search and seizure under the 4th Amendment, which guarantees American citizens the natural right to be free of such in our homes. Now, I’m often a critic of the way federal courts have interpreted the 4th Amendment, or rather how the Courts have contrived numerous exceptions to its protections. By the way, what’s most galling about judicial exceptions to the 4th Amendment is that courts created many of them in response to uphold police actions concerning the spectacularly failed war on drugs. But I digress.

A barstool duel on the matter with a fairly illiberal liberal individual might go something like this.  He/she might ask why you take umbrage at the idea that a government actor can enter your home unannounced to teach you a valuable lesson. That will segue into a much, much broader discussion of the State’s role in society. And he/she probably needs that discussion much more than you need to expound on the merits of the 4th Amendment. First, assert that individual liberty includes the right not to have nanny-state government actors fuck with you in your home. That’s pretty reasonable, f-word aside, and very few people will disagree with you. Even if he/she broadly agrees with you, he/she will counter that there’s a public interest in teaching people to lock their homes, as doing so presumably will deter thefts. Now, assert that few, if any, public interests trumps the individual’s privacy interest or his/her interest in being secure in his/her home/castle. As a matter of principal, it is the individual, not the State, who is inherently responsible for his/her home, effects, and person. For instance, not even the State’s strong interest in cheaply and efficiently housing soldiers trumps the individual’s right not to be forced to house soldiers in his home. By contrast, if the State, not the individual, is inherently responsible for the individual then there is no reason why police can’t visit your bathroom unannounced while you’re defecating to ensure you’re not using too much toilet paper, or brushing your teeth, or whatever. He’ll/she’ll say that’s absurd. Ask her to spot the principal difference between cops teaching you an in-home lesson about theft and an in-home lesson about ass-wiping. The only difference is that one personally offends him/her, and one doesn’t. Granted, this is kindergarten level dueling. But it is your charge to utterly dispel the ugly notion, everywhere you find it, that the state is inherently noble and ultimately responsible for the individual.

Pila began with this seemingly benign quote:

I can picture in my mind a world without war, a world without hate. And I can picture us attacking that world because they’d never expect it. — Jack Handey

Mike replied:

They call that place Canada.

Niall liked that:

@Michael: brilliant. just brilliant.

Michael Moynihan had a short article on Reason’s blog today subtly criticizing the Root for including United States Supreme Court Justice Clarence Thomas on its list of Black People We’d Like to Remove From Black History. Moynihan begins thusly:

Over at The Root, where Slate magazine sequesters black journalists [emphasis added], Michael Arceneaux decides it’s time to excommunicate certain undesirables from the African-American brotherhood.  Because “while we love our own,” he writes, “we sure do dream of erasing a few of them from the history books.”

Talk about the royal “We.”  What’s galling are the reasons the Root includes Justice Thomas on an unwanted list inclusive of murderous despots, thugs, and infamous corrupticrats:

[Thomas] looks to the Constitution as “colorblind,” says he’s a man who just happens to be black and opposes government programs intended to help minorities.

A colorblind Constitution. The horror. What sort of illiberal individual could entertain such a notion? And where did Thomas get the idea that government social programs’ eligibility criterions should satisfy the equal protection components of the Fifth and Fourteenth Amendments.  No true Scotsman black man could hold such views.

If Justice Thomas has ever patronized himself by saying “I just happen to be black” I can’t find it on the Internet. Take away the racial prism that Root views through and Justice Thomas is a black man who reaches legal conclusions based purely upon his logical faculty and reason. In a word, Clarence Thomas is an individual. A reading from Ayn Rand comparing the merits of individualism with race-driven ideology is appropriate here:

“Racism is the lowest, most crudely primitive form of collectivism. It is the notion of ascribing moral, social or political significance to a man’s genetic lineage—the notion that a man’s intellectual and characterological traits are produced and transmitted by his internal body chemistry. Which means, in practice, that a man is to be judged, not by his own character and actions, but by the characters and actions of a collective of ancestors.”

In a sad twist, Root judges Justice Thomas by his “own character and actions,” but seeks to excommunicate Thomas from his “collective of ancestors” for failing to agree with the moral, social, and political stances held by the majority of the living members of his race. Look out Prof. Hutchinson, you might be next.

UPDATED: 2/23/2010 @ 11:45 a.m.

Frankly I’m surprised that Kanye West didn’t make Root’s list, considering that Barack Obama – while the sitting president of the United States – called West “a jackass” with a most sincere tone of voice.

UPDATED: 2/23/2010 @ 1:00 p.m.

Cavan got me going in the comments, so here’s our dialogue:

Cavan:

Well spoken. I find the very idea of “removing” some aspect of black history a bit perplexing. If they can do that can we just selectively remove Hitler from “white people” history? Clarence Thomas is as much a part of black history as Martin and Malcolm. That is, assuming that “black history” means the history of black people, and that membership in this group is determined by only skin color? Except in the case of Clarence Thomas where apparently membership is determined by his views? “Black History” is about race, if you chose to identify yourself by race instead of by intellect… I say you’re stuck with the identity you chose.

And Ayn Rand can insult the human race for its base collectivism all she wants… but she might as well complain about our weak bones or the fact we only have two hands. Humans are very visual creatures, and race–being a visual characteristic–will always be used to make the mental shortcuts known as stereotypes. Honestly I’ve never wondered why we don’t define race by voice patterns or smell–but logical me wonders it now.

Unfortunately its also a very dominant issue. It’s like the Sriacha Sauce of modern issues. No matter what you had before, if you put Sriacha on it–it now tastes Sriacha. No matter what the issue was before, once race gets introduced its about race.

Ryan:

I’ve achieved Sriracha sauce enlightenment. I put gobs of it on stir fry at Pho King Express (the one next to Stout) last friday and it enhanced, rather than overpowered, my meal. I believe all human beings are capable of a similar enlightenment whereby we interact with each other based upon character, content, and creed rather than primitive racial animus and collectivism.

I’ve been doing volunteer mediations in the local (female) juvenile hall and witness first hand some very basic forms of racial collectivism amongst the inmates there. The inmates are teenagers, come from the most broken of homes, and more broadly ‘communities’ that rely primarily upon race to draw social, cultural, and ideological lines. Moreover their prison environment is conducive to forging protective and information alliances. In light of those factors, the fact that race governs a good portion of the inmates relationships, actions, and responses is quite understandable. I do not fault those children.

But I fault the Root’s black intelligentsia because although they possess every resource to rise above the ugly, racial collectivism that centuries of racism forced them to retain, their ‘unwanted list’ clearly displays their refusal to do so. I further fault our society for tolerating (so long as it is non-white) explicit, racial-ideological collectivism. Finally, Salon “sequestering,” as Moynihan put it, their black commentators into a separate but public (equal?) forum (the Root) where they can serve as the de facto intelligentsia of African-Americans is insulting – a stunning example of the soft bigotry of low expectations.

[UPDATED 4/1/2010 @ 3:00 pm] – I’ve added some of the subsequent commentary below:

Joel Dreyfus [Managing Editor of the Root]:

Have you guys ever heard of humor..irony.. tongue in cheek? Are we collectivist, separate-but-equal, unintellectual agenda black folks barred from using such devices? The list was meant to be funny. And even the description of Thomas was ironic!!! I know, sometimes it doesn’t translate in print, but you guys need to, as my younger staffers would say, chill.

We’re not sequestered; we target a specific audience that feels underserved and whose views, perspectives and opinions are generally ignored by the mainstream media and the mainstream Web. We make a point of presenting a range of black opinions: conservative, liberal, middle of the road, and even, occasionally, humorous.

One of the wonders of the Internet is you can narrowcast to whom you want and if there is a market response to your content it means you are successful. And you don’t have to read us if you don’t want to.

I find it amusing that you and other sites have faulted Slate for “segregating” The Root. Just a little research would have shown that we were created just two years ago, more than a decade after Slate. We are in the same group for corporate convenience.

I find most news/intellectual/discussion sites on the web racially segregated in a much more blatant fashion – by omission. The Daily Beast recently posted a list of the most important journalists of the Left and Right. Such lists are more gimmicky than substantive but it reflected a common viewpoint that makes New Media not very different from Old Media: not a single African-American journalist made the list.
Quite possibly, you have been the exception and you have published the thinking of a diverse group of African-American, Hispanic and Asian thinkers.

We’re comfortable in our skin and we have created a place where our audience is taken seriously and can engage in a spirited debate that reflects a broad spectrum of views. And occasionally, we even make them laugh.

Joel Dreyfuss, Managing Editor, The Root

Ryan:

Mr. Dreyfuss, I appreciate your thoughtful response. You lamented the fact that not a single African-American journalist made the Daily Beast’s list. I simply do not care what race, quantum, or color, any of those distinguished journalists are. My sole concern is whether their work product merits inclusion on the list. Now, I’m quite sure you too care deeply about merit. Our difference is that you take race into some account, and I do not. Nor do I consider the race or races of the authors of the articles I link to, comment on, or criticize.
Although you intended the ‘unwanted list’ to convey humor and/or irony, I submit that expressing desire to oust an individual (J. Thomas) from the African race for failing to conform his socio-political views to those the Root believes are appropriate for African-Americans is a peculiar strain of racial collectivism. Standing on the ideological shoulders of better individuals than myself, I contend we should judge others based solely upon their choices, ideas, and actions as individuals, and treat every individual equally, especially as a matter of law and government. Contrary to your young staffers’ recommendation I will not chill my advocacy in that regard. Finally, I think Flavor-Flav is pretty awesome, and it wasn’t cool for the Root put him on its unwanted blacks list. I appreciate you taking the time to share your viewpoints on my fledgling blog.

Pila:

Mr. Dreyfuss,

“The list was meant to be funny.”

I will agree that the list is a joke, but not in the way that you suppose it is.

The list can be broken down into three categories:
1.) Easy Targets
2.) Conservatives
3.) Murderers

If the list really were meant “to be funny,” it would make the most sense to compose it of all Easy Targets, as Conservatives and Mass Murderers are generally not know for their hilarity.

The inclusiveness of the list is as telling as the fact that Clarence Thomas got more words written about him than anyone else.

The article is blatant, and your response is disingenuous.

Pila Sunderland,

Mike:

Clarence “Uncle Tom” Thomas was the only conservative black man George Bush Sr. could find to fill the “black seat” vacated by Thurgood Marshall (a seat Thomas has proved woefully inadequte to fill). He was a perfect choice to advance the conservative agenda – a black man willing to defer at every turn to Scalia.

Ryan:

You call Thomas an Uncle Tom for precisely the same reasons I criticized the Root article for creating an unwanted list in the first place. You consider Thomas first as a member of a racial group before you acknowledge his individuality. As a result you feel (implicitly or explicitly) his ancestry should take precedence over his individual logic and ration, and when Thomas steps out of the African-American mold you demean his individual capacity to do so by labeling him as merely an Uncle Tom.

Fast is doing thirty six (36) knots in a sailboat. Granted, it’s the Alinghi 5, but 36 knots is still fast. As in “I hear he’s real fast, Johnny” fast.

Good read here about the upcoming America’s Cup duel between BMW Oracle and the Alinghi 5. I particularly enjoyed this bit:

The crew has also become accustomed to Alinghi’s speed. Mr. Butterworth described a recent day when a sailor who had never been on the boat came along [on the Alinghi 5].

“He’s sitting on the back and we’re doing 36 knots,” he recalled. The man uttered a curse, Mr. Butterworth added, “and he says, ‘Is this right?’

“We said yeah, this is normal now.”

Love of the sea truly is a strange and unaccountable emotion. Sailboat porn below.

Bill Whittle responds to a commenter re: Climategate, AGW, F-22 program, Academia, and more.

See also, “A Tale of Two Revolutions: The War of Ideas & the Tragedy of the Unconstrained Vision.”

Who ya got? Thanks to Tehotu for the video!

Mike threw down the gauntlet:

“The appearance of influence or access will not cause the electorate to lose faith in our democracy” Justice Kennedy writing for the majority in the Supreme Court’s decision to allow unregulated corporate spending in Federal elections. You’ve gotta be kidding me.

And followed it up with this gem, which is quite funny:

News Flash: “Conservative Supreme Court Fellates Corporate Interests”

I responded by referring Mike to this Reason article, which essentially argues that limiting corporate / union speech for fear of ruining democracy is a classic example of the soft bigotry of low expectations.

This hyperbole betrays a belief—common among proponents of restrictions on political speech—that Americans, like lemmings, are merely dull creatures who can be easily led off a cliff. Thus, unless the government “protects” us from hearing corporations’ speech about politics, we’ll always vote in ways that benefit corporations because they will spend lots of money to convince us to do so.

This conclusion is as ridiculous as it is patronizing. * * *

The answer, of course, is that Americans are not imbeciles who mindlessly succumb to corporate advertising campaigns. We are fully capable of evaluating corporate speech on its merits; thus, we do not need “protection” from it.

Mike, um, disagreed:

This is really a bullshit Libertarian argument Ryan: “The answer, of course, is that Americans are not imbeciles who mindlessly succumb to corporate advertising campaigns. We are fully capable of evaluating corporate speech on its merits; thus, we do not need “protection…” from it”. Money buys votes plain and simple. The framers of the constitution were well aware of the dangers corporate influence could pose to a healthy democracy and I doubt their first amendment guarantee of free speech was intended to protect corporate influence over the political process. (Emphasis added).

He wasn’t done:

“Two centuries ago, the Supreme Court under Chief Justice Marshall first recognized that corporations are artificial creatures of the State, subject to government oversight to ensure they do not abuse the special privileges granted to them. Corporations cannot vote in elections, stand for election, or serve as elected officials, but the Court … today ruled they can overwhelm the political process using profits generated by the special privileges granted to corporations alone”.  http://seminal.firedoglake.com/diary/25541

Still wasn’t done:

Hard to argue against Stevens dissent: “corporations “are not human beings” and “corporations have no consciences, no beliefs, no feelings, no thoughts, no desires.” He insists that “they are not themselves members of ‘We the People’ by whom and for whom our Constitution was established.”

I responded:

Well, here’s Scalia’s response to that: http://reason.com/blog/2010/01/21/antonin-scalia-vs-john-paul-st
“I write separately to address JUSTICE STEVENS’ discussion of “Original Understandings”… This section of [Stevens'] dissent purports to show that today’s decision is not supported by the original understanding of the First Amendment. The dissent attempts this demonstration, however, in splendid isolation from the text of the First Amendment. It never shows why “the freedom of speech” that was the right of Englishmen did not include the freedom to speak in association with other individuals, including association in the corporate form. To be sure, in 1791 (as now) corporations could pursue only the objectives set forth in their charters; but the dissent provides no evidence that their speech in the pursuit of those objectives could be censored….

The [First] Amendment is written in terms of “speech,” not speakers. Its text offers no foothold for excluding any category of speaker, from single individuals to partnerships of individuals, to unincorporated associations of individuals, to incorporated associations of individuals–and the dissent offers no evidence about the original meaning of the text to support any such exclusion. We are therefore simply left with the question whether the speech at issue in this case is “speech” covered by the First Amendment. No one says otherwise.”

I haven’t read the case, and given that it’s nearly 200 pages I probably won’t have time. But this case, like so many other 5-4 decisions, likely reflects a much deeper, philosophical argument. Under the Majority’s view, as quoted above, nothing in the Constitution permits Congress to abridge the right of speech even with respect to corporate persons.

However odious the results of free corporate speech may be, the conservative wing of the court feels – as in so many other issues – that the proper vehicle to enable Congress to limit corporate speech is a constitutional amendment enumerating the power to do just that – rather than by a court decree which is arguably, or in fact, an extra-constitutional legal fiction.

Rather than directing your perhaps justified outrage at five judges, use your political speech to persuade our fellow man/woman to amend the Constitution to reflect your views. Like this law professor is doing: http://www.federalismamendment.com/.

An interesting aside is that, while ‘judicial activism’ (a term I use lightly because every judge at every level is is activist on some level – it’s like ADD, it’s on a spectrum rather than absolute ends) can accomplish desired ends far swifter than constitutional amendments (requiring, today, 38 states consent) an activist court in the 19th century doomed Indian Tribes through a number of legal and extra-constitutional fictions. For example, these fictions justified holding ‘title’ to Indian land by the ‘doctrine of discovery’ (granting Indians only a possessory interest so long as they occupied their land (in the European sense); unilaterally amending and abrogating US-Indian treaties; forcibly moving Indians West; allotting their reservations; and on and on.

Court fiats are a double edged sword with little or no remedy (except a different court) if you don’t like the Court’s result. The conservative viewpoint is a single edged knife the remedy to which is amending the Constitution. I prefer the later because it safeguards our Constitutionally enumeraged form of government and amendments effect greater, longer lasting change.

Mike disagrees with Justice Scalia:

I understand his originalist argument but for me the crux of the argument is whether extending the rights of free speech to corporations benefits or is injurious to a healthy democracy, which after all would’ve been of primary concern to the framers. It runs counter to common sense, common wisdom, and 100 years of court precedent to extend free speech rights to corporations.

Sorry I missed the rest of your reply (beyond the first paragraph). ooh wee baby. Have to tackle that one later. Thanks for your thoughtful response! Take it easy Ryan. TTYL

Just got around to reading your full post Ryan. Great stuff. Thanks for your insight.

Ryan hits it on the nose. I personally fear the Unions more than the “corporations” (that is a whole ‘nother thread), but I disagree with Mike on the crux of the decision, which I see as procedural, and not philosophical.

I see huge potential for abuse by opening up this avenue, but things need to be handled the right way.

I am pro-choice, but I don’t like the decision in Roe v. Wade (state’s rights, ninth amendment privacy, blah blah, etc.). Same sort of thing here…

On a more positive note, I would like to give a shout out to discourse. While emotions run high, I think that we (at least Mike, Ryan and I) might start to notice that our opinions are not so far apart as we may have thought before we started arguing about them.

Well put, and quite true Pila. I have a tendency towards rigidity of thought on some ideological sacred cows. Discourse grants flexibility and reveals common ground.

We all have our sacred cows. And yes they taste delicious. There’s strong policy arguments for and against restricting corporate / union speech. But note that Nevada, Utah, and Virginia have no restrictions on corporate speech in State elections; it hasn’t prevented Nevada from electing Harry Reid, Utah from electing a moderate governor (now serving in Obama administration), and Virginia from becoming (gasp) purple.