Roberts Court Statist to Core
by Tibor R. Machan
Of course, when someone in a house doesn't want others to come in, including cops without a warrant, this must be honored. As William Pitt The Elder, Lord Chatham (1708-1778) stated the principle, "The poorest man may in his cottage bid defiance to all the forces of the Crown. It may be frail—its roof may shake—the wind may blow through it—the storm may enter—the rain may enter—but the King of England cannot enter!—all his forces dare not cross the threshold of the ruined tenement!" Now if someone else who is co-owner of the place disagrees, the default position should be that the objection carries. The rights to private property and privacy trump convenience, unless there is a crime being committed.
Sadly the new US Supreme Court has not found this a principle worth upholding with a unanimous vote. Indeed, the very Justices who are often urging a strict interpretation of the U.S. Constitution, Antonin Scalia and Clarence Thomas, turned out to reject the unambiguous wording of the in the Constitution banning unreasonable searches of private homes. Instead, the ban was upheld by the more Left leaning members of the court, Stevens, Ginsburg, Breyer and Kennedy (who is all over the place, so his principles are never firm). Anyone who had hopes that Justice Roberts would stick to the working of the Constitution can now abandon this hope in favor of the reality that Roberts likes the power of the state, of cops to do what they prefer, never mind individual rights.
At least such is my current view of this new court. But then I have been arguing for several years that in our post-modern era principles have hardly any force where decisions and actions of governments are concerned. What we have instead is feelings, it appears. And that bodes ill for the rule of law. When government rests on how those who administer it feel about something, you are sure to get public policies that are unpredictable and largely arbitrary.
The trouble appears to be that government includes the justices--they are paid from taxes, perhaps the most awesome power of government and one the exercise of which is completely unjustified in a free country. As I have stressed many times, taxation is a relic of the age of monarchical rule, where the court basically owns the country and we must all pay for the privilege of living and working in it. Like renting an apartment in someone else's building.
We need a court that is independent of government, not beholden to all of its powers so it is hardly likely that these will ever be seriously challenged. If there is any wiggle room at all in the basic document of the country, its constitution, the justices who depend for their livelihood on the powers of government will be strongly tempted to vote for continued and expanded state powers.
Perhaps the only way to counter all this in the present situation is to educate the legislatures across the land. But they, too, tend to love power. As Lord Acton so wisely noted, "Power tends to corrupt, and absolute power corrupts absolutely."
The spectacle of the U. S. Supreme Court sanctioning arbitrary police actions, especially in support of the detection and arrest of victimless criminals, is totally antithetical to the spirit of a free society. And in most cases it is also to the letter of ours, which at least began with high ideals about turning into a free country. Those who hold out hope that the courts, because of a professed loyalty to the Constitution, will help the country recover its direction toward liberty have been dealt a wake-up call with what Justices Roberts, Scalia and Thomas did in dissenting in this Georgia drug case.
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