16 August 2013

Avoiding principles to prove you are "tough on crime" doesn't make you conservative

In a recent Wall Street Journal column, Daniel Henninger suggests that any critic of New York City's "stop and frisk" policy is self-evidently soft on crime.

His argument is reminiscent of those previously used by conservatives who defended torture on the basis that "it works," an argument I addressed a while back. Setting aside for a moment that there is little (if any) evidence that stop and frisk does, in fact, "work" to reduce crime (New York's crime trends are in no way exceptional compared to many jurisdictions that do not exercise such policies,) the real question is: why should that matter?

Henninger goes so far as to deride U.S. District Judge Shira Scheindlin's statement that "this Opinion takes no position on whether stop and frisk contributed to the decline in crime....This court's mandate is solely to judge the constitutionality of police behavior, not its effectiveness as a law enforcement tool."

I suspect that in other contexts Henninger (and other defenders stop and frisk) would be more sympathetic to the view that Constitutional constraints on state power serve a higher, and more important purpose than utilitarian arguments in favor of "law and order by any means necessary." Had Obamacare been struck down on a (legitimate) Constitutional basis, would Henninger have lamented that as a result, more poor people would now die for lack of health care?

It is in fact quite appalling that the only argument so-called limited government conservatives can muster in favor the policy amounts to little more than "a police state is a safe state."

Henninger also dredges up Justice Jackson's old saw about the Constitution not being a suicide pact, a (mis)quote that is becoming quite a favorite of the police-state right these days. Before using it, you might want to read a bit more about the case and the context for that quote.

In Terminiello vs. Chicago, the Supreme Court was asked to rule on a Catholic priest's conviction for a public speech under an Illinois statute because such speech "may constitute a breach of the peace if it stirs the public to anger, invites dispute, brings about a condition of unrest, or creates a disturbance, or if it molests the inhabitants in the enjoyment of peace and quiet by arousing alarm..."

In its decision overturning that state law, the majority pointed out that the "argument here has been focused on the issue of whether the content of petitioner's speech was composed of derisive, fighting words, which carried it outside the scope of the constitutional guarantees. We do not reach that question, for there is a preliminary question that is dispositive of the case." (Emphasis added; references removed.)

Dismissing the possibility that Father Terminiello may (or may not) have violated longstanding prohibitions of incitement or used "fighting words," the Court instead addressed the clear Constitutional issue of an overly broad statute that unconstitutionally restricted free speech. In other words, the Court chose, like Judge Sheindlin, solely to address the Constitutionality of the law. Gee, how crazy is that?

The facts of the case, recited by none other than the dissenting Justice Jackson, show that an unruly mob was in place outside the building, and had begun attacking people entering the building, and throwing rocks through windows, before Terminiello even began to speak. Nevertheless, in his dissent, Henninger's favorite justice thundered:
This Court has gone far toward accepting the doctrine that civil liberty means the removal of all restraints from these crowds and that all local attempts to maintain order are impairments of the liberty of the citizen. The choice is not between order and liberty. It is between liberty with order and anarchy without either. There is danger that, if the Court does not temper its doctrinaire logic with a little practical wisdom, it will convert the constitutional Bill of Rights into a suicide pact.
One suspects that Justice Jackson might well find the cancellation of an Ann Coulter speech at the University of Ottawa to be an example of "ordered liberty," as the university clearly was only trying - just like the City of Chicago in 1949 -  to avoid "disputes," "disturbances" and "conditions of unrest."

After all, as Jackson also argued, our "freedom of speech exists only under law and not independently of it. What would Terminiello's theoretical freedom of speech have amounted to had he not been given active aid by the officers of the law? He could reach the hall only with this help, could talk only because they restrained the mob, and could make his getaway only under their protection."

The reasoning seems to be that if enough people hate you and want to throw rocks at you, then you ought to just shut up or be jailed. It's difficult even to reconcile Justice Jackson's reasoning with his own decisions in other cases during his tenure, much less with a traditionalist understanding of the First Amendment and natural rights.

It turns out that the Fourth Amendment is also part of the Constitution, and although "tough on crime" types may not have noticed, it has been steadily eroding for quite some time. At the risk of making a slippery slope argument, let's just say that maybe it's time to at least dig in our heels a little bit and give some thought to climbing back up. That isn't "soft on crime," and unlike soft on crime aspersions cast on opponents of "stop and frisk," it also isn't softheaded.

In other words, how about discussing principles for once?