Politics of Liberties & Rights

 

Constitutional Level

-        limits on legislative & executive authority

-        adjudication of government actions by federal courts

 

Societal Level

-        campaigns by individuals, interest groups, and social movements for enforcement and recognition of rights and liberties

o     e.g. NARAL-Pro Choice v. National Right to Life on abortion/reproductive freedom

o     ACLU, People for the American Way on Patriot Act

-        public discourse outside government settings

-        petitions and lobbying of government branches

 

Terms of Debate

-        What liberties rights are inherent or implied in the Constitution?

-        How to interpret Constitution?

o     Moral reading v. strict construction

o     Living document v. original intent

-        Who should interpret Constitution?

o      Legislatures v. judiciary

§       Should Congress’ views trump the Count’s views

§       Impeachment and removal of judges based solely on their interpretations

 

-        What powers do legislatures have?

o     Democracy v. liberty

§       Will factions tyrannize the minority or majority?

§       Does the “public good” trump liberty?

-        What prerogatives do executives have?

o     Is what is necessary what is proper?

o     Should extra-Constitutional action be excused rather than justified?

o     Who decides what is necessary for the public good?

 

 

 

Tough Cases

 

Digital Millennium Copyright Act of 1998 (Public Law 105-304)

-        criminalizes unauthorized decryption or break copy-prevention parts of commercial products

-        outlaws manufacture, sale, or distribution of code-cracking devices that could be used to illegally copy software

-        Congress has authority to regulate this based on Art I, Sec. 8: The Congress shall have Power…

To promote the Progress of Science and useful Arts, by securing for limited Times to Authors and Inventors the exclusive Right to their respective Writings and Discoveries;

 


USA PATRIOT ACT of 2001 (Pub.L.107-056)

-        Uniting And Strengthening America By Providing Appropriate Tools Required To Intercept And Obstruct Terrorism

-        Expanded provisions to search & seize property

 

Sec. 213

-        delays notification of search warrant

o     “sneak and peak” and “sneak and seize”

o     wire-taps had delayed notice


Section 215

“…order requiring the production of any tangible things (including books, records, papers, documents, and other items) for an investigation to protect against international terrorism or clandestine intelligence activities, provided that such investigation of a United States person is not conducted solely upon the basis of activities protected by the first amendment to the Constitution.”

o     No probable cause must be shown

o     Covers third parties




Section 505

-        Telephone toll and electronic transactional records

o     request the name, address, length of service, and local and long distance toll billing records and wire or electronic communication service provider records

o     “national security letter”

o     no judicial order needed

 

Should policy effectiveness or administrative efficiency trump liberties & rights or vice versa?