The recent news about the NSA spying programs has sparked debate about the limits of government power and made amateur constitutionalists out of many of us. Though the NSA story put the spotlight on the Fourth Amendment, other provisions of the Constitution are under attack. Here are some of the other issues keeping the real constitutional scholars busy these days.
The government’s seizure last spring of the Associated Press’s phone records, and their labeling of reporter James Rosen as a possible “co-conspirator” constituted a violation of the First Amendment’s protection of freedom of the press. Anonymity of sources is a bedrock principle of good reporting, especially when relying on government officials who are not authorized to speak to the press. This is often the case when citizens most need to know what our government is doing. When the government threatens to put a reporter in jail for doing his job, it intimidates the press as a whole.
The National Security Agency’s (NSA) meta-data programs on phone and internet communications arguably violate the Fourth Amendment’s provisions against warrantless searches. Even the NSA itself is unable to deny that its activities have been, at times, unconstitutional. In a letter sent from their office they admit to violating the Constitution on at least one occasion. There have been other reports by unnamed intelligence officials that the NSA inadvertently overstepped what even it sees as constitutional bounds.
A product of the post-9/11 era, the no-fly list is compiled and maintained by the federal Terrorist Screening Center and contains the names of people not permitted to board an aircraft for travel within or to the U.S. or over U.S. airspace. In addition to preventing people from initiating travel, its use has also caused U.S. citizens to be trapped abroad. For instance, a U.S. citizen attempting to return to southern California was forced to spend four nights at the Bangkok airport and another 10 days at a Thai detention center, before finally being allowed to go home just last Monday. Travelers on the list have sought an explanation from the government and an opportunity to clear their names, only to be refused. The ACLU is currently suing the government on behalf of 13 clients, arguing that the no-fly list violates the Fifth Amendment's due process guarantee. In addition to objecting to the government's refusal to allow any procedures to correct errors, the ACLU rightly wonders what is to stop them from creating a no-drive list, or any other onerous list.
The War on Drugs has been a widely recognized failure. Not only has it been disastrous policy, but combined with other “get tough” sentencing laws, it has led to violations of the Constitution, especially the Eighth Amendment’s prohibition against “cruel and unusual punishments.” Because many such laws have minimum mandatory prison sentences, the discretion of a judge to devise reasonable punishments is negated. As a result, the punishment will often not fit the crime, especially for multiple offenses. Take the case of Weldon Angelos, who received a 55-year sentence for having a small amount of marijuana and a small hand gun. The judge, who was bound by minimum sentencing requirements, even urged then-President Bush to commute Angelos’s sentence to 18 years or less, calling it “unjust, cruel, and even irrational.”
The resurgence of debtor’s prisons in the United States is one of the most underreported stories in recent history. Debtor’s prisons are, as the name implies, prisons for people who cannot pay their debts. Banned under federal law in 1833, they have made a comeback in the years since the financial crisis, as cash-strapped states and localities have looked for new revenue. Many have hired private probation companies to collect court fines for misdemeanors, and they then add on their own fines. Those unable to pay the fines are put in jail, but that doesn’t stop further fines from accumulating. This can easily lead to outrageous fines such as the one given to Gina Ray, who was ultimately fined over $3,000 and jailed for what started as a speeding violation. While those who can afford to do so simply pay their fines, the poor cannot, and they wind up in prison; essentially, they are being punished for being poor, a violation of the Equal Protection Clause of the Fourteenth Amendment.