Roberts Court Statist to Core
Tibor R. Machan
Of course, when soemone 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
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
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.
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 workding 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, enver 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
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
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
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 George drug case.