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lilikoi's avatar

How have our civil liberties been eroded over the last decade or two?

Asked by lilikoi (10028 points ) April 22nd, 2010

I know there are oodles of examples, but I’m having a brain fart since I’ve disconnected myself from politics for so long.

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25 Answers

TexasDude's avatar

Civil liberties in the US for all you specificity nuts out there have been eroding since 1776. That’s just my opinion. Feel free to flame away.

lilikoi's avatar

Yes. I agree. I want specific examples, though, or references to them. For example, “9/11”.

Seek's avatar

No flame from me, homie.

bob_'s avatar

Take a look at this list.

Captain_Fantasy's avatar

Patriot Act

CyanoticWasp's avatar

Yes. It doesn’t only happen when Congress is in session, or when the President signs a bill into law or appoints another regulator (although those are the milestone events). It also happens every working day, too.

If you want simple examples…
Do you remember when you could board a plane without taking off your shoes?
... without having to disclose all of the contents of your carry-on luggage to inspectors?
... without being patted down for whatever else might be setting off the metal detectors?

I recall having lockers that could be used in airports to temporarily store carry-on luggage while you walked around the building.

I recall when drivers could register automobiles without having to provide proof of insurance. (There was also a time when automobiles and other vehicles, such as boats, for example, didn’t even need “registration”.)

I recall being able to pick up my kids from school without having to undergo an interrogation.

There was a time once when people could set themselves up in any business they wanted without regulation, permits, licenses, qualification tests and hearings from every public agency in existence. (And the fact that business all works so smoothly now is testament to how effective all of that is, right? ~~)

(I don’t deny that there is an element of good sense in some of that, but we once used to have the right to travel without frequent personal inspections.)

Seek's avatar

@CyanoticWasp

Remember being able to kiss your relatives goodbye before they got on the plane?

TexasDude's avatar

@lilikoi, Whisky Rebellion, slavery, expansion of federal power under most US Presidents, Indian relocation and massacres, the Bonus Army, MKULTRA, the alien and sedition acts, separate but equal, various infringements of property rights, the Patriot Act, etc.

bobloblaw's avatar

It really depends on how you define civil liberties. I suppose the starting point for civil liberties in the US is the Bill of Rights. Even then, I’d say that’s still a bit subjective. Our Supreme Court has done its best to divine what the Founding Fathers meant in the comma-ridden and antiquated language (by modern standards) infected Bill of Rights.

@CyanoticWasp @Seek_Kolinahr I really wouldn’t consider those things to be “civil liberties” as enshrined in the Constitution or even the Declaration of Independence. I mean, do we have a fundamental natural right (grounded in what the Founding Fathers actually intended and believed) to drive a car? to have lockers to store your luggage in airports? to be able to kiss your relatives goodbye before they got on the plane? I’m not so sure that we do.

CyanoticWasp's avatar

@bobloblaw if you don’t believe in a fundamental right to “privacy” not explicitly declared in the Constitution (including freedom from all so-called ‘drug prohibition’, by the way) ... then what’s the point of the Bill of Rights?

Siren's avatar

Off the top of my head, in the last decade, to my knowledge—

• Patriot Act – taking anyone into custody for no specific reason, indefinitely
• Keeping tabs of what is photocopies at libraries, stores and other public venues
• Illegal telephone surveillance and wire-tapping of citizens without a court-order
• Holding “prisoners of war” indefinitely without due process
• Recent x-raying of airline passengers bodies before boarding, displaying nudity

This year alone:

• Google trying to fight governments who want them to surrender search and other online activities of their country (including the US)
• Arizona governor soon to sign legislation for police to check at-will any hispanic-looking individuals on the street for their immigration status

bobloblaw's avatar

This is definitely going to be extremely long-winded. I apologize.

@CyanoticWasp You’re right. I don’t believe that there is explicit language declaring that there is a fundamental right to privacy. The literal language just isn’t there. Unfortunately, commentators are accurate in their statement that the word “privacy,” and all permutations thereof, does not appear in the Constitution, but they are only half right. There is a fundamental right to privacy that exists in the penumbra of the Bill of Rights. I believe Justice Douglas put it best:

“The foregoing cases suggest that specific guarantees in the Bill of Rights have penumbras formed by emanations from those guarantees that help give them life and substance. Various guarantees create zones of privacy.” Griswold v. Connecticut, 381 U.S. 479 (1965).

However, that fundamental right to privacy must be balanced against the compelling interests of the state. Thus, in your airline example, the state has a rather compelling interest in ensuring the safety of people when they go flying. I won’t make any judgments as to whether the policies used are the best way to do it or the most targeted way to do it (best = least constraining on your rights).

I don’t think airport lockers are really an issue of privacy. Airports are state facilities. If the state decides to not have lockers in their facilities… whose to say that they can’t do that? It would be a completely different thing if they said that private airports can’t have lockers. If you’re talking about the contents, then, yea, I believe you do have protection.

The auto insurance argument was lost on one basic classification: the Court simply did not see driving a car as a fundamental right. It is seen as a privilege. That’s why the state can impose insurance requirements. Note, however, most insurance-requiring laws don’t explicitly require insurance. All they require is “proof of financial responsibility.” Theoretically, you can drive around with your bank statement showing that you have millions as proof.

Picking your kids up from school? I can’t recall a case off the top of my head where someone actually sued over it (let alone interrogation-type policies). The thing is that our court system is reactive. The state may have violated your rights and, of course, they shouldn’t, but it is up to you to force the state to comply to the requirements of the Constitution.

As far as business regulations go, it depends on the industry and the regulation in question. For example, the county health department has regulations re: the hygiene of restaurants. Arguably, the state has a compelling interest in ensuring that the restaurant isn’t selling toxic foods. That’s how they justify it. I also take issue w/your implication that just b/c it doesn’t run smoothly, it is therefore a failure. Nothing is perfect and if it needs to be improved, then the people must demand it from their legislators.

Note that I’ve used a legal term of art: “compelling state interest.” When measuring whether a fundamental right may be legitimately infringed upon, the Court requires the state to show: 1) that there is a compelling state interest involved; 2) that the law in question is the least restrictive means to do so; 3) that the law is narrowly tailored for that purpose. This is the highest level of scrutiny (of 3 levels total) and the state usually loses when this level is used.

Long post is long.

Zaku's avatar

Um, of course, yes, very much so.

wonderingwhy's avatar

How? I’ll take a literal approach… Our liberties have been eroded by our continuing to accept that we only have the rights granted to us by the state.

CaptainHarley's avatar

Amendment ten of the US Constituion:

“The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people.”

CyanoticWasp's avatar

I can hardly improve on the statement that @wonderingwhy made, nor the direct quote from @CaptainHarley, but I also want to reply to some of your statements, @bobloblaw.

You cited the state’s “compelling interest” in safety. And that mantra seems to be the basis of so much mischief by Congress and the Executive both. Just like “interstate commerce” serves as a catch phrase to cover a lot of other whittling and outright ignoring of the dictates of the Constitution.

As for “safety”, wouldn’t we all be “safer” if we boarded our flights naked, hands manacled and feet shackled to the seats? Granted, we haven’t gotten there… yet… but how much more clothing will be stripped from us, either directly (“please remove your jacket, belt and shoes for inspection, thank you”) or figuratively via the full-body scanners soon to appear at an airport near you? Or better yet, I suppose, we could decide that safety trumps all, and we just won’t fly any more airplanes in the US.

The “compelling interest in safety” used to be covered, after the first airline hijackings in the 1970s, by “don’t let any rational (that is, non-suicidal, profit-motive-based) criminal board with a weapon that he can use to commandeer the aircraft”. No one then anticipated that terrorists would willingly blow up the plane or use it as a suicidal weapon as was done in 2001. The 2001 attacks could have been avoided if the FAA and various carriers had all agreed after the first hijackings in the 70s that “we won’t allow a plane’s cockpit to be violated or the flight plan to be interfered with by anyone making threats in the cabin”—and then following through on that plan.

Instead, we adopted what seemed at the time like a more rational strategy of disallowing any weapons on the aircraft, but still maintaining a relatively open flight deck. It seemed to be sensible at the time, anyway. Maybe the paradigm should have changed after 2001 to “check passengers for weapons on boarding, and if they don’t have any, issue one to each”. After all, it’s not as if our planes are filled with terrorists; 99+% of the flying public just wants to get from Point A to Point B and get on with their lives.

But we still have this idea that “legislation and better inspection” will cure things.

It won’t, unfortunately, and the price we’re paying is more legislation and more onerous and detailed inspection.

I’ve been surprised that since 2001 no terrorist group has decided to mount a coordinated attack… at the luggage screening points. How many of us would stand in line at an airport screening station if on a particular day at, say 3 PM Eastern Time, 50 or 100 airports were so attacked at once, from coast to coast?

What kinds of inspections, regulations and prohibitions on lawful activities would be the result of that attack? How far does anyone think we can move out the “inspection perimeter” and still call ourselves a free nation?

Ron_C's avatar

There are certain rights we are better off without. For instance:
1. We can no longer own slaves.
2. We can’t make mixtures of various chemicals, mix the with alcohol and call them “Miracle Cure”
3. You have to be older than a 2nd grader to buy and own gun.
4. You have to be at least 16 to work in a factory.
5. You have to have liability insurance to protect people from damage you may do with your car.
6. You can only have one wife or husband.
7. You are not allowed to shoot American Indians on sight.
8. You are allowed to give the same Indian a whiskey without being fined or jailed.

On the other hand, the government has many more rights. They can take your house to build a shopping center, they can tap your phone, check you library usage, send you to a foreign prison without warning one giving your admitting, to your loved ones, that your were abducted.

It’s not a issue of us loosing rights it is the government assuming more of them.

filmfann's avatar

Warrentless wiretaps.
Torturing prisoners.
Denying prisoners access to the courts.

wundayatta's avatar

Shrub has conducted the single most successful assault on civil liberties in the history of the nation. We need to eliminate the so-called “Homeland Security Agency.” Not only is it taking away that which we need, it is also doing worse than neutral job on combatting terrorism. It is creating more terrorism than it stops.

WolfFang's avatar

The freedom of protest. It’s stupid one has to get a permit to protest. A permit. It just completely takes the fire out of protest, making it all calm and pacifist.What if you are protesting the very act of having to get a permit to protest? No, such things like that are ridiculous, if people want change, then they must do the same thing MLK and others did in the civil rights movement. People can’t just accept things they know are not right, long live civil disobedience!

bobloblaw's avatar

@CyanoticWasp I would disagree with you as to the first part. The “compelling state interest” level scrutiny has operated as a very powerful limit on state power. That level of scrutiny not only places the burden on the state, but is a very difficult hurdle for the state to jump over. Usually, that level of scrutiny has tended to almost automatically result in the state to have lost the case. However, when it comes to national security, you’re right: the Court, for whatever reason, has felt it necessary to defer to the other branches of government. That happened in Korematsu v. US and that happens today. Historically, they’ve been skiddish in undermining (to use the term as loosely as possible) the Executive’s and Legislative’s authority in those matters. What’s interesting is that Korematsu was decided by the Warren Court (probably considered one of the most liberal of courts. They expanded the scope of the Commerce Clause, after all). Even more interesting, Earl Warren later regretted his support of the Korematsu decision.

As far as what you say about the policies that govern what we can/can’t do/wear while traveling by air, I’d say that’s outside of the scope of the Court’s direct analysis. What you’re talking about is efficacy of a course of action as opposed to whether the state actually has an interest in trying to secure a particular result. Those are two different things. The state may have an interest in safeguarding airplane passengers, but the efficacy of a policy may be suspect. That’s where I would draw the distinction.

On the whole, I agree with you: I question the efficacy of the regulations/policies that have been instituted in regards to actual prevention of terrorism, but I would still say that the state does have that legitimate compelling interest. When it comes to matters of specialized knowledge, the Court is the least capable body. As I have stated before, they tend to defer to the other branches of government when it comes to national security. Thus, we get ridiculous requirements like shoe removal before flights. This continues b/c 1) no one really has made enough of an issue out of it and 2) the Court is poorly equipped to handle specific matters of policy to begin with. They can issue general proclamations (e.g. “There shall be desegregation in public schools”), but aren’t exactly good at determining the specifics of execution. Personally, I think that is why they tend to defer to the other branches.

In regards to, more or less, everyone that has said that our rights come from something that isn’t the state, I would say this: I agree. However, government, particular representative democracy, serves to impose order upon the idea that we hold those rights (as opposed to the state). It’s great to say that those rights are ours to do with as we please, but what are the outer limits? When and how do those rights begin to erode the rights of others? Our Constitution is meant to impose some kind of framework and order upon the, dare I say, chaos that is our fundamental freedoms.

mattbrowne's avatar

A little, because of after 911 actions. Overall, it’s still a privilege to live in the US or Europe when it comes to civil liberties. We should not belittle our accomplishments.

cletrans2col's avatar

@mattbrowne A few episodes of “Locked Up Abroad” drives the fact home for me

CaptainHarley's avatar

All of the above… and more! Obama signing the NDAA was kind of the last nail in the coffin of civil rights in the US. Now you can be arrested without charge, for any reason or for no reason, and held incommunicato indefinitely with no access to friends, family or even a lawyer!

Hypocrisy_Central's avatar

Take a look at the last 24 to 30 months, the vote has been castrated.

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