One normally does not picture a sitting federal judge adorned in both a black robe and a red rubber nose.
Yet this is the common mental image we have of the U.S. Court of Appeals for the Ninth Circuit, alternately referred to as the Ninth Circus or the Numb Circuit due to the paired inanity of its decrees and a rate of overturned decisions bested only by mothers arguing with their kids over cotton candy being a dinner entrée. With consistency bordering on either persistence or lunacy, the Ninth Chronic announces one or another decision which the Supreme Court eventually tosses out due to the self-evident self-medication of the lower bench.
Such is the case with a recent ruling in which Nonsensical Ninth declared that your driveway was not private property. Allow me to repeat this, because you may have had a different notion when you paid money for and received a deed to your land, which included a driveway. The Nutty Ninth has decided – at least for acts of espionage on citizens – your driveway is not private nor property.
The case revolves around a Federal government agency that wanted to track a suspected marijuana grower. Without the benefit of a warrant or other authorization, one or more DEA agents crept onto the suspect’s formerly private property and attached a tracking device to his vehicle. In every other circumstance of past jurisprudence, a warrant was required to violate property boundaries in order to electronically monitor a suspect. Not having such authorization – a requisite check-and-balance to preserve liberty – has caused numerous cases to be tossed out of courts from leftist to right-wing coasts.
The Cuckoo Court has now sanctified government trespassing for surveillance.
Skipping past legal incantations and misdirection’s that would impress Penn and Teller, the Ninth Numbnuts insisted that ungated driveways are openly accessed by members of the public including folks like your milkman, UPS driver and neighborhood kids. The point that our Ninth Circuit Nimrods nimbly pranced past is that citizens give express or implied permission to certain people to come onto a driveway. You do not expect the FedEx delivery man to leave your overnight envelope on the sidewalk. Your milk would rot before you discovered it on the curb. And even though you might not like kids in your yard, you expect and accept that as part of living in the suburbs.
You do not expect or accept the Feds crawling onto your turf on a moonless night to plant bugs on your buggy.
Assume that the Schizophrenic Supremes will overrule the Cloud Nine Ninth – they have made a habit of it. But the case stands as an example of incrementalism via judicial eradication of rights. Before FDR was laying under mistresses, federal courts held that the Constitution’s commerce clause only allowed congress to make equal the buying and selling of goods between states. Some sloppy Raw Deal era linguistic nonsense caused this otherwise limited authority to become the ‘anything goes clause’ and created the federal leviathan we battle today. It was not a moment of legal revolution, but the beginning of an incremental evolution and decent of the American constitutional species.
Left unchecked, an equally hideous erosion of the definition of ‘private’ and ‘property’ would prevail. Under the same theory of public access, a future court could assume any place where you allow strangers to enter would no longer be private. Make the mistake of inviting a Jehovah Witless into your living room and your family space would then no longer be a private place – installing surveillance cameras inside and without a warrant would be permitted. Same might apply if you are prone to leaving your curtains open, as that would be an indication that you do not consider what occurs in your living room to be private activity.
Next stop, concealing a homing device in your wife’s cooter.
All this brings us to why this won’t bother Democrat Senators. If availability of access is the criteria for privacy, then people with tall fences and iron gates achieve automatic immunity from government surveillance (and if the Supreme’s do not overrule the Ninth Nuthouse, then I’m buying stock in fence companies). Thus rich people are granted protections not afforded to the average Joe or Jane. The richer the person, the less worry they’ll endure about federal law enforcement improperly entering their property because of visibly advertised privacy preferences.
This would be 7/10ths of congress … the Democrats.
Of the top ten wealthiest members of the most exclusive club in America, 70% are of the party of the little guy. Senator and failed presidential candidate John Kerry tops the list, though in all fairness to him he married his money (and given how sobering scary looking his wife is, he is better off being married to her mulla). Kerry carries company with filthy rich folk like Senator Rockefeller, Senator Lautenberg and a woman who steers government projects to her contractor hubby, Senator Feinstein.
I wager all these folks have very high fences and gates with enough iron to build a battle ship.
UPDATE: Sanity prevails elsewhere in the court system. A different count has ruled that data from cell phone towers is detailed enough that government acquisition of said data requires a warrant.