Stripped Constitution: The SCOTUS Scrotum Decision

For what may be the first time, I find myself siding with a BMW owner,...and dealer,...from New Jersey. The endtimes may indeed be near.

What could trigger this? The Supreme Court of the United States yesterday handed down it's decision on a case brought by a man who thought it was unreasonable that the jail he was brought to, having been mistakenly arrested for a long-since paid court fee,* subjected him to repeated strip searches.

Did that last sentence in the footnote get your attention? Elsewhere, the Post is wagging an allegedly liberal finger at Pat Buchanan for saying it's OK to be wary of (and, it follows, to shoot) black guys in hoodies, but here, there's no mention that the victim of an unreasonable search is black until deep into the story. Of course. But my topic lies elsewhere today, so the sad routine of racism in our country once again gets passed over.

Back in the hallowed halls of justice, a 5-to-4 majority figured that it is perfectly acceptable to require strip searches. Anyone entering the general population of any correctional facility can be required to lift his balls, spread ass, and turn around. I do not know whether the decisions specify whether a warden can issue the "spread your vagina" command, but it sounds like it, as long as he obeys the letter of the law and looks but doesn't touch. This happens to be the same rule that governs strip clubs, and one wonders where the 5 gentlemen in the majority derived this theory.

I jest, and am further tempted to riff on the Teabag Party-ish decision in a case featuring a nutsack. But the ongoing erosion of the right against unreasonable search and seizure is dead serious. During the Bush II administration, the assault personal liberty bulled through the china shop of our Constitution, and thus far Obama has showed little will to do more than sweep the shards out of sight. The narrow majority imposing the legal theory that it is reasonable to strip search everybody, to have them pose and manipulate genitals, that majority relied on Bush appointees.

Who offered Anthony Kennedy (so often termed the "swing-vote" because a Reagan-appointed conservative seems so liberal these days) as the front man to write the main decision. We are sufficiently deep into this post now that I may reveal the buried lead: the rationale for this decision has more to do with the profit motive of privatized government functions than just about anything else. The expansion of State power here is fairly minor compared to what they already get by with.

Kennedy reasons that with 13 million or so people arrested in this country every year (eat yer heart out, Stalin), "unreasonable" refers not to the strip-tease search, but to the expectation that a correctional facility might have to slow down processing to exercise judgement. Yes, this will apply to the remaining government-run jails and prisons (who, after years of massive cuts in public sector spending may see some benefit in streamlining), but this decision is the spawn of the prison industrial complex. Wherever there are efficiencies to be gained, such as avoiding dependence on a minimally-compensated guard to discern between gang-bangers and first-timers, there is profit to be made (and maybe some side money on the strip search videos for entrepreneurial guards). Small perhaps, but in economies of scale it still matters. If the Bill of Rights obstructs such rationalization, it should be pared back. Ergo Kennedy's bizarre reversal of whose "unreasonable" holds sway.

I am just a citizen, and you may be one too. Not so long ago, we had a right to expect that even if the police had an interest in us, they needed things like warrants, probable cause, or even reasonable suspicion to listen to our private conversations, open our mail, or search our persons. No more. The State (or in its stead, a corporate employee) can do everything short of entering my ass and yours. Poindexter may have been briefly chided, but the NSA taps all telephone and computer communication on the off chance it may turn up something, sorta like Google. The post-911 reality is that based on intrusions considered unconstitutional for two centuries, any of us can be disappeared into a federal or corporate or third-country cell and never be heard from again. I wish this were hyperbole, but it it not. At most, it is unfulfilled potential. And with Dick Cheney still eligible for the presidency and in possession of a new ticker, that's some scary potential.

Until such time as all dissenters get the Gitmo treatment, our main worry is that we become profit generators for the prisons. Like maybe the repeated food-thief who gets a lengthy third-strike sentence. Or the mentally ill guy shunted from now-defunct public sector services to incarceration. Or a woman with a "marijuana joint" doing time due to our modern Prohibition, which is seen as pointless and unsupportable even by conservatives like Pat Robertson. I cite him not because I respect his opinion, but because it is instructive that not even a guy who will argue that disasters are his god's wrath over gayness wants to try and make sense of the war on drugs. Pat doesn't seem to understand the primacy of profit, or else he'd see that that war on drugs makes perfect sense if you run a prison corporation.

So here I am, taking sides with a BMW guy and a televangelist. Strange world. A world in which a guy can be locked up for seven days on a demonstrably false charge, and file suit about having had his sub-scrotal region examined (the week in jail for no reason being so routine for a black man these days that is passes without remark). And lose the case. A world in which I am a little scared to type musings that an Obama re-election could switch the balance of the Supreme Court, lest Echelon or Carnivore or whatever the new system is decide to get Mo to Gitmo. But I did. Next year I may not have that freedom.


* From the Washington Post story:
"He spent seven days in jail because of a warrant that said, mistakenly, that he was wanted for not paying a court fine. In fact, he had proof that the fine had been paid years earlier; he said he carried it in his glove box because he believed that police were suspicious of black men who drove nice cars."