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."

TransVirginianal Talibaptists

I used to half-jokingly say that my move to Olympia was by way of seeking political asylum. But seeing as I came from Virginia, it is no joke.

It was bad enough that the district I left if represented in the US Congress by that hateful conniver Cantor, but the subsequent complete Republican domination of the state legislature--the oldest instrument of democracy in the country--has resulted in a frightening Talibaptist regime that threatens liberty to a degree that would have had the exalted founding fathers up in arms.

This week's news is that the Governor urged his party to back off a bill requiring ultrasound and a waiting period for anyone seeking an abortion. This happened only after protests in the capital city, as well as shock, ridicule, and criticism nationwide. More to the point, it happened after the Gov realized it could hurt his vice-presidential aspirations.

Because even in the Old Dominion, it turns out that state-sponsored rape is not easy to defend.

Rape? Too strong a language, some say, including the embattled Democratic minority in the Virginia legislature. When a medical professional in their midst looked at the bill and thought that the only way to fulfill it's requirements was to insert the ultrasound probe into a woman's vagina, he raised objections obliquely, as this snippet from the Washington Post* describes:

Northam consulted with medical experts, who confirmed that a vaginal probe would be needed in the early stages of pregnancy.

So when the measure came up for a vote in the Senate on Jan. 31, Barker and Northam raised the issue during the floor debate — but delicately. They used the words “transvaginal” and “internal.” But they didn’t use startling terms such as “vaginal penetration” and “state-sponsored rape,” which eventually came to dominate the debate.

Mindful of the teenage Senate pages sitting in the chamber, Barker said, they wanted to be sensitive with their language.

Yes, by all means, protect those tender ears. Let them find out later when they try to terminate the bastard child of some Family Values Republican senator who fucked them. The fact is, the bill would force a woman to have a foreign object inserted into her vagina, whether she wants it or not, simply because she wanted a legal medical procedure.

It took a woman in the legislature to acknowledge the tyranny, and to propose that it be administered fairly across gender lines. (Because that's how deep the problem is in the Commonwealth, that the fix to injustice is to broaden its scope. I know she was trying to highlight absurdity, but what if the amendment had passed, would women be any better off?). Here's more from the Post:

Sen. Janet D. Howell (D-Fairfax) certainly got the point. In an effort to highlight what she considered a gross personal intrusion, she proposed an amendment requiring that men get a rectal exam.

“Prior to prescribing medication for erectile dysfunction, a physician shall perform a digital rectal examination and a cardiac stress test,” declared the amendment, which the Senate clerk read aloud on the floor.

The amendment failed, and the ultrasound billed passed. McDonnell, in a break from his usual practice, announced that day that he would sign the legislation.

So yeah, that's what it has come to in the state where religious freedom and the Bill of Rights began. McDonnell has backtracked, at least as long as his name is bandied about as a potential running mate to Romney. If Santorum wins, though, he may be able to once again support state-mandated rape.

Oops. I said the R-word again. Can I not euphemize with "trans-vaginal," or some other sterilized substitute?

No. If there were some medical necessity, I would not object to legal requirement of a particular procedure, like making surgeons wash their and and use sterilized instruments when cutting someone open. (Ironically, there are those in the religious right who object to forcing true believers to avail their unsuspecting kids of medical technology, but I digress.) But there is no medical necessity here, and furthermore the zealous foes of abortion would happily outlaw the procedure even when it safeguards a mother's life. A woman may want to terminate a pregnancy brought on by rape, but she would have to be violated again. A woman may recognize that she cannot give the child a decent life, that it may be born addicted to drugs, that it is likely to end up a ward of the state, or homeless, or incarcerated, but she would still be forced to go through this humiliation.

Freedom-loving Americans seemed outraged when an Egyptian woman, detained by the military there, was forced to undergo an intrusive "virginity test," recognizing it as a thinly veiled rape. But even there, in a country dominated by a religion we like to think is more unjust to women than Christianity, the courts spoke firmly and directly against such assaults. It makes me sad that in the state where I was born, Talibaptists are not even satisfied to not just let such a heinous violation occur in some rogue facility, but demand that it be the law of the land.

The Virginia Republicans appear to have backed off for the moment (the more aware among the caucus appear embarrassed by the bill), and have even temporarily abandoned their quest to bestow life-protecting "personhood" on a fertilized zygote, but it's hard to believe that they will give up. Lost in the reporting, which focuses on omission of the rape clause, is the fact that while women will now be able to refuse the rape, they must still undergo the ultrasound and the waiting period, this despite the fact that most citizens of the state are against the bill. In the end, the state is still mandating a medical procedure (but will not pay for it), even though the professionals say that the "jelly on the belly" ultrasound cannot achieve the legislated aim (determining gestational age) early in a pregnancy.

But pay no mind; the more deluded and coercive the Righteousness, the more persistent it is. They will continue pushing, sure that while it is OK to send people to war and death row, the Right to Life justifies any means. Should they ever erode the right to personal reproductive choice so completely as to prevent abortion, they will move on to other tyrannies. Tragically, "Sic Semper Tyrannis" has become a sick joke. I only hope that enough Virginians who cherish freedom have not joined the diaspora, and will keep these tyrants in check.

* Yes, Virginia, I know, the Post is a liberal rag unworthy of reading. But I tried to look this up in the Richmond Times Dispatch and got tired of waiting as an ad site loaded. I will admit that the Post, like so many alleged news organizations these days, spent most of its time talking about perceptions, and linking to comedy skits, rather than examining the nitty gritty, or at least, as Mencken advised, afflicting the comfortable.