Coyote Blog

One of the things I have always found frustrating and confusing is the number of folks who call themselves "civil libertarians" who simultaneously have not problem with economic and nanny-state hyper-regulation.  In fact, ACLU types are often at the leading edge of calls for more regulation on safety or prices or property or whatever.

I have never been able to understand how the two are not inextricably linked.  How can bright-line protections of freedoms of choice and action be essential in one sphere of our lives but unimportant in others?  Here is just one example of how they work together, from none other than our egregious Sheriff, Joe Arpaio:

Arrest records from crime sweeps conducted by the Maricopa County
Sheriff's Office add substantial weight to claims that deputies used
racial profiling to pull Latino motorists over to search for illegal
immigrants....

even when the patrols were held in mostly White areas such as
Fountain Hills and Cave Creek, deputies arrested more Latinos than
non-Latinos, the records show. In fact, deputies arrested among the
highest percentage of Latinos when patrols were conducted in mostly
White areas.

On the arrest records, deputies frequently cited minor traffic
violations such as cracked windshields and non-working taillights as
the reason to stop drivers.

"These are penny-ante offenses that (police) almost always ignore. This
is telling you this is being used to get at something else, and I think
that something else is immigration enforcement against Hispanic
people," Harris said....

Brian Withrow, an associate professor of criminal justice at Wichita
State University, said racial profiling is very difficult to prove.

States have thousands of traffic laws on the books, so police can
almost always find a reason to stop someone. The U.S. Supreme Court has
ruled that police can legally use minor traffic violations as a
"pretext" to stop someone they suspect of other crimes. Withrow said
the only way to prove racial profiling is by looking at large numbers
of traffic stops to see if "patterns and practices" of selective
enforcement exist. Otherwise, it's difficult to tell whether police are
stopping motorists for legitimate reasons or merely based on race or
ethnicity.

Withrow agreed that the arrest records alone are inconclusive. But
he found it troubling that they show that Latinos were arrested more
frequently than non-Latinos even when the patrols took place in mostly
White areas such as Fountain Hills.

"That tells me that that is who is being targeted," Withrow said.

A popular anti-immigrant tactic in Arizona is to try to ban day laborers from public places.  Though it's not how I would choose to sell my labor, many people choose to advertise and sell their labor from street corners and in public spaces.  And many of these folks, contrary to common perceptions, are legal residents of this country.

Here is a bit of good news:

A federal judge on Monday issued a temporary order blocking the town
of Cave Creek from enforcing a law aimed at stopping day laborers from
gathering on streets to look for work.

In her ruling, U.S. District Judge Roslyn Silver found that the
ordinance is an unconstitutional restriction of free speech, and that
the possibility of irreparable harm exists.

"Plaintiffs, as day laborers, face not only the loss of First
Amendment freedoms, but also the loss of employment opportunities
necessary to support themselves and their families," Silver wrote in
the ruling.

From the Arizona Republic:

Three day laborers filed a lawsuit Tuesday that seeks to overturn a
suburb's law prohibiting people standing on public streets from
soliciting employment from occupants of cars.

The federal lawsuit alleges Cave Creek's law passed is unconstitutional
because it restricts the free speech rights of people trying to find
work as day laborers.

"Cave Creek does not have the right to pick and choose who has free
speech rights," said Monica Ramirez, an attorney for the American Civil
Liberties Union, one of the group's representing the day laborers. "The
town cannot bar people from peaceably standing in public areas and
expressing their availability to work."

The stated reason for the law is this, but don't believe it:

Mayor Vincent Francia said the law was a response to concerns raised by
residents over traffic being impeded by people congregating on street
corners.

If you followed the genesis of this law, it has less than zero to do with traffic.  It was crafted as a way to prevent people of Mexican birth, with or without the proper papers from the US government, from seeking work in Cave Creek.  Which explains why sheriff Joe Arpaio is so eager to help enforce the law, and why, by some statistical fluke, everyone arrested under the law seems to be of Mexican Latin descent  (the three laborers filing the suit are Mexican and Guatemalan and are in this country legally).

I am happy to see this suit get filed under whatever auspices that it can, and have in the past supported using the first amendment to protect free commerce.  Further, I am thrilled to see the ACLU, given its Stalinist origins, for once actively support the right to publicly advertise and conduct commerce.  However, it is sad to me that Thomas Jefferson and company did not think it necesary to enshrine the right to free commerce as an protected right up there with speech and association.

One might argue that the enumerated power concept and the 9th amendment should be protection enough, but obviously Jefferson did not think so or he would not have pushed for the Bill of Rights.   And saying the following may just prove that I am not a Constitutional expert, but it strikes me that another problem with the original Constitution that probably wasn't fixable at the time was the fact that the Bill of Rights did not originally restrain the states, only the Federal government.  Only with the beat-down of states rights concepts in the Civil War and the passage and later interpretation of the 14th amendment did the Supreme Court begin to apply the Bill of Rights to states and municipalities as well.  It is good that they have done so, but these protections enforced on states only tend to be the enumerated protections of the Bill of Rights.  In fact, in this context, the 9th is meaningless because it reserves unenumerated powers to the people or the states, so it contributes nothing to reigning in municipalities, only the Feds. 

All that being said, it should would have been nice to have three extra words such as "or conduct commerce" inserted after assembly:

Congress shall make no law respecting an establishment of
religion, or prohibiting the free exercise thereof; or abridging the
freedom of speech, or of the press; or the right of the people
peaceably to assemble [or conduct commerce], and to petition the Government for a redress of
grievances.