Last week the Illinois Senate soundly defeated a proposal to ban trans fats in foods.  The bill failed by a vote of 40-13, due in part to the hard work of the doughnut caucus.

Senator Mike Jacobs lamented the loss of his old trans fat filled Oreos, which taste better than Nabisco’s, current, ostensibly more healthy version.

Not lost amid all the funny remarks was the main point- Americans should be free to choose what they want to eat.  Jacobs didn’t want Illinois to become a “nanny state.”

It seems a little late for that argument. With Americans already being told by their government what they can and cannot smoke, drink, drive, snort, wear, teach, say, watch, grow, and buy, what difference can a little trans fat ban really make?

In fact, New York City banned trans fats back in 2006.  The bantransfats.com advocacy web site has been so overwhelmed with new information that the owners have stopped updating the site.

There are those (a phrase I have borrowed from our president) who are calling for a new constitutional amendment stating that “the Right of the People to ingest shall not be infringed.”

Good luck with that one.

Our hundred mile wide borders are a constitution free zone. At least according to the ACLU. I recently re-read their 2008  Fact Sheet on what it describes as the U.S. “Constitution Free Zone.”

The United States government defines our border as  “within 100 air miles from any external boundary of the United States or any shorter distance..”  according to this statute, which was amended to include this distance after the 9/11 terror attacks. The purpose of the statute was to ensure the security of United States borders. However, the government has been expanding its searches to include U.S. citizens not seeking to cross the border with the blessings of the Supreme Court.  In 1975, The U.S. Supreme Court held that Border Patrol agents at checkpoints have legal authority that agents do not have when patrolling areas away from the border. Border Patrol agents may stop a vehicle at fixed checkpoints for brief questioning of its occupants even if there is no reason to believe that the particular vehicle contains illegal aliens.  The Court relaxed (revoked?) the Fourth Amendment when dealing with these fixed checkpoints.

While it is unclear how much these checkpoints are succeeding in protecting our borders, they sure have been resulting in some large pot seizures from U.S. citizens, who may have mistakenly believed they were protected by the U.S. Constitution. Granted, some searches and seizures are more invasive than others, but each U.S. citizen should have a reasonable expectation of privacy.

Some citizens have decided not to meekly accept what they perceive as a violation of their constitutional rights.  I thoroughly enjoyed the following video. Clear some time in your schedule, though, since it goes on for a while.

States throughout the nation are beginning to challenge TSA pat down searches in the wake of some controversial incidents. The Texas legislature has proposed legislation that would ban Transportation Security Administration agents from performing searches on certain parts of a person’s body. The bill, known as the Anti-Groping Bill, has already passed the Texas house, and is awaiting State Senate approval.

HB1937 makes it a crime to “purposefully, knowingly or recklessly touch a person’s anus, sexual organ and breasts, even through clothing.”

The Texas State House seems to be reacting to recent highly publicized accounts of TSA searches.

Here’s a video of a six-year-old girl being searched:

Here’s Former Miss USA Susie Castillo’s video describing her feelings about TSA agents touching her genitalia during a pat-down:

http://www.youtube.com/watch?v=LmADZpqhKhQ

So far, eight other States have proposed similar legislation.

The Transportation Security Administration is taking the position that any attempt by individual States to control TSA security procedures would be an unconstitutional violation of The Supremacy Clause . Read the TSA’s take on this issue here.

The TSA Web Site contains a page called Civil Rights For Travelers. In it, the TSA claims that it is “committed to making each traveler’s screening experience as pleasant and smooth as possible. We are also committed to treating each traveler with dignity and respect throughout the screening process.”

Citizens who believe they have had their rights violated by a TSA employee may file a complaint in the manner set forth on the site.

Meanwhile, my admittedly informal survey of the blogosphere seems to indicate that there’s not a lot of support for the TSA argument.  Read this post from Lonestar Watchdog. It won’t be hard to guess where TSA Tyranny comes down on this issue,

Texas Legislature: Anti-groping bill would limit airport pat downs – El Paso Times.

The Supreme Court has eroded a citizen’s right to privacy in his or her own home with its decision in Kentucky v. King. The court ruled that police who smell marijuana at your door may kick your door down if they think you might be destroying those drugs. And by the way, no, they don’t need a warrant, as long as they knock first.

Justice Ginsburg was the lone dissenter. She wrote in her opinion that “The court today arms the police with a way routinely to dishonor the Fourth Amendment’s warrant requirement in drug cases…  In lieu of presenting their evidence to a neutral magistrate, police officers may now knock, listen, then break the door down, nevermind that they had ample time to obtain a warrant.”

Justice Alito wrote the majority opinion. He used the notion of “exigent circumstances” to validate the actions of the police in this case. As Justice Ginsburg points out, “circumstances qualify as “exigent” when there is an imminent risk of death or serious injury, or danger that evidence will be immediately destroyed, or that a suspect will escape.” (Brigham City v. Stuart )

The lower court had ruled that the police could not create the exigent circumstances themselves, by banging on the door and announcing themselves. Justice Alito disagreed, holding that Mr. King could have simply told the police that they could not come in. I don’t know what planet Justice Alito is from if he really believes Mr. King had that option. Are we to assume the police would have said “oh, O.K., I guess we can’t come in” and left Mr. King alone?

Justice Ginsburg concurred with the lower court that the police could not themselves create the exigent circumstances that justified the warrantless entry. She wrote that our homes are “our most private space.”

If that’s still true, we’re all in trouble.

Is there a first amendment right to engage in sexting with your friends?  For purposes of this post, sexting is defined as “the act of sending sexually explicit messages or photographs, primarily between mobile phones.”

There is no issue about the legality of sexting between consenting adults. Bret Favre may be embarrassed, but he is not being prosecuted. There are limits on what and how you may text, however.  The U.S. Supreme Court has ruled that an employer can limit an employee’s right to “sext” on a business phone. The employee had claimed such prohibition was a privacy violation.

There is no issue regarding an adult sending lewd or sexually suggestive images of an underage child over the internet. That act can be prosecuted as child pornography if the images are deemed to be pornographic.

The real constitutional questions arise when underage kids are caught sexting photographs of themselves. Last year, New York City public schools announced that sexting was prohibited, with punishments as severe as a ninety day suspension. The New York chapter of the American Civil Liberties Union spoke out on behalf of the students. The ACLU objection centered around the vague definition of sexting, and also objected to the prohibition extending to students engaging in sexting off school grounds and at home.

According to the Parental Control Apps web site, 22% of teenage girls and 18% of teenage boys engage in sexting. Child pornography prosecutions have been brought in various jurisdictions. The New York Times covered a Washington case where a fourteen year old girl took a nude photo of herself and sent it to her boyfriend. He then forwarded it to another student, who forwarded it to her friends, asking them to forward it to their friends. The friends were arrested, but the girl who took the photo of herself was not.

Thegrio.com had a recent post on this topic. There is a quote from New York State Senator Eric Adams that sums up the problem faced by schools and the court system:

“Child pornography laws were not designed to arrest kids for sending and receiving nude pictures of their boyfriend or girlfriend,” said Adams. It’s definitely a complicated scenario where normal juvenile mischief collides with the internet and modern technology and turns into a major problem.”

Perhaps the Supreme Court will address how constitutional free speech and privacy rights apply to underage kids choosing to engage in this activity.

Barack Obama’s decision to kill Osama Bin Laden was constitutional. There is no doubt about it.  As Attorney General Jeffrey Holder stated on Wednesday,  Bin Laden “was the head of al Qaeda, an organization that had conducted the attacks of September the 11th,” Holder said. “It’s lawful to target an enemy commander in the field.”

Viewing terrorists as enemy combatants, as opposed to criminals, represents a change for this administration. Perhaps it has learned from experience.

The Fox News Channel’s Shep Smith and Andrew Napolitano have both called the operation “illegal.” Napolitano even called the operation unconstitutional. His argument, if I understand it correctly, is that the president cannot order that an enemy combatant be killed except on a battlefield.  Anyone who reads this blog knows I don’t always agree with Barack Obama or his administration, but this attack was nakedly partisan and kind of dumb.  His diatribe is fascinating to watch, so I’ve included a video clip here:

Osama Bin Laden himself proclaimed that he was at war with the United States. See this link for the full text of his 1996 Fatwa. President Obama, as U.S. Commander-in-Chief, has the power to direct and wage war.

The United Nations High Commissioner for Human Rights, Navi Pillay, is calling for a “full disclosure of the accurate facts.” She claims that counter-terrorism has to be carried out “in compliance with international law.”

Theconstitutional.org has a good post about the international law aspects of the Bin Laden killing.  There are many in the international community who believe that Bin Laden should have been given the opportunity to surrender before he was killed. Former Nuremberg prosecutor Benjamin Ferencz said he “understood the temptation of instant justice,” but it was wrong. “Killing a captive who poses no immediate threat is a crime under military law as well as all other law.”

It remains unclear whether he tried to surrender, but the question that needs to be answered is whether Bin Laden is viewed as a criminal or as an enemy combatant. As the post points out:

“[Bin Laden] was an active soldier in the war that he himself declared against the United States.  In war one does not have to give enemy soldiers the opportunity to surrender.  For example, bin Laden did not give the occupants of the World Trade Center that opportunity (in contravention to the law of war bin Laden drew no distinction between military and civilian targets).  Under the law of war enemy soldiers may surrender if they choose.  But they had better be quick, clear, and explicit that they are surrendering.  Bin Laden could have surrendered to us at any time over the past decade, but he chose not to.  When he heard the U.S. helicopters overhead he could have rushed out of the compound with his hands in the air and thereby protected his wife and children, but he chose not to.  Nor did he raise his hands when our soldiers encountered him.  It was his choice, and there is no doubt that it was lawful for us to kill him.”

It looks like we’re in for a few weeks of arguing about whether Bin Laden reached for a gun before he was shot or whether he tried to surrender. With all due respect to Commissioner Pillay, I don’t care.

The Al Falah Center has filed a lawsuit in Federal District court accusing Bridgewater Township, New Jersey of denying its constitutionally guaranteed rights to religious freedom.

According to a press release issued by the Asian American Legal Defense and Education Fund(AALDEF), the Al Falah Center is alleging that the Township Zoning Board suddenly altered its zoning laws to prevent construction of the mosque.

This case is by no means unique. Similar lawsuits have been brought throughout the country in recent years. The First Amendment Center has an informative post on the current state of the law regarding religious freedom entitled “Religious Buildings and Zoning.” Author John Ferguson discusses the Religious Land Use and Institutionalized Persons Act of 2000 (RLUIPA) and its application to cases such as this one. Although by its name it might seem that this federal statute only applied to the religious freedoms of prisoners, there is in fact a land use portion of the act. The relevant language states as follows:

“No government shall impose or implement a land use regulation in a manner that imposes a substantial burden on the religious exercise of a person, including a religious assembly or institution,” unless the government can demonstrate that it has a “compelling governmental interest” in the regulation and there is no less-burdensome method of meeting that interest.”

Municipal governments have challenged the constitutionality of RLUIPA based upon establishment clause arguments. The Supreme Court upheld portions of the statute in Cutter v. Wilkinson involving prisoner’s rights. Land use issues were not involved, but, as Mr. Ferguson points out, the prisoner and land use portions of the statute share much the same language.

To explore this topic further, visit this site.

U.S. Probation Officer Mark John Walker has pleaded guilty to violating the constitutional rights of female offenders under his direct supervision by engaging in sexual contact and aggravated sexual abuse. Details of the case were the subject of an FBI press release dated April 28, 2011.

According to the release, Walker admitted to violating the probationer’s rights by “kissing them or touching their breasts, buttocks and inner thighs without their consent and in order to gratify his own sexual desires.”

With one victim, Walker admitted to pulling her pants down and forcing her to have sexual intercourse with him at her home as part of his official duties. During this assault he was wearing his badge and carrying his government-issued firearm. According to the release,  “the victims never reported the violations to authorities because they were afraid that no one would believe them and that Walker, as their probation officer, had the power to have them incarcerated or otherwise punished.”

According to the prosecutor, Walker selected women with mental health issues or a history of sexual abuse.

In addition to the criminal prosecution, at least seven victims have brought a federal civil rights lawsuit against Walker. In one of those cases, it is alleged that Walker demanded a “threesome” with the victim and another woman. He threatened to have her locked up and to have her child taken from her if she complained.

As a result of the plea, Walker is expected to received a sentence of ten years incarceration.

This case is reminiscent of one I posted about last year. That case involved a Long Island jail guard extorting sex from female inmates.

Abraham Lincoln once said:

“Nearly all men can stand adversity, but if you want to test a man’s character, give him power.”

These two men failed that test of character while violating the constitution they swore to protect.

Supreme Court Justice Thomas Johnson was appointed to the Court by George Washington in 1791 to fill the seat left vacant when Justice John Rutledge resigned. He reluctantly accepted this appointment from Washington, who was a close friend and colleague.

Johnson was born on November 4, 1732, in Calvert County, Maryland. Thomas and his brothers and sisters were educated at home. When he became interested in the study of law, he moved to Annapolis, the colonial capital of Maryland, and became employed as a court clerk. At the same time he studied law with Stephen Bordley, a member of a very politically influential family at the time. He was admitted to the Maryland Bar in 1753. He married Ann Jennings, daughter of an Annapolis judge, in 1766. the couple had eight children.

Johnson became a member of the Maryland Colonial Assembly, where he was an outspoken opponent of the Stamp Act. He also served as a member of the Continental Congress, during which time he nominated George Washington as Commander In Chief of the Continental Army.

He later served three terms as first Governor of Maryland, and as Chief Judge of the Maryland General Court.

In 1788 Johnson supported ratification of the U.S. Constitution at the Maryland Constitutional Convention.

When he was appointed to the Supreme Court in 1791, Johnson was 59 years old, and in poor health. Johnson was reluctant to serve because he was not feeling up to the rigors of “riding circuit,” which involved strenuous travel and poor accommodations. Washington wrote to Johnson before the appointment, to determine whether he would accept the appointment. Johnson replied without committing, asking “whether the southern circuit would fall to me; if it would at my time of life and otherwise circumstanced as I am it would be an insurmountable objection.”  Chief Justice John Jay,  assured him that he would do everything possible to relieve the rigors of circuit court duty, but Jay reneged on this promise. Johnson was appointed to the southern circuit, which was particularly large and difficult to cover. Johnson’s ambivalence to serve was the norm for Justices during the early years.

Johnson does have the distinction of having written the Supreme Court’s first written opinion, in Georgia v. Brailsford, in 1792.  He resigned from the Court in January of 1793, when riding circuit became too much for him.

He was in poor health for the rest of his life. He did eulogize his good friend George Washington at a birthday memorial service in 1800.  He died in 1819 at his home in Frederick, Maryland.

How private are our cell phones?

The short answer: not very.

It’s no secret that using wireless devices of any kind, including cell phones, compromises your privacy.  The Enhanced 911 Act was passed way back in 1999.  Hackers, internet marketeers, and the government were looking for ways to get at our personal information long before that, too. Just last week, news broke that Apple has embedded tracking files in its iPhones and iPads.

The Supreme Court of California has held that police may search a suspect’s cell phone without a warrant.  The Ohio Supreme Court has ruled that warrantless cell phone searches violate the Fourth Amendment.

Senator Ron Wyden is now calling for federal legislation to protect U.S. citizens from unconstitutional invasions of privacy. Wyden stated that “I think a lot of people have not really put their arms around the dimensions of this, the fact that everybody’s got a handheld electronic device, a cell phone, a GPS system.”

His proposed law is called  “The Geolocational Privacy and Surveillance Act”, which would restrict authorities from tracking people through cell phones and other technologies without first obtaining a search warrant. Wyden went on to say that “Everybody’s carrying them around everywhere and probably aren’t thinking that much about the fact that someone may be keeping tabs on them.”

This law would go a long way to ensure some fourth amendment protections, but what about all the information besides our location contained in our devices?

Big Brother watchers will get a good scare after they check out the “mobile forensics” products being manufactured by Cellebrite, and marketed to law enforcement agencies. Cellebrite products can extract evidentiary data from cell phones, including deleted and hidden data.

You don’t need to be paranoid to fear the implications of these products. The American Civil Liberties Union is understandably concerned about potential fourth amendment abuses:

“A device that allows immediate, surreptitious intrusion into private data creates enormous risks that troopers will ignore these requirements (for a warrant) to the detriment of the constitutional rights of persons whose cell phones are searched.”