Give Me Liberty or Give Me Death!

It looks like the incumbents are doing a fantastic job of torpedoing America's confidence in the federal government. From CNN:

A majority of Americans think the federal government poses a threat to rights of Americans, according to a new national poll.

Fifty-six percent of people questioned in a CNN/Opinion Research Corporation survey released Friday say they think the federal government's become so large and powerful that it poses an immediate threat to the rights and freedoms of ordinary citizens. Forty-four percent of those polled disagree.

Of course, there is a bit of partisanship in these number:

The survey indicates a partisan divide on the question: only 37 percent of Democrats, 63 percent of Independents and nearly 7 in 10 Republicans say the federal government poses a threat to the rights of Americans.

Regardless of your political affiliation, however, one feeling is constant throughout the political spectrum:

. . . Americans overwhelmingly think that the U.S. government is broken . . .

Americans tend to get into a revolutionary spirit when they believe their liberty is under siege. Does this mean a drastic shakeup of the federal government is on the horizon? A power shift back to the states? Only time will tell, but times of crisis tend to yield the greatest changes in our system of government.

FOLLOW-UP: Rasmussen Reports polling data shows that only 21 percent of voters believe the federal government enjoys the consent of the governed.

Predicting the Future: Is it a Proper Role for the Supreme Court?

Adam Liptak wrote a fascinating article in today's New York Times regarding the habit of Supreme Court Justices to predict the future based on the resolution of the cases the Court adjudges. Principally, Liptak opines that "The Supreme Court’s main strength lies in adjudicating disputes based on things that have already happened. It is less good at predicting the future." Indeed, prescient--and in many cases, dire--predictions can often be found scattered about important dissents. Liptak illustrates this phenomenon:

When the court first ruled in June that prosecutors may not submit reports from such labs without accompanying testimony, the four dissenting justices warned that the decision would impose a “crushing burden” on prosecutors. Several of them repeated that point Monday.

“I don’t know except anecdotally,” Justice Stephen G. Breyer said, “but Massachusetts seems to be having huge problems.” That depends on whom you talk to. The chief trial counsel of the district attorney’s office in Boston, which handles about half of the state’s drug cases, told a symposium at the New England School of Law in November that “the sky is not falling.”

“Despite the dire predictions,” the prosecutor, Patrick M. Haggan, said, “defendants have not walked free. In the vast majority of cases where we have been required to produce the analyst’s live testimony, we’ve had that analyst there.”

These predictions are often more than mere rhetorical jabs waged by a disgruntled dissenter; they are sometimes found in majority opinions. As Liptak notes:

Poor predictions are not confined to dissents. Writing for eight justices in Clinton v. Jones, the 1997 decision allowing a sexual harassment case against President Bill Clinton to move forward, Justice John Paul Stevens confidently asserted that “it appears to us highly unlikely to occupy any substantial amount” of Mr. Clinton’s time. The aftermath of the decision dominated much of Mr. Clinton’s second term.

Given this, one wonders why the Justices even bother--particularly given the justiciability concerns such predictions evoke (to the extent the predictions relate to future legal issues that are not before the Court).

Nearly Half of America Pays No Federal Income Tax (TTT)

Yes, it is true. According to CNN, 47% of Americans will pay no federal income tax this year. Perhaps even more shocking is that:

Nearly 22% of those making between $50,000 and $75,000 end up with no federal income tax liability or negative liability as do 9% of households with incomes between $75,000 and $100,000.

Can a country running a $1.6 trillion deficit really allow so many of its citizens to escape the burden of taxation? Should all citizens be required to remit a portion of their earnings to the treasury as the cost of their citizenship, even if only a token amount?

Whatever your feelings, expect to see that 47% number to drop considerably in the very near future.

Pay As You Drive Auto Insurance: Be Afraid, Be Very Afraid

Please welcome the latest invasion of our privacy. It’s called Pay As You Drive (PAYD) auto insurance. The concept is a simple one: a customer’s premium is tailored to his/her driving habits. This includes the number of miles driven, and also often includes the style (i.e. speed and acceleration) and time of driving. Many insurance carriers allow their customers to voluntarily select a PAYD plan. For example, Progressive offers the “My Rate” Program, and the company’s website boasts that “[i]f you’re a safe and/or occasional driver, you could pay less for auto insurance- a lot less!” In return for the discounted auto insurance, however, customers sacrifice their privacy. GPS tracking devices are installed to register customers’ driving habits. Is a better rate on auto insurance really worth sacrificing the constitutionally protected right to privacy?

Although programs like Progressive’s “My Rate” are cause for concern (especially in this harsh economic climate where we’re all trying to save a buck), proposed legislation in California downright scares me. The proposal allows an insurer to offer self-reported estimated mileage plans (“EM”) and/or actual-mileage driven plans (“AMD”). An insurer may exclusively offer AMD plans, and, may, in turn, mandate the installation of GPS tracking devices. Insurance companies understandably wish to attain the most information possible so as to accurately measure a policyholder's risk. But, with increased technology, the question becomes how much is too much? We don’t want insurance companies knowing every detail of our personal life, no matter how helpful it may be for calculating risk.

There are not any direct constitutional issues, as the constitution obviously does not limit private companies and individuals. However, with PAYD, insurers will have access to information such as speed and style of driving (and maybe even location, although supposedly the location of the vehicle will be left out of the data collected), and it is hard to imagine that the government wouldn’t try to get its hands on such information. For example, if the government is prosecuting an individual for vehicular manslaughter, it would likely seek to subpoena the information collected by PAYD insurers--information that would be more readily available than it would generally be.

There are, to be sure, benefits that come along with PAYD auto insurance. At least theoretically, those with PAYD policies will curtail the amount they drive, and, thus, reduce carbon dioxide emissions. However, if the insurance market becomes dominated by AMD plans, our privacy will be seriously jeopardized. Do the potentially lower insurance rates and environmental benefits justify an infringement on our constitutional right to privacy?

No Cameras, Please

Apparently there are more interesting things going on at the Supreme Court besides the magic of dishwashing machines.  The Wall Street Journal reports that, upon appearing before a House Appropriations subcommittee on Thursday, "Supreme Court justices Clarence Thomas and Stephen Breyer said that [the] justices remain undecided on whether to allow television broadcasts of court proceedings, despite debate over the issue."

According to Justice Thomas, the justices have "discussed it and discussed it and discussed it," but have failed to reach consensus. Justice Breyer voiced concerns with broadcasting oral arguments because doing so "could detract from people's understanding of the court's functioning [as oral arguments constitute roughly only 2% of any given case]."

But, some members of Congress feel differently:

Rep. John Culberson, R-Texas, a member of the panel, told the justices he favored adding television coverage of the court, pointing to broadcasts of the U.S. House and Senate. "It's a very simple matter to broadcast live on the Internet," Culberson said. "There's no logical distinction between the audience in the room and the audience in the country out there."

Hopefully we'll get an answer someday.

The Government Should Avoid Practicing Unprotected Witnessing...

Today's FAD is based upon an ongoing trial visited by Yours Truly earlier today.

For those keeping track at home, U.S. Atty Patrick Fitzgerald (who is like a modern day Wyatt Earp) and his office recently concluded the Family Secrets case resulting in the destruction of one of Chicago's Mafia Families (called The Outfit). Well, during the prosecution of that case, it was learned that an officer in the Witness Protection Program was feeding the Mob information about a former mobster-turned cooperating informant. Fitzgerald's office is now prosecuting the Marshal who acted as the alleged leak. Suffice to say, this case is a really big deal. I'll keep you posted as to the end result.