GAZETTE COLUMN: 4TH OF JULY - INDEPENDENCE BORN OF UNITY by John P. Flannery

Flag waving (photo – J. Flannery)

We declared our independence of a foreign nation and succeeded because we were united.

But not as a confederation, as a re-constituted United States lest our revolution in 1776 be quickly overrun by foreign nation states taking advantage of a government lacking the resolve to resist foreign intervention and to provide for its citizens' general welfare.  Thus, we wrote a Constitution in 1787 that enumerated powers we thought a central government needed to execute on our behalf.

We fought a civil war among ourselves between factions favoring union under that constitution and nullifiers who wanted to go it on their own as separated states.  We haven't stopped having that fight.

This past week the United States Supreme Court decided that Congress has the power to insure that it's citizens have health care.  Virginia's Governor resents the federal government telling any State what to do, preferring instead that some of our friends and neighbors go without medical treatment and even die.

We didn't fight to form an independent nation to fail each other.

We didn't fight and kill each other in a civil war to reaffirm the character of our nation, as united, so that we could reverse field, and argue anew that the states should decide independently, separate from each other, what is best for the nation, thus dividing and weakening the nation once more, ironically advocated this go-round by the political party that originally fought and argued for union during our civil war.

We insist we are an "exceptional" nation but for most of my life, we have failed to take care of many of our sick and dying if they couldn't afford care.  We have been "exceptional" in that other nations have long provided for the health of their citizens while we have not.  We have Medicare if you are over 65.  We have health care for Veterans.  Same for our elected officials.  This health care program, the Affordable Care Act, was long overdue and the proof of this is how it has already given hope to young adults and saved lives and has such great potential to save many other lives including a parent, sibling or child you may know and love.

Chief Justice John Roberts has been roundly criticized by the state nullifiers for upholding the affordable care act's insistence that there be no freeloaders who get health care without participating or paying a penalty if they opt out.  But what Justice Roberts really did was say that Congress had the power under the constitution to make that call.

The Chief Justice affirmed the rule of law over whatever personal political bias some may have ascribed to him because of his nomination by a conservative Republican President.  The Chief Justice also restored some lost dignity to a Supreme Court seen as political in a past presidential campaign when it decided the election of our chief executive by a court decision and, in a separate decision, when the Supreme Court unleashed wealthy "fat cat" contributors to buy elections.

When upholding the Affordable Care Act, the Chief Justice did seek to limit congressional authority when invoking the commerce power.  Other Justices disagreed.  This judicial approach hearkens back to Chief Justice John Marshall in Marbury v. Madison where restraint in one decision strengthened the Court's hand ever afterwards.  It has empowered the Court to say what law is constitutional or not, a power you won't find stated anywhere in the Constitution, that a co-equal branch, the Supreme Court, has the last word on whether Congress wrote a law that was constitutional or not and why.

Justice Roberts may have sought to limit the power of Congress when it invokes the commerce clause in the future.  Judicial economy would have suggested he need only say why the Affordable Care Act was constitutional.  But it is refreshing to have a national dialogue about something that really matters for a change - the health of the nation and how our government may make a difference for the better.

Our nation has been hard pressed in recent years to show the advances in policy and practice that we insist are so peculiarly American, reflecting our independence in favor of freedom.

This Health Care Act and the judicial dialogue that sustained it advanced our nation's  promise to give hope by what we have accomplished, and hope that, if we remain united, resist the impulse to divide and separate, we can achieve so much as a nation in the name of our independence in favor of the freedom and well being of our own people and as a standard for how other nations treat their own.

GAZETTE COLUMN: THE SUPREME COURT SAYS NO TO BIG BROTHER by John P. Flannery

            When I was a law student in 1972, a bunch of us wrote and solicited articles that we published about the horrors of the government invading our individual right to be let alone; it was all about government surveillance and the right of privacy.

            The best part was a meeting with Senator Sam Ervin from North Carolina who agreed to write an article for our publication, the Columbia Human Rights Law Review; this was before the nation knew Senator Ervin as the Chair of the Senate Watergate hearings. 

The Senator was concerned in 1972 about the “insatiable curiosity of the government to know everything about those it governs.”  He said, “Some agencies take the attitude that the information belongs to them and the last person who should see it is the individual whom it is about.”  At the time, “Army agents were sent throughout the country to keep surveillance over the way the civilian population expressed their sentiments about government policies.” 

Our article on remote camera systems for surveillance of public streets seems quaint when you consider “modern” technology.  Thanks to Justice Department funding, Mt. Vernon had installed in 1971 low light TV cameras from Sylvania that could rotate 355 degrees in a horizontal plane and 120 degrees in a vertical plane; they could read a license plate or see a face ½ mile away, and could take photographs even through store or apartment windows.

George Orwell’s dystopian Novel, 1984, included telescreens by the ruling party of Oceania, monitored by the thought police, to watch its subjects, supposedly so they could stop any chance of secret conspiracies against the government.

If we fast forward to the present, we have the biggest, “baddest” computing power in the world, as well as the Internet with its digital back alleys, GPS satellites, thermography, electronic bugs, and all manner of possibly intrusive devices that may infringe upon our privacy.  In order to bank, phone, and transact business online, we surrender private information for good reason that can be used for wrong and unconsented purposes.  Private Telecomm carriers reportedly are cooperating with the government to collect and analyze data about all of us.

There is encouraging news, however, that the supreme law of the land still favors our individual privacy.  Last week, the Supreme Court curbed the government’s excessive reliance on GPS surveillance techniques – and made some significant observations about hi-tech devices that threaten to hi-jack our privacy.

In the case that was decided, the government placed a tracking device on Antoine Jones’ Jeep Grand Cherokee for four weeks without a valid warrant.  The government knew within 50-100 feet where Jones was 24/7 and generated 2,000 pages of personal data about his personal activities.

Justice Scalia, writing for the Court, said the Fourth Amendment guaranteed each individual the right “to be secure” in his person, house, paper and “effects” and a “vehicle” was an “effect” that was impermissibly searched by this GPS monitoring technique.

Justice Sotomayor said that we are not only protected against trespass of our “effects” but also violations of our “reasonable expectation of privacy.”  She charged that this e-surveillance “chills associational and expressive freedoms” and is “susceptible to abuse” and “inimical to democratic society.” 

Sotomayor expressed the concern that we are going to have to re-visit how we handle abuses of the information that we disclose to third parties for one purpose that is abused for different purposes and that includes the phone numbers we dial, the text messages we send, the urls we visit, the e-mails we write and receive, and the online purchases of books, groceries and medications. 

Justice Alito joined the chorus of concern with a somewhat different analysis but focused as well on how “closed-circuit television video monitoring is becoming ubiquitous” on toll roads and elsewhere.

While this decision is a hopeful sign that we may still have some right of privacy, we are going to have to be vigilant.

By the way, does anyone know what those cameras at the traffic stop in Leesburg on East Market Street are capturing – they appear to be on 24/7?