Timothy N. Baldwin, JD.
June 20, 2015
Some Republicans are starting to get the importance of individual liberty and are implementing these principles into law. There are two issues that demonstrate this trend: 1) eliminating warrantless spying on Americans (under the Patriot Act) and 2) removing the State from the business of issuing marriage licenses.
Since the Patriot Act, the federal government has been spying on Americans without warrant in violation of the Fourth Amendment. But recent efforts by Republicans are putting a stop to that, with Sen. Rand Paul leading the charge. The following is an article I wrote on the subject, which was published in the Flathead Beacon weekly opinion column, “Two For Thoughts”:
The Patriot Act is sun-setting soon. The decision of whether to extend, amend or eliminate it is dividing Republican hopefuls for president.
Not surprisingly, Rand Paul wants to cut a key component: government spying on Americans. McConnell wants the spying continued. Siding with McConnell are Rubio and Graham. Cruz holds a middle position between Paul and McConnell. Jon Tester expressed approval of Paul’s privacy concerns. Surprisingly, the Republican-controlled House voted to end the bulk collection of phone data but allowed surveillance on an individual basis through court approval—a much more reasonable approach.
Individual privacy is an essential pillar of liberty. As the Montana Supreme Court repeatedly confirms, the Montana Constitution protects privacy more than the US Constitution. Montanans, thus, should pay close attention. Sadly, some people miss this and opine, “if you don’t have anything to hide, government intrusion shouldn’t matter to you.”
Security is important, and government has a role to play. But security comes as much, if not more, from a responsible and free people, not government intrusion. Giving up essential liberties for speculative or remote security is foolish and destroys our constitution’s foundation.
Lately, Republicans seem to understand this better, thanks to the influence of politicians like Ron and Rand Paul and overwhelming public opinion. Hopefully, this positive trend will continue into the 2016 presidential term and beyond.
That a large percentage of Republicans in the House desire to reign in the unconstitutional provisions of the Patriot Act shows a major shift in political thinking—one that went from an aggressive “war against terror” to a more balanced and constitutional approach to protect individual privacy.
Regarding the issue of gay marriage, I have written (here and here) about how, in my opinion, the Equal Protection clause in the Fourteenth Amendment prohibits States from denying marriage licenses to homosexuals. In response to what appears to be an inevitable ruling from the United States Supreme Court that the Fourteenth Amendment (under the strict scrutiny standard of review) prohibits States from discriminating against homosexuals in issuing marriage licenses, some States are taking action to remove the State’s role in issuing marriage licenses altogether. This way, there would be no “forcing” the people in the States to violate their religious conscience.
One recent example of this happened in Alabama, as reported by the Tenth Amendment Center. The thrust of this article asserts a “nullification” argument, but what Alabama did is not nullification because the federal court decisions on the issue remain in full force. Were Alabama to keep its current licensing laws, the United States Supreme Court’s ruling would have a binding effect on the interpretation of Fourteenth Amendment. Rather than nullify a federal court order, Senate Bill 377 removes the State from the marriage license enterprise altogether.
Under SB 377, the federal court rulings regarding gay marriage using the Fourteenth Amendment would be inapplicable and irrelevant because where there is no State action, there is no Equal Protection application to force the States to issue marriage licenses to homosexuals. SB 377 makes marriage and recognizes it is a purely private contractual matter. The laws that would apply to marriage contracts are simply those concerning contracts. The effect is less government and more individual liberty.
Individual privacy and choice: there are likely no greater issues in society that affect our liberty more. For a long time, Republicans have had no problem regulating our private lives. While many Republicans tout themselves as being advocates of limited government, the truth is, many of them prefer government intrusion more than any other political party or philosophy. The difference is simply a matter of where government should control.
Government is a necessary evil, yes. Widely-accepted political theories and human experience show that government is necessary to maintain peace and order. For this reason, most of us are willing to pay taxes and support government systems. At the same time, we should recognize the areas of our lives that should be left to the individual. There are rational ways of making this determination.
Generally speaking, issues that are substantively or purely individual in nature should remain with the individual. Using the history of common law as our guide, the rule is this: where people do not intrude the rights of others, they should be left to make their own decision. Issues that are substantively or purely public may rationally be regulated by government. That is, where peace can be maintained without government intrusion, government should leave those decisions to individuals. These general principles derive from the understanding and experience that a free people prefer living in liberty.
There should not be a presumption of government interference. There should be a presumption of individual liberty. A sound maxim would require: as the extent of the government regulation increases, so does the burden of proof on those who advocate the regulation. The United States Constitution gives this burden-approach credence.
For example, Art. I, Sec. 9 states, "the Privilege of the Writ of Habeas Corpus shall not be suspended, unless when in Cases of Rebellion or Invasion the public Safety may require it." Clearly, rebellion or invasion meets the heavy burden of proof necessary to expand government power, but the Constitution presumes that government's limitation in this regard is the norm. This method of invoking government power also implies that once the problem for which the law was executed is resolved, that government power should refrain and the individual liberty that was limited during that time should return.
Add to that, the sliding scale approach is the same approach our laws impose in the judicial process. In a civil case, the plaintiff’s burden of proof is either “preponderance of the evidence” or “clear and convincing”. But in a criminal case where a conviction results in the loss of liberty or life, the prosecutor’s burden of proof is the highest in the land--beyond a reasonable doubt. If politicians approached politics this way and people understood these burdens and presumptions, the result would be less government intrusion, more efficient government, more individual liberty and more trust in government.
For many of us, that Republicans are getting this issue correct is encouraging. This means, however, that liberty advocates must push harder for liberty while the political trend is going in the right direction.
� 2015 Timothy N. Baldwin, JD - All Rights Reserved.
Timothy Baldwin, born in 1979, is an attorney licensed to practice law in Montana (and formerly Florida) and handles a variety of cases, including constitutional, criminal, and civil. Baldwin graduated from the University of West Florida in 2001 with a Bachelor of Arts (BA) degree in English and Political Science. In 2004, Baldwin graduated from Cumberland School of Law at Samford University in Birmingham, AL with a Juris Doctorate (JD) degree. From there, Baldwin became an Assistant State Attorney in Florida. For 2 1/2 years, Baldwin prosecuted criminal actions and tried nearly 60 jury trials. In 2006, Baldwin started his private law practice and has maintained it since.
Baldwin is a published author, public speaker and student of political philosophy. Baldwin is the author of Freedom For A Change, Romans 13-The True Meaning of Submission, and To Keep or Not To Keep: Why Christians Should Not Give Up Their Guns–all of which are available for purchase through libertydefenseleague.com. Baldwin has also authored hundreds of political articles relative to liberty in the United States of America. Baldwin has been the guest of scores of radio shows and public events and continues to exposit principles which the people in America will need to determine its direction for the future.
Web site: libertydefenseleague.com