Nothing to Hide: The False Tradeoff between Privacy and Security

The title of this article is also the title of this piece by Daniel J. Solove and is available via SSRN. This lengthy argument highlights the argument I made in this post about the tradeoffs between safety and security. His point seems to mirror my own. Here is the abstract:

“If you’ve got nothing to hide,” many people say, “you shouldn’t worry about government surveillance.” Others argue that we must sacrifice privacy for security. But as Daniel J. Solove argues in this book, these arguments and many others are flawed. They are based on mistaken views about what it means to protect privacy and the costs and benefits of doing so.

In addition to attacking the “Nothing-to Hide Argument,” Solove exposes the fallacies of pro-security arguments that have often been used to justify government surveillance and data mining. These arguments – such as the “Luddite Argument,”the “War-Powers Argument,” the “All-or-Nothing Argument,” the “Suspicionless-Searches Argument,” the “Deference Argument,” and the “Pendulum Argument” – have skewed law and policy to favor security at the expense of privacy.

The debate between privacy and security has been framed incorrectly as a zero-sum game in which we are forced to choose between one value and the other. But protecting privacy isn’t fatal to security measures; it merely involves adequate oversight and regulation.

The primary focus of the book is on common pro-security arguments, but Solove also discusses concrete issues of law and technology, such as the Fourth Amendment Third Party Doctrine, the First Amendment, electronic surveillance statutes, the USA-Patriot Act, the NSA surveillance program, and government data mining.

The argument is often made that any infringement on privacy, when measured against a potential unacceptable security risk, is tolerable for the protection of our society as a whole. Further, those that resist infringement on their privacy must be hiding something and shouldn’t have such privacy anyhow. I reject these arguments and recommend a full read of this paper.

The (over)Power of the Federal Government in America

How America’s Federal Government is Taking Over

“They who can give up essential liberty to obtain a little temporary safety deserve neither liberty nor safety.”
– Benjamin Franklin

Today, the United States government enjoys unprecedented power over its citizens. With each new administration that enters 1600 Pennsylvania Ave., new legislation is passed which encroaches more and more into the freedoms that American citizens once enjoyed.

Let’s face it: the United States of America that most of us perceive it to be only exists in Country-Western music. In this piece, I’ll shed light onto:

  • The Constitution and its amendments that were created to protect our freedoms;
  • The origin and evolution of the federal government as we know it today;
  • Laws and court decisions that affect them;
  • The difference between freedom and security.

Constitutional Protection

The Supremacy Clause

Before the U.S. Constitution was written and ratified, the Articles of Confederation1 was the document by which all other laws were judged against. These articles held a much stronger stance on the idea of individual state sovereignty and a much weaker stance on the role of centralized government in daily life. To resolve the eventual and unavoidable conflict between state and federal laws, the Constitution included the Supremacy Clause2 which reads:

“This Constitution, and the Laws of the United States which shall be made in pursuance thereof; and all treaties made, or which shall be made, under the authority of the United States, shall be the supreme law of the land; and the judges in every state shall be bound thereby, anything in the constitution or laws of any state to the contrary notwithstanding.” (Emphasis added)

In plain English this states that the law of the U.S. government takes precedent over conflicting laws of any state only if the federal government is acting within its constitutionally authorized powers. That is why the phrase “in pursuance thereof” was put into the text of the Supremacy Clause above.

The Tenth Amendment

“The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people.”
— Tenth Amendment to the United States Constitution

Reading this very short amendment to the U.S. Constitution shows that, unless the constitution delegates a power to the centralized federal government, the federal government doesn’t get that power. However, this amendment is missing a word that originally appeared in Article II of the Articles of Confederation, and the omission of this word makes it weak and ambiguous.

That word is: Expressly.

Specifically, the debate at the time the States were considering ratification of the Bill of Rights (including the Tenth Amendment above) involved starting the proposed amendment with “The powers not (expressly) delegated . . .” to the federal government. Doing so would keep the federal government from having what are called Implied Powers3 which can be open to interpretation depending on the mood, whim, or fad of the current era and administration in power.

The original debate4 from August 21st, 1789 is a fascinating view into discussions the Founding Fathers had about, and insight into the thought processes behind drafting the Constitution.

If the Supremacy Clause and Tenth Amendment are put together, it shows that the Supremacy Clause places all federal laws over conflicting state laws, so long as the federal law is made pursuant to the Constitution. However, now that we’ve seen that the powers of the federal government to make laws are not expressly limited, this opens the door for federal law to trump any state law and call it an “Implied Power.”

Necessary and Proper Clause

The last piece of the Constitution which bears mentioning here is the Necessary and Proper Clause (Article I, Section 8, Clause 18)5, which states that

“The Congress shall have Power – To make all Laws which shall be necessary and proper for carrying into Execution the Enumerated Powers6, and all other Powers vested by this Constitution in the Government of the United States, or in any Department or Officer thereof.”

When these three parts of the Constitution are looked at together, a problem can be seen:

  • The Supremacy Clause7 places all constitutional federal laws above State laws which may conflict with them;
    • The Tenth Amendment doesn’t expressly limit federal lawmaking, except to the self-interpretation of Implied Powers;
      • The Necessary and Proper Clause8 gives power to the federal government to make any law which is considered necessary and proper to carry out the powers it can imply for itself.

At the time of ratification, the architects of the Constitution thought it would be superfluous to enumerate explicit powers to the federal government. James Madison felt that without implied powers, the “Constitution descended to recount every minutia,” and did not wish to make the Constitution that long (taken from the 1789 Constitutional debate minutes, above).

Although well-intentioned, Mr. Madison didn’t take into consideration where future Presidents and their administrations would push their implied powers. If a Congress can mandate that a state comply with a national law which violates the Constitution’s provision for a state to manage itself where the federal government is not given power (see The Patient Protection and Affordable Care Act9 and the The Patriot Act10 below, to name just two), then a State would have no power at all to govern itself unless it is at the discretion of the federal government and not the Constitution.

In the Beginning…

Pre-Civil War

Alexander Hamilton, one of the founding fathers, recognized the danger in a centralized government over-stepping its bounds when making laws and addressed the intent of the Supremacy Clause in the Federalist Papers: Federalist No. 3311. The relevant part of that essay is this:

“But it will not follow from this doctrine that acts of the large society which are not pursuant to its constitutional powers, but which are invasions of the residuary authorities of the smaller societies, will become the supreme law of the land. These will be merely acts of usurpation, and will deserve to be treated as such. Hence we perceive that the clause which declares the supremacy of the laws of the Union, like the one we have just before considered, only declares a truth, which flows immediately and necessarily from the institution of a federal government. It will not, I presume, have escaped observation, that it expressly confines this supremacy to laws made pursuant to the Constitution; which I mention merely as an instance of caution in the convention; since that limitation would have been to be understood, though it had not been expressed.” (Emphasis added)

Some states began to recognize the over-stepping of the federal government and would consider a federal law, “Null and void” if it considered a law unconstitutional. This was the reason behind laws passed by some southern states, such as South Carolina’s Nullification Ordinance12 (enacted November 24, 1832), in response to tariffs enacted by a northern-dominated government. (In this case, the tariffs in question were considered beneficial to the industrial North, but were detrimental to the industrially dependent, agricultural South.)

This protest from the South led to the Nullification Crisis13: the first open aggression between the federal and a State governments in American History. In reaction to the Nullification Ordinance, then-President Andrew Jackson sent a small naval fleet down to South Carolina and also threatened to send federal ground troops to enforce the tariffs.

“Jackson authorized this under color of national authority, claiming in his 1832 Proclamation Regarding Nullification that “our social compact in express terms declares, that the laws of the United States, its Constitution, and treaties made under it, are the supreme law of the land; and for greater caution adds, “that the judges in every State shall be bound thereby, anything in the Constitution or laws of any State to the contrary notwithstanding.” Here, Jackson clearly omitted the phrase “which shall be made in pursuance thereof” from the Supremacy Clause, indicating that the Constitution was a document conferring absolute sovereign authority to the federal government — which was starkly in opposition to Jefferson’s assertion in The Kentucky Resolutions of 179814, that “the government created by this compact was not made the exclusive or final judge of the extent of the powers delegated to itself; since that would have made its discretion, and not the Constitution, the measure of its powers; would make the federal government, and not the Constitution, final judge of its own powers.” Hence under Jackson’s view, federal law was final, and states had no choice but to obey it.”15

As can be seen here, President Jackson didn’t bother concerning himself with the constitutionality of the tariffs. His concern was that states fall in line with federal law without challenge.

The Civil War

In grade school we learn that the Civil War was about ending slavery in America. While slavery was one issue, the larger issue at hand concerned a State’s right to enact its own laws regarding issues such as legalized slavery. Since slavery by today’s standards is a very bigoted and all-around-unpopular idea, using the idea of abolishing slavery was an easy way to mask the real reason behind the Civil War: Establishing U.S. governmental supremacy over states, regardless of constitutionality.

Abolishing slavery was a good vehicle to play on the emotions of the masses in order to garner popularity for a conflict that stripped away the rights of States and individuals within those States. The immediate impact, though, was about money.

Some historians argue that the Southern secession and the “War Between the States” was actually much more of a financial fight than a war over slavery. Northern-inspired tariffs benefited Northern interests but were detrimental to Southern interests and were destroying the economy in the South16.

With the defeat of the Confederacy in 1865, the U.S. federal government solidified its presence as the highest law in the land — affirming that any challenges to its authority would be met with military might. The constitutionality requirement of the Supremacy Clause could now be overlooked as Andrew Jackson did, with little or no resistance from individual states.

As you can seen here, in the 89 years after the ratification of the U.S. Constitution, the centralized government moved from:

  • Assuming that the Supremacy Clause was a truism and needed no further clarification of specific powers; to
  • Pushing the applicability of the Supremacy Clause under a broad definition of Implied Powers within the Constitution; to
  • Ignoring State’s rights under the Constitution and asserting supreme, centralized federal rule with military might.

Laws and Jurisprudence

I will not delve into every law that encroaches into a State’s right to govern itself effectively, or every court case decision that legalizes the centralized U.S. government’s attempts to do so. I will, however give a few examples of each of these to illustrate the aforementioned assertions.

Health Care Reform
The most recent, red-button issue that brings to light the national government’s move to expand its powers is The Patient Protection and Affordable Care Act. Some call this new law Obamacare. This law mandates that every American purchase and maintain health insurance, or face fines if found without it.

In a lawsuit17 filed by 26 states jointly, the constitutionality of the new health care reform legislation was called into serious question:

“The Act represents an unprecedented encroachment on the liberty of individuals living in the Plaintiffs’ respective states, by mandating that all citizens and legal residents of the United States have qualifying healthcare coverage or pay a tax. The Constitution nowhere authorizes the United States to mandate, either directly or under threat of penalty, that all citizens and legal residents have qualifying healthcare coverage. By imposing such a mandate, the Act exceeds the powers of the United States under Article I of the Constitution and violates the Tenth Amendment to the Constitution.”18

District and Circuit Courts are split in their decisions regarding these cases (there are more than just the joint case cited above). It is effectively the government-mandating that a citizen of the U.S. purchase a private-sector product. There is a very slippery slope here — one that we shouldn’t be facing given the protections in the Constitution and Tenth Amendment. However, this is what we’re facing and the courts are conflicted.

The Patriot Act
The Patriot Act is a minefield of Constitutionality issues. The passage of the bill came shortly after the terrorist attacks of September 11, 2001, and was a reaction to a national sense that our security was breached. The sense of nationalism in America was so strong at the time that opposition to the bill was considered “Un-American.” (The name itself suggests that proponents are patriots, and detractors must not be!)

Most of the criticisms of this bill, constitutionally speaking, are related to the Fourth Amendment protection against unlawful searches. From National Security Letters19, which allow the FBI to conduct records-searches (telephone records, e-mail, financial) without a warrant, to indefinite detention of illegal immigrants, this knee-jerk bill arguably did more to violate the Constitution and individual civil rights than any other bill in history.

Entire novels have been written about this controversy20, but the main idea of the bill is that it gave agencies like the FBI freedom to search people without a warrant and without informing them of the search. The Fourth Amendment to the U.S. Constitution is short and sweet:

“The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.”

Court decisions of note
The following is a short list of court cases which pertain to this trend of governmental power grabbing.

United States v. Darby21 is an often repeated decision by the U.S. Supreme Court which highlights the problems that exist because the word “expressly” was omitted from the Tenth Amendment. This establishes that the federal government can construe Implied Powers very broadly with little to no recourse by a State government.

Missouri v. Holland22 held that the federal government’s ability to make treaties trumps any State concerns that such treaties might abrogate States’ rights arising under the Tenth Amendment.

Mayfield v. United States23 found that one or more portions of the PATRIOT Act violated the Fourth Amendment protection against illegal searches and seizures.

United States v. Alfonso Lopez Jr.24 was the first Supreme Court case since the New Deal to set limits to Congress’s power under the Commerce Clause of the United States Constitution.

Gonzales v. Raich25 ruled that under the Commerce Clause, Congress may criminalize the production and use of home-grown marijuana even where States approve its use for medicinal purposes.

(Author’s Note: this decision means that even when the act is committed inside a State, and the results of such commerce never leave the State, it can still be a federal crime. Why? Because growing medicinal Marijuana can impact the supply-and-demand chain outside a given State’s borders. Justify it however you want, Supreme Court, but anything grown, used, and/or sold within a single State’s borders cannot constitutionally be criminalized at the federal level.)

Freedom vs. Security – Boiling the Frog

Boiling the Frog

Have you ever learned how to boil a frog? If you drop a frog into a pot of boiling water, it’ll immediately hop out. However, if you place the frog into room temperature water, then slowly boil that water with the frog in it, he’ll gradually boil to death before realizing the need to escape.

It’s an old proverb that is applicable to contemporary Americans. Over the last 180 years, since the time of the Nullification Crisis before the Civil War, the centralized federal government has incrementally exercised more and more power over the States and citizens beneath it that, much of the time, there is no public outcry at all for the loss of rights and freedoms enjoyed before.

Other times the power transfer is much more observable. In the case of the PATRIOT Act, as the United States was grieving deeply over the instantaneous loss of thousands of civilians at the hands of terrorists, we as citizens were willing to tolerate this Act and all the intrusions it meant in order to feel safer and more secure. Initially we were told it was just emergency provisions, as it was set to expire three years later.

Even though it was written with an expiration date, the emergency powers granted by the Act have not gone away. Congress has extended the Act multiple times, as recently as February 8, 2011 by the oversight of President Barack Obama.

Why has there been no public outcry? The short answer is that we’ve been living with infringed civil liberties for enough time that it wasn’t even news. This is our boiling frog.

Freedom vs. Security

A financial author and investment expert named Robert Kiyosaki confronted a simple human emotion and illustrated it with jobs. Freedom is what most Americans claim to cherish to their core. Safety and security are basic human needs and the drive to achieve security is very strong26. However, to Kiyosaki, freedom and security are opposing ideals.

One of the most secure jobs one can think of in America would be government service — more specifically, military service. Once out of basic training, a new member of the military cannot quit. It is a steady paycheck, for the period of enlistment, guaranteed. However, the security of this employment means giving up a number of freedoms (ironically, to protect the freedoms of others). A soldier cannot choose where he or she lives, what job he or she is assigned, when he or she deploys, or how much he or she makes. Security of employment, therefore, comes with a sacrifice of freedoms.

Freedom of employment, namely self-employment, comes with a complete lack of security. Personal income has infinite potential, there are no set work hours, and one has as many vacation days as one wants. However, there are no guarantees in business-ownership. There is no safety net; no security of income.

The desire for freedom directly opposes security. It is much the same for citizens of free and democratic societies. The level of desired security always comes at the price of freedom. The number of freedoms that we, as American citizens, are willing to sacrifice in the name of security is a tough balancing act. However, once a society loses any freedom by relinquishing it to the power of the federal government, that freedom is rarely, if ever, returned.


Some of the most fundamental aspects of American society are based on security, not freedom. The largest expenditures of the U.S. government are defense and Social Security/Welfare/Medicare. The national debt is over $14 Trillion. The daily budget deficit is over $4 Billion every day.

As a society, the U.S. is going broke. It/we are going broke to protect physical security (defense and Medicare/Medicaid), and financial security (Social Security/Welfare). These are safety nets that the People won’t do without. These programs deprive us of our freedoms of income potential (taxes) and civil liberties (the PATRIOT Act, et. al.).

Calling America a “free society” is a complete fallacy and misnomer. Americans have accepted the bending and breaking of our Constitution and the freedoms it provides in the name of security.

  • In the name of equality we abolished slavery and won the Civil War. What we got was a federal government that could rule outside the Constitution for an immediate “greater good” but established a precedent that went far beyond slavery.
  • In the name of financial security, we established Social Security27. What we got was the second largest expenditure in the current U.S. budget and the taxes/debt that go towards maintaining it. Almost half of federal income tax dollars go to Social Security and medical care (Medicare/Medicaid).
  • In the name of safety we allowed the PATRIOT Act. What we got was government and law enforcement that could violate the Fourth Amendment at will, so long as it was construed to protect against terrorism.
  • In the name of protecting our children, America has established and tolerated laws which violate the basic freedoms given by the Constitution on a daily basis28.

Freedom is a warm and fuzzy word that gives pride to Americans. However, how much freedom is there left that we had in 1776? Is it worth it?

Before you answer, take a look at the Traffic Safety Administration. Just voicing one’s opinion negatively toward the TSA, a First Amendment guarantee, can justify being treated as a terrorist29.

My personal answer is no.

A lot of hot air is given to the topic of “Personal Responsibility” that citizens should take upon themselves. This idea of fending for one’s self is the basis of what freedom is. Taking responsibility for income, health, personal safety, and future is what freedom is. Reliance on the government to supply these things for us is, in essence, giving away the freedoms we love.

It cannot be had both ways.

I choose freedom every time. However, the representative government America has will not bend on spending for defense and Social Security lest they be voted out of office. We, as a people, have traded (or tolerated the trade of) freedom for security. It’s hypocritical to expect security while demanding freedom. Until the voting citizens of America demand their freedoms and accept the responsibility their own security, the status-quo will not change.

Freedom and security are trade-offs. It cannot be had both ways.

  1. Text of the Articles of Confederation []
  2. Provision under Article IV, Section 2 of the U.S. Constitution, providing that federal law is superior to and overrides state law when they conflict. Legal Information Institute []
  3. The Necessary and Proper Clause from Article I, Section 8, clause 18 of the U.S. Constitution grants to Congress the power to enact laws to carry out the “enumerated powers” (Clauses 1-17) that are specifically assigned to the federal government. []
  4. House of Representatives, Amendments to the Constitution; 18, 21 Aug. 1789;Annals 1:761, 767–68 []
  5. Implied Powers []
  6. Article I Section 8, Clauses 1-17 []
  7. Provision under Article IV, Section 2 of the U.S. Constitution, providing that federal law is superior to and overrides state law when they conflict. Legal Information Institute []
  8. Implied Powers []
  9. H.R.3590 – Patient Protection and Affordable Care Act: full text []
  10. H.R. 3162 — USA PATRIOT Act: full text []
  11. Full text of Federalist No. 33 []
  12. South Carolina Ordinance of Nullification, November 24, 1832 []
  13. Discussion of the Nullification Crisis []
  14. []
  15. Taken from the Wikipedia entry for “State’s Rights” []
  16. The Great Centralizer: Abraham Lincoln and the War between the States>/a>; DiLorenzo (1998) []
  17. 26-State Class Action Complaint filed 3/23/10 []
  18. 26-State Class Action Complaint filed 3/23/10 []
  19. A Review of the FBI’s Use of National Security Letters: Assessment of Corrective Actions and Examination of NSL Usage in 2006 []
  20. Amazon’s list of books on the PATRIOT Act and its impact []
  21. United States v. Darby 312 U.S. 100, 124 (1941) []
  22. Missouri v. Holland, 252 U.S. 416 (1920) []
  23. Mayfield v. United States, 504 F. Supp. 2d 1023 (2007) []
  24. United States v. Alfonso Lopez Jr., 514 U.S. 549 (1995) []
  25. Gonzales v. Raich, 545 U.S. 1 (2005) []
  26. see Maslow’s Hierarchy []
  27. The Social Security Act of 1935 []
  28. Trading Freedoms: for the Children []
  29. TSA security looks at people who complain about … TSA security []

Important Recent Supreme Court Decisions

The U.S. Supreme Court has made some very important decisions during this year’s session. Some of these decisions directly affect the life and possibilities of relief for those facing or serving time in federal prison. Here are three of the biggest ones.

Tapia v. United States


Federal law does not allow rehabilitation to be used as a factor when handing down a sentence1. Now the Supreme Court has put case law behind this. Ms.Tapia was given a lengthened sentence of incarceration for the purpose of providing sufficient sentence-length to participate in the Bureau of Prison’s Residential Drug Abuse Program (RDAP). Successful completion of this program could shorten her sentence by up to on year if completed successfully. However, this reduction is not guaranteed.

Why is this important? Two reasons: First, the U.S. Supreme Court is on-record acknowledging that prison has no rehabilitative properties. Second, a judge cannot extend a sentence that would have normally been handed down in the interest of rehabilitation. If you were sentenced in this way, you can now appeal citing Tapia v. United States and have the excessive length removed from your sentence. Let us help you do that!

Brown v. Plata


The United States incarcerates its citizens at seven to ten times the rate of European countries2. In real-world terms, one out of every 736 people in the United States is currently behind bars.

We deem it necessary to incarcerate more of our people—in rate as well as absolute numbers—than the world’s most draconian authoritarian regimes. Think about that. Despite our “land of the free” motto, we have more prisoners than China, and they have a billion more people than we do3.

In California, overcrowding has become so sever that — as of this court decision — being incarcerated there is a violation of the Cruel and Unusual Punishment clause of the 8th amendment to the U.S. Constitution! The decision in Brown v. Plata was to order California to decrease its prison population. While this decision seems obvious to many citizens who recognize how broken the prison system is, the Supreme Court wasn’t so convinced. What should have been a slam-dunk, unanimous decision ended up being a 5-4 split in favor of Plata. Some justices believe that releasing any individual before their sentence is completed puts the public at undue risk.

Respectfully, I believe that his notion is simply the result of fear-mongering by the uninformed. Releasing people from their sentences ahead of schedule will not cause the sky to fall.

Bond v. United States


Until this decision, many defendants were prevented from making legitimate claims against the court because certain parts of the Constitution were not considered to be appropriate for these individuals to use.

In Bond, the defendant inflicted a minor burn on her husband’s mistress by putting caustic substances on objects the woman was likely to touch. She was charged in federal court for violating the Chemical Weapons Treaty4. This charge is reserved for terrorists using chemical weapons and dirty bombs — not putting skin irritants on a mistress’ keyboard and mouse. Bond challenged this, citing that her charge violated the 10th amendment to the U.S. Constitution which prevents the federal government from interfering with powers reserved for States.

More can be said about this decision, but in basic terms: if the federal government can bring down charges based on major treaties and Congressional acts simply to railroad a defendant, then a defendant can bring down the full force of the Constitution to combat such insanity. The 10th amendment was formerly reserved for State’s use only in federal court (e.g., the 26-state class action lawsuit against the current “ObamaCare” bill). Now, under Bond, an individual defendant may use the 10th amendment as a defense in federal court.


While only the Tapia ruling has immediate implications on federal defendants and federal inmates, all three decisions are important in the inevitable reform of the American system of mass incarceration. How this reform will occur is anybody’s guess. However, when the federal and state government refuse to actively remedy the cruel and unusual conditions under which they incarcerate the citizens of this country, the courts can and do assert their power to provide relief and take the lead in the needed reform of laws, jurisprudence, and perceptions of the prison system.

  1. 18 U.S.C. 3582 []
  2. From the International Centre for Prison Studies []
  3. In Defense of Flogging by Peter Moskos []
  4. 18 U.S.C. §229(a), F(1), (7), (8) []

Felons in America are no Longer Citizens

Felons Losing Citizenship

What makes the difference between a citizen and non-citizen of the United States? A laundry list of items can be made to cite what makes a these differences, but the core of this list can be found in the U.S. Constitution.

The Bill of Rights1 contains the first ten amendments to the Constitution, and enumerates what the Declaration of Independence calls “Inalienable Rights”2of all men. Specifically, those who are residents and citizens of this country. The Amendments that follow the Bill of Rights expand these rights further.

What happens when a citizen of the U.S. becomes a felon? Answer: many of those inalienable rights become alienated to them. Lets take a closer look at some of these.

The Second Amendment3 says that the right to keep and bare arms shall not be infringed. Yet, a felon in the U.S. cannot keep and bare arms legally and the consequences for doing so are dire4.

The Fourth Amendment5 protects citizens of the U.S. from unlawful search and seizure. Yet, a felon on or off of probation, parole, or supervision loses the standard of the Fourth Amendment where law enforcement needs only
reasonable suspicion to invade their privacy.

The Fifth Amendment6 protects citizens against self-incrimination. Yet, a felon on probation, parole, or supervision must adhere to rules that require honest answers to their supervising officer or risk violating their supervision. Even if
answering that question would mean incriminating themselves. That is placing a felon between a rock and a hard place: between their Fifth Amendment protections and their rules of supervision.

The Sixth Amendment7 ensures a speedy and public trial by impartial jury. Is this even possible for somebody with a pre-existing felony record?

The Fifteenth8 and Nineteenth9 Amendments expand the right to vote to all U.S. Citizens. Yet, felons lose this right (some States, however, are starting to give this one back).

This is a short list and a short article. However, the point is to highlight what makes a man or woman a citizen of the United States. Above are six Amendments to the U.S. Constitution which guarantee rights to citizens of its borders.
These six Amendments do not apply to felons, so the title of this article stands: Felons in America are no Longer Citizens.

  1. Text of the Bill of Rights []
  2. Text of the Declaration of Independance []
  3. The Second Amendment to the US Constitution []
  4. Congressional panel on the construed nature and consequences of violating arms control law []
  5. The Fourth Amendment to the US Constitution []
  6. The Fifth Amendment to the US Constitution []
  7. The Sixth Amendment to the US Constitution []
  8. The Fifteenth Amendment to the US Constitution []
  9. The Nineteenth Amendment to the US Constitution []

How Far is Too Far? Trading Freedoms for the Children

What are We, as Americans, Putting up With?

“‘The state must declare the child to be the most precious treasure of the people.’ .. as long as the government is perceived as working for the benefit of children, the people will happily endure almost any curtailment of liberty and almost any deprivation. It is truly heartwarming to see how well this lesson has been learned by the American government. In the name of children, incursions into the private lives of American citizens have been made that we Nazis would have gazed at with open-mouthed admiration.”
— Mein Kampf, Adolph Hitler, Page 403

For the Children

One of the easiest vehicles a politician can use to push an unpopular bill through congress is using the excuse of “protecting the children”. As one can see in the quote above, this is not a new concept. Trading freedoms for security is a very popular theme in today’s culture in America. Look at the Traffic Safety Administration: the TSA can overtly grope a traveler’s groin or label them a terrorist if they refuse or complain about the molestation.

In the name of protecting children, the civil rights of entire portions of the United States population are infringed, trampled, or stripped away entirely. I am referring to, of course, Sex Offenders. Ah, the dreaded Sex Offender…

To be objective, there are admittedly monsters out there who are predators and prey on children. They kidnap and kill them after committing unspeakable sexual assaults on the victim. The news is chalk full of the most twisted, sensationalized stories in the U.S. regarding these unconscionable monsters. There is no excuse for these actions and predators like this are absolutely un-defensible. However, these are the exception, not the rule.

Sex Offender Registries became prevalent in State laws in the 1990’s, and focused on keeping tabs on violent, predatory, and repeat offenders. Back then there were 11 crimes that were worthy of such administrative monitoring (rape, aggravated sexual assault on a minor, kidnapping a minor, etc.).

There are now, on average, 1891.

Many laws being passed make lives more difficult for sex offenders. The presumption is that these laws are aimed protecting the community and directed at the predators who are guilty of the 11 heinous crimes referenced above. That presumption is usually false. Many laws that place higher restrictions on sexual offenders, do so across the board to anybody registered as a sex offender. Take Nebraska’s law, LB-2852, for example. Among other things, this law changed the State’s web site to include anybody and everybody on its sex offender registry. Good idea, or bad idea?

Does a man who had a baby with his girlfriend when she was 1 month away from the age of consent, really need to be on the same website as a pedophile-kidnapper? Before you balk at this for being irrational, ask yourself this: if you’ve ever looked up a sex offender locating website, can you tell who are the predators and who aren’t? Do you immediately lump everybody on that website into the same group of gutter-scum?

Can you tell the difference between crime codes? The man above is real, and his crime is Attempted 1st Degree Sexual Assault. Would you know what that means? He is now in his thirties and has been on the registry since the 1990’s. Most would assume now, because of his current age, that his crime was that of a pedophile.

Lets look at this from another angle. A real teenage boy in Georgia receives a ‘Sext’ from a girl he went to high school with. Catastrophe strikes and he is put on probation for possessing child pornography. That is 25 years on Georgia’s sex offender registry. When this kid is 40, he will still be on the registry with a child pornography conviction. Would you assume he was a teenager when he was charged, or would you immediately be afraid of him?

With over 728,0003 people now registered as sex offenders in the United States, the state of fear is gripping the average American citizen. In States like Nebraska there are three levels of sexual offenders4.

  • The first level is misdemeanor crimes like public indecency (flashing at Mardi Gras, pissing in the alley behind the bar), child pornography cases like the kid described above, and non-contact crimes.
  • The second is for non-aggravated contact crimes, and more severe crimes with no contact.
  • The third is a lifetime registration for aggravated contact/assault crimes, repeat offenders, and violent predators.

The law cited above, LB-285, puts all of these classes together online on Nebraska’s Sex Offender web site. Many ordinary people without a law degree would tend to believe that anybody bad enough to be on that website is dangerous and should be avoided. It’s a common misconception.

Back to the issue at hand: unconstitutional laws that are tolerated by the People under the guise of protecting our children.

Constitutional issues:

Ex Post Facto violations – Legally this means punishment after the fact. Somebody is charged, convicted, sentenced, and later punished again beyond their sentence. Sometimes called double-jeopardy, this is unconstitutional. People that were never on the sex offender registry because their crime was not a registrable offense at the time of conviction get put on a registry after the fact because of laws like LB-285. The Supreme Court considers sex offender registries legal because it does not believe being placed on a registry is a punishment (only civil administrative action). Would you feel punished if you were subject to these laws? (Some registrable crimes are not even sexual in nature like kidnapping or using a misleading domain name on the internet.)

Fourth Amendment5 violations – This means a search and seizure of property without proper cause. Many laws make provisions for State Police agencies to enter the home of a sex offender at any time and conduct a search. Fortunately, at this time, these portions of law have been held unconstitutional, but that doesn’t keep states from trying.

Eighth6 and Fourteenth7 Amendment violations – These are Due Process of Law and Excessive, Cruel, and Unusual punishment. In Colonial times, an individual convicted of an unpopular crime would be forced to wear a sign around their neck and stand in the town square to be publicly mocked. Others were branded like cattle with a letter like ‘M’ for murder, ‘T’ for Thief, or ‘A’ for Hester Prynne8, to shame these individuals and drive them away from communities. The US Supreme Court doesn’t make the connection between these laws (which it considers as violating the Eighth Amendment) and sex offender registries.

Real Danger to Children

Fear makes many citizens want to lock up sexual offenders and throw away the key. However, lets look at the dangers:

According to a 1994 study by the Bureau of Justice Statistics9, slightly over 5% of all sex offenders re-offend sexually, over 90% of sexually offenses happen from first-time offenders, and the recidivism rate of sexual offenders (returning to prison for any reason) was 25% lower than the average rates of any other crime (43% v. 68%). The recidivism rate of sexual offenders is the lowest of any offense type except for murder/homicide.

The natural proclivity of some sex offenders (i.e. predators, untreated addicts, etc.), however, shows that a convicted sex offender is four times more likely to commit a sex crime in the future than somebody convicted of another type of crime. This may scare some people, but think to yourself: how much more likely is a bank robber to commit another bank robbery than an average citizen who has never robbed a bank? Statistics show they are much higher than four times more likely than the average non-bank-robber citizen of America to repeat that crime.

The study above showed that 90% of all sexual offenses occurred by a non-registered, first-time sexual offender. A child, or anybody for that matter, is more likely to be sexually assaulted by somebody who is not on the registry at all (first-time offenders are obviously not on the registry). Logically, then, this means that the registered sex offender in your neighborhood is statistically SAFER than your non-registered neighbors.

The Nation, and its States, spend a huge amount of time and money on sexual offender registries to protect our children. But how are we protecting our children?

  • Jaycee Dugard was kidnapped by a level 3 sex offender, under the harshest conditions of sex registry, but nothing in the registry protected her from Phillip Gurrido.
  • Dru Sjodin was kidnapped and murdered by a registered sex offender, but nothing in the registry requirement could have prevented her murder.
  • Michael Devlin kidnapped two boys, one of them for 5 years. He had no criminal record and will never have to register as a sex offender (he received 3 life sentences).
  • Adam Walsh was abducted from a Sears department store at the Hollywood Mall in Hollywood, Florida, on July 27, 1981, and later found murdered and decapitated. Adam’s Father, John, was the force behind the Adam Walsh Act10.

In all of these cases, the kidnapper traveled well out of his way to abduct his victim. Nothing in any State’s sex offender registry could have prevented these crimes. These men were sick, pathological, focused on finding a victim, and the rarest of sexual offenders. Yet, how could registries have prevented these crimes? Answer: the crimes could not have been prevented by sexual offender registries.

In this new decade, sex registries are required to be compliant with the federal Adam Walsh Act, which lists every level of sex offender are actually counter-productive to their stated cause. By listing all levels of offenders online, the violent and predatory offenders can hide within the masses of the online databases.

“The registry is not being used as it was intended, so let’s get rid of it and focus on the 10,000 violent offenders and track them.”
-John Walsh

What kills children?

The following is from the CDC and the American Journal of Psychiatry on the top causes of deaths to minors in 200211:

  • A child is 1,400% more likely to hang themselves than to be kidnapped and killed by a Sex Offender
  • A child is 1,500% more likely to shoot themselves than to be kidnapped and killed by a Sex Offender
  • A child is 3,200% more likely to murdered by a firearm from somebody besides a Sex Offender
  • A child is 4,000% more likely to shot, stabbed, burned alive or poisoned than kidnapped and killed by a Sex Offender
  • A child is 15,300% more likely to killed in a car accident than to be kidnapped and killed by a Sex Offender

So really, how bad is it to be a Sex Offender?

Besides being virtually unemployable, and subject to vigilantism and harassment, all Sex Offenders:

  • Cannot use FEMA storm shelters
  • Cannot travel without prior approval
  • Cannot stay in hospital overnight without approval

and can be:

  • Barred from living with their family/children
  • Barred from gyms
  • Barred from children’s events
  • Barred from tourist destinations
  • Barred from public parks
  • Barred from student loans and continuing education
  • Barred from any type of scholarship
  • Barred from FHA loans
  • Barred from Small Business Loans
  • Barred from Tax Credits
  • Barred from Section 8, public housing, homeless shelters.

Would you choose this life for violent, predatory sexual assailants? I would. What about low-risk men and women who made stupid choices and never touched a child or another human being in a sexual way?

How far will things go before the American public takes a stand against trampling the Constitutional rights of a group of people in the name of a greater cause? This is a very slippery slope of government subtly trading freedoms away under the guise of protecting children.

Three examples:
Sexual Offender Laws (America) – cause: child safety
TSA molestation and profiling (America) cause: public safety from terrorists

. . .and eventually. . .

Genocide (Nazi Germany, ca. 1930’s) – cause: racial purity

This might seem like a huge jump, but consider the quote, and I’ll end with that:

“First they came for the Socialists,
and I did not speak out because I was not a socialist.
Then they came for the trade unionists,
and I did not speak out because I was not a trade unionist.
Then they came for the Jews,
and I did not speak out because I was not a Jew.
Then they came for me,
and there was no one left to speak for me.”
– Pastor Martin Niemöller
Interned from 1941-1945 at the Nazi Concentration Camp in Dachau

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  1. Taken from the aggregate of all federal penal codes identified under SORNA []
  2. Full text of LB-285 []
  3. Source is an NCMEC study on the geographical locations of sex offenders. []
  4. Office of Sex Offender Sentencing, Monitoring, Apprehending, Registering, and Tracking []
  5. The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized. []
  6. Excessive bail shall not be required, nor excessive fines imposed, nor cruel and unusual punishments inflicted. []
  7. Full text of the Fourteenth Amendment to the United States Constitution []
  8. Main character in Nathaniel Hawthorne’s classic novel The Scarlet Letter []
  9. Recidivism of Sex Offenders Released from Prison in 1994 []
  10. The Adam Walsh Child Protection and Safety Act of 2006 []
  11. CDC study for all deaths in 2002 []