Enemy Combatant
Saturday, July 05, 2003
Another point to make about the recent sodomy decision, Lawrence v. Texas: I was wondering what Justice Kennedy's expansive, almost poetic opening lines reminded me of, and it finally occurred to me: Papachristou v. Jacksonville, another case in which the cops busted an interracial couple and tried to charge them with an ostensibly race-neutral offense: "prowling by auto."
First, here's Justice Kennedy's opening lines in the Lawrence case:
Liberty protects the person from unwarranted government intrusions into a dwelling or other private places. In our tradition the State is not omnipresent in the home. And there are other spheres of our lives and existence, outside the home, where the State should not be a dominant presence. Freedom extends beyond spatial bounds. Liberty presumes an autonomy of self that includes freedom of thought, belief, expression, and certain intimate conduct. The instant case involves liberty of the person both in its spatial and more transcendent dimensions.
And here's Justice Douglas writing for the Court in Papachristou, back in 1972:
The poor among us, the minorities, the average house-holder are not in business and not alerted to the regulatory schemes of vagrancy laws; and we assume they would have no understanding of their meaning and impact if they read them. Nor are they protected from being caught in the vagrancy net by the necessity of having a specific intent to commit an unlawful act. See Screws v. United States, 325 U.S. 91 ; Boyce Motor Lines, Inc. v. United States, supra.
The Jacksonville ordinance makes criminal activities which by modern standards are normally innocent. "Nightwalking" is one. Florida construes the ordinance not to make criminal one night's wandering, Johnson v. State, 202 So.2d, at 855, only the "habitual" wanderer or, as the ordinance describes it, "common night walkers." We know, however, from experience that sleepless people often walk at night, perhaps hopeful that sleep-inducing relaxation will result.
Luis Munoz-Marin, former Governor of Puerto Rico, commented once that "loafing" was a national virtue in his Commonwealth and that it should be encouraged. It is, however, a crime in Jacksonville.
"[P]ersons able to work but habitually living upon the earnings of their wives or minor children" - like habitually living "without visible means of support" - might implicate unemployed pillars of the community who have married rich wives.
"[P]ersons able to work but habitually living upon the earnings of their wives or minor children" may also embrace unemployed people out of the labor market, by reason of a recession or disemployed by reason of technological or so-called structural displacements.
Persons "wandering or strolling" from place to place have been extolled by Walt Whitman and Vachel Lindsay. The qualification "without any lawful purpose or object" may be a trap for innocent acts. Persons "neglecting all lawful business and habitually spending their time by frequenting . . . places where alcoholic beverages are sold or served" would literally embrace many members of golf clubs and city clubs.
Walkers and strollers and wanderers may be going to or coming from a burglary. Loafers or loiterers may be "casing" a place for a holdup. Letting one's wife support him is an intra-family matter, and normally of no concern to the police. Yet it may, of course, be the setting for numerous crimes.
The difficulty is that these activities are historically part of the amenities of life as we have known them. They are not mentioned in the Constitution or in the Bill of Rights. These unwritten amenities have been in part responsible for giving our people the feeling of independence and self-confidence, the feeling of creativity. These amenities have dignified the right of dissent and have honored the right to be nonconformists and the right to defy submissiveness. They have encouraged lives of high spirits rather than hushed, suffocating silence.
They are embedded in Walt Whitman's writings, especially in his "Song of the Open Road." They are reflected, too, in the spirit of Vachel Lindsay's "I Want to Go Wandering," and by Henry D. Thoreau.
This aspect of the vagrancy ordinance before us is suggested by what this Court said in 1876 about a broad criminal statute enacted by Congress: "It would certainly be dangerous if the legislature could set a net large enough to catch all possible offenders, and leave it to the courts to step inside and say who could be rightfully detained, and who should be set at large." United States v. Reese, 92 U.S. 214, 221 .
The expansive language of Lawrence means, I think, just what Justice Scalia in his dissent clearly fears it means: Other anti-gay laws are now doomed, as well. The first to go, IMHO, will be "Don't Ask, Don't Tell." Surely the Code of Military Justice's sodomy ban can't hold up in the face of the Right to Privacy, can it? And if gay sex is constitutionally protected, the NEXT case to bring, IMHO, is one arguing that an individual homosexual male has a CONSTITUTIONAL RIGHT to take up arms to DEFEND HIS COUNTRY! (Actually, this case SHOULD have been brought during the Afghanistan War -- and, who knows? it may well be percolating through the system even as I type . . . )
