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Upside Down World: Strip Searches Good, Health Care Mandate Bad

April 6, 2012

Well-written column.  Well-reasoned too.

With its recent decision to allow strip-searches for any offense before admitting someone to jail, the U.S. Supreme Court gave us a stark reminder of just how conservative, indeed reactionary, it is. What makes this decision even more jarring is that it comes only days after the conservative bloc of the court made it clear how unpalatable it finds the personal mandate to buy health insurance, the linchpin of President Barack Obama‘s health care plan. So, for those of you keeping score at home, a majority of justices view a strip-search for something as trivial as failing to use a turn signal as perfectly acceptable, but requiring a citizen to buy health care is an unwarranted intrusion on personal liberty.

You may think I’m joking about the turn signal, but I’m not. Here are a few examples of the “offenses” that led to strip-searches in recent years: violating a leash law, driving without a license, failing to use a turn signal and riding a bicycle without an audible bell. And don’t think that your upstanding reputation will protect you. A nun was strip-searched after an arrest for trespassing during an anti-war demonstration. Presumably, the police were trying to locate that dangerous weapon that goes under the street name “crucifix.” It gets better — the court’s decision explicitly states that there does not have to be a reasonable suspicion that the arrested person has any contraband secreted on his or her person.

To justify this position, Justice Anthony Kennedy wrote that “people detained for minor offense can turn out to be the most devious and dangerous criminals,” noting that the Oklahoma City bomber Timothy McVeigh was first arrested for driving without a license plate. The ridiculousness of this argument is almost breathtaking. I used to teach American history, and I would have found this risible in a student paper, let alone coming from a Supreme Court justice.

In the first place, a strip-search played no role in McVeigh’s arrest or conviction (and it’s difficult to imagine how it might have since it is no mean feat to hide several thousand pounds of explosives on your person). More important, Kennedy’s argument has no basis in fact since there is no evidence that minor offenses, such as failing to use a turn signal, are a sign of anything more dangerous than forgetfulness. But his reasoning is an excellent rationale for a police state in which any offense, no matter how minor, can be treated as a sign that the person is a “devious and dangerous criminal.”

In contrast, the conservative bloc of justices took great offense at the notion that individuals might be forced to buy health insurance. Justice Antonin Scalia compared it to forcing someone to buy broccoli. Unfortunately, Solicitor General Donald Verrilli tripped all over himself responding to this, probably because it was tough to imagine that he would be asked to compare health insurance to broccoli. But let me help him out. My decision to forgo broccoli does not raise the price for someone else. In fact, it lowers the price. In addition, a sick person cannot be refused his right to buy broccoli. Finally, the grocery store cannot charge different prices for the broccoli depending on how much negotiating leverage a shopper has.

According to statistician Nate Silver who has analyzedU.S. Supreme  court voting records going back to the 1930s, this is the most conservative court during that period (and is apparently more conservative than the famously liberal Warren Court was liberal). Although they generally claim that their bedrock principle is protecting personal liberty against government intrusion, the conservative justices seem to have settled on an odd definition of liberty. Apparently, their conception does not include the liberty of keeping your clothes on. But it does include the liberty of forgoing health insurance, even though that will mean a corresponding loss of the liberty to have health insurance for tens of millions of other Americans.

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