Sometimes a little history is in order to understand the evolution of U.S. law and the rights we assume have always been ours. There's some real food for thought in the kernels of history...and those of you who considering the relative importance of the next choice for SCOTUS and POTUS vs. "Our Constitutional Rights" may enjoy (or need) some context.
America tells an enthralling tale of liberty and justice and rights. And no, even some of the ones you take for granted now (like the Fourth Amendment protection against wiretapping) weren't always rights, even in my lifetime.
Most of us take our Fifth Amendment rights for granted. But it wasn't until 1963 that the Supreme Court actually ruled that you had to be informed of those rights before you were questioned while in custody. 1963. And the only reason the reading of Miranda rights became standard was because RFK, as attorney general, ordered all Federal police agencies to read those rights. (Trust me, they objected.)
Then another decision was necessary to say that any information gained from interrogation in custody when the Miranda statement had not been read could be thrown out of court. So, your right not to self-incriminate or be beaten into a confession...they weren't your rights before 1963, because basically no one had to tell you about them, and if they could persuade you to talk, anything you said could be used against you, even if you didn't know you didn't have to answer their questions.
Then there was the Civil Rights Act. Man, it only took us the better part of two centuries to get around to granting the equality guaranteed by the constitution to our brothers and sisters of a darker hue. And when we did that did all those pieces fall right into place? No. Discrimination exists today, it just went underground.
Then there was the Voting Rights Act, because somehow having civil rights didn't mean you had the right to vote if you were black. Amazing. And as recently as 2000, Florida managed to remove black voters from the rolls in huge numbers, and to screw up polling stations in black precincts, and put enough state troopers and cops outside those precincts to make anyone who'd ever enjoyed getting into trouble for "driving while black" or even "taking a stroll while black" hesitate to walk into the polls.
In my lifetime alone I've seen major advances in rights. I still get a little lightheaded when I realize that the Miranda decision, and Gideon v. Wainright all occurred while I was walking this earth.
There's a lot more, but the point I want to make is that all these advances in civil liberties occurred while Democrats held the reigns of power. Even under Carter we saw the limitation of the CIA, the War Powers Act (so totally gutted now) and the rollback of government secrecy. No sooner did Reagan get in office than he started getting rid of Carter's reforms.
But now let's talk about wiretapping. Some of you seem to think that the Fourth Amendment always protected us from that. Sorry, no. You see, telephones were a new thing, never before considered under law, so you got the following from the courts:
In 1928, the police caught Roy Olmstead running a $2 million a year bootlegging operation, who was convicted partially on the basis of evidence obtained from warrantless wiretaps installed by federal agents. Olmstead's appeal led to one of the first Supreme Court wiretapping decisions, Olmstead v. United States, where the court ruled that the evidence obtained from tapping Olmstead's phone calls did not involve any trespass. Five justices agreed that the Fourth Amendment protected tangibles alone and since a conversation is intangible, using a tapped conversation as evidence does not constitute search and seizure. Judge Louis Brandies dissented, however, arguing that "whenever a telephone is tapped, the privacy of the persons at both ends of the lines is invaded... as a means of espionage, writs of assistance and general warrants are but puny instruments of tyranny and oppression when compared with wiretapping". [2] Therefore, early on in the wiretapping debates, law enforcement and privacy interests clashed head on. The view of wiretapping as a type of search involved very controversial interpretations of the Fourth Amendment.
But at least the argument didn't end there:
Between 1928 and 1968, the courts changed their wiretapping stance several times. Nardone vs. United States reversed Olmstead vs. United States, ruling that wiretapped information could not be submitted as evidence in court in regards to the 1934 Federal Communications Act. However, two more Supreme Court cases in 1967, Berger and Katz, once again reverted the court's position to reaccept wiretapping as search and seizure protected by the Fourth Amendment. In light of these Supreme Court opinions, as well as the FBI's argument that wiretapping was vital to fighting organized crime, Congress authorized police wiretapping in 1968 under a system of protections intended to compensate for the inherent intrusiveness of wiretapping. This wiretap law is commonly referred to as "Title III" since it arises from Title III of the Omnibus Crime Control and Safe Streets Act. In it, Congress allowed wiretapping by the law enforcement only upon finding probable cause and only as a last resort. Furthermore, because of the "knock and notice" requirement of any traditional search, Congress required the law enforcement to provide notice of any wiretapping activity after the conclusion of the investigation.
So there you have it, folks. Wiretapping became a fully protected Fourth Amendment right only finally in 1968. In my lifetime.
Under a democractic administration.
My point is this: Under 40 years of basically democratic rule, we got a lot of rights we take for granted these days. For all the slip-sliding we've seen in the last eight years, they haven't taken them all away. They can't, and even now people are rising up to protect a right they didn't really have until 1968.
There were a lot of other good things that came out of democratic congresses and administrations, but a mere diary isn't the place to write a history book. I would suspect, however, that a lot of people here aren't old enough to remember that a lot of what they take for granted wasn't always ours by right. That all these things had to be fought for, enacted and litigated.
But don't tell me the Dems always cave to the Repugs, cuz it's not true.
History shows dems will give us a progressive agenda when they have the political capital and votes to do it. That they'll even spend that capital on less-than-popular measures, like the Civil Rights Act, for the good of the country. (I can still remember my mother insisting, in great disgust, that the Civil Rights Act got shoved down our throats only because Johnson knew where all the bodies were buried and he was willing to play dirty. I was so shamed by that remark...even though it was true.)
But you have to have the chips, folks. The political capital and power. And right now we don't have it.