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These days, the buzz on Capitol Hill seems loudest about Gary Condit.
One of the most surprising decisions of the Supreme Court term just concluded was Justice Antonin Scalia's ruling in favor of a criminal defendant who claimed that a thermal imaging device violated his Fourth Amendment rights. The police used the device to measure the heat leaking from Danny Kyllo's house and inferred from that information that he was growing marijuana inside with heat lamps. Indeed, he was, as the subsequent search revealed: more than 100 plants' worth.
In the most unlikely collaboration of the year, Justices Scalia and Clarence Thomas joined forces with Justices Ruth Bader Ginsburg, Stephen Breyer and David Souter to rule that use of the thermal imaging device was an unconstitutional search. The decision is surprising in several respects--and not just because it rules for a drug defendant. It announces a bright-line rule barring the use of high-tech devices to intrude upon the privacy of the home, in an era where the Court has largely abandoned bright-line rules except where they benefit the police. It speaks in majestic tones about protecting privacy from the onslaught of technology, from a Court that has all but given up on privacy in favor of crime control. And it reaches a result that was by no means foreordained. This was a close case, as Justice John Paul Stevens's quite reasonable dissent shows.
So what's going on here? Should liberals (or drug manufacturers) start looking to Justices Scalia and Thomas for protection of criminal defendants' rights? I'm afraid not. This is a rare instance of an alliance between liberals and libertarians, united here in support of the sanctity of the home. For Scalia and Thomas, at least, it all comes down to property. Step outside, and you're fair game.
The dispute centered on whether the use of the thermal imaging device was a "search" that invaded Kyllo's "reasonable expectation of privacy." The police argued that the device merely registered information from the outside of the home. A police officer's observation that snow melted more quickly on certain parts of a roof would provide the same information, but no one would call that a "search." Since the information came from outside the house, it invaded no privacy.
Justice Scalia rejected that approach, and concluded that whenever the police use "sense-enhancing technology" not in general public use to obtain information that they otherwise could not have gathered without entering the home, they have conducted a search, for which they must have probable cause and a warrant. His opinion waxes eloquent on the home as castle and the need to protect citizens from the intrusions of modern technology. (None too soon, as police are already working on ultrasound technology for houses, although one wonders how they're going to apply petroleum jelly to aluminum siding.)
In its attempt to protect privacy from advancing technology, the decision is a landmark and will stand along with the Warren Court's 1967 decision in Katz v. United States, which extended the Fourth Amendment to include wiretapping. But in another respect, the decision marks an ironic return to the pre-Katz world. Before Katz, Fourth Amendment law was governed by property notions, leading the Court to make ridiculous distinctions between listening devices attached to an outside wall with a thumbtack, which were said to invade property and require a warrant, and similar devices merely taped to the wall, which were deemed not to invade property and therefore not to require a warrant.
Katz importantly held that the Fourth Amendment protects "people, not places" and eschewed arcane property questions for an inquiry into whether the government had invaded a person's "privacy." But Kyllo brings us back full circle, because without any reasoned explanation it expressly limits its protection to homes. Justices Scalia and Thomas's libertarian instincts stop at the doorstep. A man's home may be his castle, but in the view of these Justices, at least, the streets still belong to the police.
The NAACP is back, and it plans on being heard.
Bush's Attorney General is moving the conservative agenda predicted by critics.
Is human cloning a feminist issue? Two
cloning bans are currently winding their way through Congress: In the
Senate, the Human Cloning Prohibition Act seeks to ban all cloning of
human cells, while a House version leaves a window open for cloning
stem cells but bans attempts to create a cloned human being. Since
both bills are the brainchildren of antichoice Republican yahoos, who
have done nothing for women's health or rights in their entire lives,
I was surprised to get an e-mail inviting me to sign a petition
supporting the total ban, organized by feminist heroine Judy
Norsigian of the Boston Women's Health Book Collective (the producers
of Our Bodies, Ourselves) and signed by Ruth Hubbard, Barbara
Seaman, Naomi Klein and many others (you can find it at
www.ourbodiesourselves.org/clone3.htm). Are feminists so worried about "creating a
duplicate human" that they would ban potentially useful medical
research? Isn't that the mirror image of antichoice attempts to block
research using stem cells from embryos created during in vitro
My antennae go up when people start talking about
threats to "human individuality and dignity"--that's a harrumph, not
an argument. The petition raises one real ethical issue, however,
that hasn't gotten much attention but by itself justifies a ban on
trying to clone a person: The necessary experimentation--implanting
clonal embryos in surrogate mothers until one survives till
birth--would involve serious medical risks for the women and lots of
severely defective babies. Dolly, the cloned Scottish sheep, was the
outcome of a process that included hundreds of monstrous discards,
and Dolly herself has encountered developmental problems. That's good
reason to go slow on human research--especially when you consider
that the people pushing it most aggressively are the Raelians, the
UFO-worshiping cult of technogeeks who have enlisted the services of
Panayiotis Zanos, a self-described "cowboy" of assisted reproduction
who has been fired from two academic jobs for financial and other
Experimental ethics aside, though, I have a hard
time taking cloning seriously as a threat to women or anyone
else--the scenarios are so nutty. Jean Bethke Elshtain, who took a
break from bashing gay marriage to testify last month before Congress
against cloning, wrote a piece in The New Republic in 1997 in
which she seemed to think cloning an adult cell would produce another
adult--a carbon of yourself that could be kept for spare parts, or
maybe a small army of Mozart xeroxes, all wearing knee breeches and
playing the Marriage of Figaro. Actually, Mozart's clone would
be less like him than identical twins are like each other: He would
have different mitochondrial DNA and a different prenatal
environment, not to mention a childhood in twenty-first-century
America with the Smith family rather than in eighteenth-century
Austria under the thumb of the redoubtable Leopold Mozart. The clone
might be musical, or he might be a billiard-playing lounge lizard,
but he couldn't compose Figaro. Someone already did
People thinking about cloning tend to imagine Brave New
World dystopias in which genetic engineering reinforces
inequality. But why, for example, would a corporation go to the
trouble of cloning cheap labor? We have Mexico and Central America
right next door! As for cloning geniuses to create superbabies, good
luck. The last thing most Americans want are kids smarter than they
are, rolling their eyeballs every time Dad starts in on the gays and
slouching off to their rooms to I-M other genius kids in Sanskrit.
Over nine years, only 229 babies were born to women using the sperm
bank stocked with Nobel Prize winners' semen--a tiny fraction, I'll
bet, of those conceived in motel rooms with reproductive assistance
from Dr. Jack Daniel's.
Similarly, cloning raises fears of
do-it-yourself eugenics--designer babies "enhanced" through gene
manipulation. It's hard to see that catching on, either. Half of all
pregnancies are unintended in this country. People could be planning
for "perfect" babies today--preparing for conception by giving up
cigarettes and alcohol and unhealthy foods, reading Stendhal to their
fetuses in French. Only a handful of yuppie control freaks actually
do this, the same ones who obsess about getting their child into a
nursery school that leads straight to Harvard. Those people are
already the "genetic elite"--white, with lots of family money. What
do they need genetic enhancement for? They think they're perfect
Advocates of genetic tinkering make a lot of assumptions
that opponents tacitly accept: for instance, that intelligence,
talent and other qualities are genetic, and in a simple way. Gays,
for example, worry that discovery of a "gay gene" will permit
selective abortion of homosexual fetuses, but it's obvious that
same-sex desire is more complicated than a single gene. Think of
Ancient Greece, or Smith College. Even if genetic enhancement isn't
the pipe dream I suspect it is, feminists should be the first to
understand how socially mediated supposedly inborn qualities
are--after all, women are always being told anatomy is their
There's a strain of feminism that comes out of the
women's health movement of the seventies that is deeply suspicious of
reproductive technology. In this view, prenatal testing, in vitro
fertilization and other innovations commodify women's bodies, are
subtly coercive and increase women's anxieties, while moving us
steadily away from experiencing pregnancy and childbirth as normal,
natural processes. There's some truth to that, butwhat about the side
of feminism that wants to open up new possibilities for women?
Reproductive technology lets women have children, and healthy
children, later; have kids with lesbian partners; have kids despite
disabilities and illness. Cloning sounds a little weird, but so did
in vitro in 1978, when Louise Brown became the first "test tube
baby." Of course, these technologies have evolved in the context of
for-profit medicine; of course they represent skewed priorities,
given that 43 million Americans lack health insurance and millions
worldwide die of curable diseases like malaria. Who could argue that
the money and brain power devoted to cloning stem cells could not be
better used on something else? But the same can be said of every
aspect of American life. The enemy isn't the research, it's
In Terre Haute, the effects of one execution are only the beginning.
So if you managed to endure CBS's three-plus hours of Grammy cov erage, if you survived the sparsely attended protests from GLAAD and NOW, host Jon Stewart's lame commentary, the lip-synced perfor
As the Senate begins its hearings on the nomination of John Ashcroft as Attorney General, it is important to focus on the different roles that his office plays in the administration of justice in
Since our very beginning, Pacifica Radio has been a tumultuous and
controversial experiment, striving to mesh together divergent views and
Could the State Department's antidrug contractors in South America possibly
be dabbling in narcotics trafficking?
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