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Our Freedom and Our Rights
Josey1
Member Posts: 9,598 ✭✭
Our Freedom and Our Rights
by Clark Walter
The birth of this Nation signaled the dawn of a new day in the history of Mankind's struggle against the bondage of class distinctions and tyrants. We cannot today fully appreciate the tremendous impact of this event. Mankind had finally broken the shackles that had destined him to be a slave since the dawn of time. America would prove that equality of opportunity, coupled with the protection of our unalienable rights granted equally by our Creator, would inspire men and women to achieve a freedom that they, themselves, never dreamed was possible. Wave after wave of immigrants came to our shores thirsting for the chance to prove their worth and, in so doing, to earn their freedom and, incidentally, to build a new Nation. The practical idealism expressed in our Declaration of Independence was an inspiration and a clarion call to all the peoples of the world.
"We hold these truths to be self-evident, that all men are created equal, that they are endowed by their Creator with certain unalienable Rights, that among these are Life, Liberty and the Pursuit of Happiness."
These truths are self-evident because they are based on the long tradition of natural law which acknowledges that there is a "higher law" of right and wrong. The last five of the Ten Commandments are the foundation of our criminal law. It is this "higher law" from which we derive human law and against which we must evaluate all law. It is moral reasoning, not political will, which is the foundation of our government and the rationale for its existence. Our republic was nurtured by the high ideals and ambitions of a fiercely independent and religious people.
The Declaration of Independence says: "That to secure these Rights, Governments are instituted among Men, deriving their just Powers from the Consent of the Governed." They devised a government that would be strong enough to secure our rights, yet not so powerful as to be oppressive itself.
The Preamble of our Constitution states: "We the people of the United States, in order to form a more perfect Union, establish Justice, insure domestic Tranquillity, provide for the common defense, promote the general Welfare, and secure the Blessings of Liberty to ourselves and our Posterity, do ordain and establish this Constitution for the United States of America."
Article I, Section 8 states: "The Congress shall have the power to lay and collect Taxes, Duties, Imposts and Excises, to pay the debts and provide for the common Defense and the general welfare of the United States." It goes on to enumerate seventeen powers to execute that mandate. In Section 9 it withheld eight specifically enumerated powers.
These United States of America became an ideal. We were a living example that there was hope for the emancipation of all Mankind from the bondage of social status and tyrannical governments. We would prove that every person, regardless of race, creed or social status, can earn freedom by working to make this world a better place in which to live, while respecting those rights with which we are all endowed by our Creator. Many new governments adopted our Constitution which places upon government the responsibility to protect those rights.
Today we find ourselves dependent on a government which becomes more and more the master of our lives. Some people say that our Constitution is no longer relevant. They say that they are happy to pay taxes to defend America and to help the needy. To those we might ask: "Why, after 60 years, do all of our problems multiply and grow?" Today we have an uneasy sense that something is radically wrong in America. The corruption and criminal behavior of our fellow citizens in corporations, in civic, charitable and other organizations, in government agencies, and even in religious institutions are not acceptable. The cures for our problems seem to be worse than the disease. How and why has all of this happened?
In 1913, prior to our entering World War I, "war profiteers" were singled out as unpatriotic. Many people felt that their excessive profits should be shared with Uncle Sam to help pay for the war. Our sacred Bill of Rights stood in the way. "The right of the people to be secure in their persons, houses, papers and effects against unreasonable searchers and seizures, shall not be violated." Article I, Section 9 of the Constitution states: "No Capitation, or other direct, tax shall be laid." The States ratified the Income Tax Amendment in 1913. "The Congress shall have the power to lay and collect taxes on incomes, from whatever source derived." That was the first "unalienable right" we gave away. The tax rate was small and affected only a few citizens in very high income brackets. It required one tax return to be filed and paid on March 15 for income in the prior year. Very few expected it to grow into the monstrosity we know today. No one conceived that it would empower our government to effect the greatest redistribution of wealth in the history of the world.
The stock market crash in 1929 ushered in the Great Depression. Our people, in desperation, turned to President Franklin Roosevelt for help. The "rubber stamp" Congress passed scores of New Deal programs. They were declared unconstitutional by the Supreme Court which was under extreme political pressure. Finally, Justice Roberts joined the four dissenting Justices and the Supreme Court sustained the constitutionality of the "emergency" programs passed by Congress. It did so by interpreting the "general welfare" clause in Article I, Section 8 to authorize the expenditure of tax receipts to benefit unemployed citizens and beleaguered farmers. That second "unalienable right" was given away by our sacred Supreme Court, the ultimate guardian of our rights. Since that time increasingly larger groups of citizens and corporations have become dependent on the power of government to benefit and care for them. Our early history proved that the general welfare of everyone is improved by a government that encourages every citizen to enlarge the economic pie, not to fight over how a limited pie is to be divided.
The reasons why our beloved America is in deep trouble, become obvious. The Income Tax empowered our government to target the wealthy. The Supreme Court decisions in the 1930's authorized the redistribution of that wealth to those who would benefit by it. Those are the fundamental reasons for the unstoppable corruption that pervades our government, our politics and our society. We have become "The United Socialist States of America."
The overwhelming majority of voters falsely believe that corporations and the wealthy pay for all these social and corporate welfare programs. The politicians will give the people what they want to get reelected. The majority of voters do not object to higher taxes because they think that they are not paying them.
In 1919 we, the people voluntarily gave away another "unalienable right" when we ratified the Prohibition Amendment. History proved that it was an unwinnable war because it conflicted with an unalienable right. It was repealed in 1933.
The Controlled Substances Act of 1970 and other legislation prohibited addictive drugs, gambling and prostitution. All of these activities are protected by the Bill of Rights and do not infringe on the rights of others. Is it any wonder that all such laws are unenforceable? The exercise of any unalienable right that does not infringe on the rights of others demands that the citizen, not the taxpayer, be accountable for the consequences. That might sound "mean spirited," but it provides a powerful incentive to be and do the best that is in us. None of this implies that such activities cannot be regulated in some reasonable way.
The horrors and fears which followed September 11 have prompted us to enact the USA Patriot Act. Once again we relinquish a few more rights to government. We become dependent on government for the safety it promises but cannot deliver.
It is time that we comprehend the tyranny that is already upon us and, as free citizens, declare our individual independence from government and vote to take back those rights which we have let our politicians and courts take from us.
http://libertyforall.net/soapbox.html
"If cowardly and dishonorable men sometimes shoot unarmed men with army pistols or guns, the evil must be prevented by the penitentiary and gallows, and not by a general deprivation of a constitutional privilege." - Arkansas Supreme Court, 1878
by Clark Walter
The birth of this Nation signaled the dawn of a new day in the history of Mankind's struggle against the bondage of class distinctions and tyrants. We cannot today fully appreciate the tremendous impact of this event. Mankind had finally broken the shackles that had destined him to be a slave since the dawn of time. America would prove that equality of opportunity, coupled with the protection of our unalienable rights granted equally by our Creator, would inspire men and women to achieve a freedom that they, themselves, never dreamed was possible. Wave after wave of immigrants came to our shores thirsting for the chance to prove their worth and, in so doing, to earn their freedom and, incidentally, to build a new Nation. The practical idealism expressed in our Declaration of Independence was an inspiration and a clarion call to all the peoples of the world.
"We hold these truths to be self-evident, that all men are created equal, that they are endowed by their Creator with certain unalienable Rights, that among these are Life, Liberty and the Pursuit of Happiness."
These truths are self-evident because they are based on the long tradition of natural law which acknowledges that there is a "higher law" of right and wrong. The last five of the Ten Commandments are the foundation of our criminal law. It is this "higher law" from which we derive human law and against which we must evaluate all law. It is moral reasoning, not political will, which is the foundation of our government and the rationale for its existence. Our republic was nurtured by the high ideals and ambitions of a fiercely independent and religious people.
The Declaration of Independence says: "That to secure these Rights, Governments are instituted among Men, deriving their just Powers from the Consent of the Governed." They devised a government that would be strong enough to secure our rights, yet not so powerful as to be oppressive itself.
The Preamble of our Constitution states: "We the people of the United States, in order to form a more perfect Union, establish Justice, insure domestic Tranquillity, provide for the common defense, promote the general Welfare, and secure the Blessings of Liberty to ourselves and our Posterity, do ordain and establish this Constitution for the United States of America."
Article I, Section 8 states: "The Congress shall have the power to lay and collect Taxes, Duties, Imposts and Excises, to pay the debts and provide for the common Defense and the general welfare of the United States." It goes on to enumerate seventeen powers to execute that mandate. In Section 9 it withheld eight specifically enumerated powers.
These United States of America became an ideal. We were a living example that there was hope for the emancipation of all Mankind from the bondage of social status and tyrannical governments. We would prove that every person, regardless of race, creed or social status, can earn freedom by working to make this world a better place in which to live, while respecting those rights with which we are all endowed by our Creator. Many new governments adopted our Constitution which places upon government the responsibility to protect those rights.
Today we find ourselves dependent on a government which becomes more and more the master of our lives. Some people say that our Constitution is no longer relevant. They say that they are happy to pay taxes to defend America and to help the needy. To those we might ask: "Why, after 60 years, do all of our problems multiply and grow?" Today we have an uneasy sense that something is radically wrong in America. The corruption and criminal behavior of our fellow citizens in corporations, in civic, charitable and other organizations, in government agencies, and even in religious institutions are not acceptable. The cures for our problems seem to be worse than the disease. How and why has all of this happened?
In 1913, prior to our entering World War I, "war profiteers" were singled out as unpatriotic. Many people felt that their excessive profits should be shared with Uncle Sam to help pay for the war. Our sacred Bill of Rights stood in the way. "The right of the people to be secure in their persons, houses, papers and effects against unreasonable searchers and seizures, shall not be violated." Article I, Section 9 of the Constitution states: "No Capitation, or other direct, tax shall be laid." The States ratified the Income Tax Amendment in 1913. "The Congress shall have the power to lay and collect taxes on incomes, from whatever source derived." That was the first "unalienable right" we gave away. The tax rate was small and affected only a few citizens in very high income brackets. It required one tax return to be filed and paid on March 15 for income in the prior year. Very few expected it to grow into the monstrosity we know today. No one conceived that it would empower our government to effect the greatest redistribution of wealth in the history of the world.
The stock market crash in 1929 ushered in the Great Depression. Our people, in desperation, turned to President Franklin Roosevelt for help. The "rubber stamp" Congress passed scores of New Deal programs. They were declared unconstitutional by the Supreme Court which was under extreme political pressure. Finally, Justice Roberts joined the four dissenting Justices and the Supreme Court sustained the constitutionality of the "emergency" programs passed by Congress. It did so by interpreting the "general welfare" clause in Article I, Section 8 to authorize the expenditure of tax receipts to benefit unemployed citizens and beleaguered farmers. That second "unalienable right" was given away by our sacred Supreme Court, the ultimate guardian of our rights. Since that time increasingly larger groups of citizens and corporations have become dependent on the power of government to benefit and care for them. Our early history proved that the general welfare of everyone is improved by a government that encourages every citizen to enlarge the economic pie, not to fight over how a limited pie is to be divided.
The reasons why our beloved America is in deep trouble, become obvious. The Income Tax empowered our government to target the wealthy. The Supreme Court decisions in the 1930's authorized the redistribution of that wealth to those who would benefit by it. Those are the fundamental reasons for the unstoppable corruption that pervades our government, our politics and our society. We have become "The United Socialist States of America."
The overwhelming majority of voters falsely believe that corporations and the wealthy pay for all these social and corporate welfare programs. The politicians will give the people what they want to get reelected. The majority of voters do not object to higher taxes because they think that they are not paying them.
In 1919 we, the people voluntarily gave away another "unalienable right" when we ratified the Prohibition Amendment. History proved that it was an unwinnable war because it conflicted with an unalienable right. It was repealed in 1933.
The Controlled Substances Act of 1970 and other legislation prohibited addictive drugs, gambling and prostitution. All of these activities are protected by the Bill of Rights and do not infringe on the rights of others. Is it any wonder that all such laws are unenforceable? The exercise of any unalienable right that does not infringe on the rights of others demands that the citizen, not the taxpayer, be accountable for the consequences. That might sound "mean spirited," but it provides a powerful incentive to be and do the best that is in us. None of this implies that such activities cannot be regulated in some reasonable way.
The horrors and fears which followed September 11 have prompted us to enact the USA Patriot Act. Once again we relinquish a few more rights to government. We become dependent on government for the safety it promises but cannot deliver.
It is time that we comprehend the tyranny that is already upon us and, as free citizens, declare our individual independence from government and vote to take back those rights which we have let our politicians and courts take from us.
http://libertyforall.net/soapbox.html
"If cowardly and dishonorable men sometimes shoot unarmed men with army pistols or guns, the evil must be prevented by the penitentiary and gallows, and not by a general deprivation of a constitutional privilege." - Arkansas Supreme Court, 1878
Comments
Buying Trouble
by Erik Baard
July 24 - 30, 2002
(illustration: Marc Phares)
hey thought they were making routine purchases-the innocent, everyday pickups of charcoal and hummus, bleach and sandwich bags, that keep the modern household running. Regulars at a national grocery chain, these thousands and thousands of shoppers used the store's preferred-customer cards, in the process putting years of their lives on file. Perhaps they expected their records would be used by marketers trying to better target consumers. Instead, says the company's privacy consultant, the data was used by government agents hunting for potential terrorists.
The saga began with a misguided fit of patriotism mere weeks after the World Trade Center and Pentagon attacks, when a corporate employee handed over the records-almost literally, the grocery lists-to federal investigators from three agencies that had never even requested them. In a flash, the most quotidian of exchanges became fodder for the Patriot Act.
When the company's legal counsel discovered the breach, she turned for advice to Larry Ponemon, CEO of the consulting firm Privacy Council and a former business ethics professor at Babson College and SUNY. "I told her it's better to be transparent," Ponemon recalls. "Send a notice to loyalty cardholders telling them what happened. She agreed and presented that to the board but they said, 'No, we don't want to hand a smoking gun to litigators.' " The attorney, who has since resigned from the grocery chain, declined through Ponemon to be interviewed or to identify herself or her former employer. To this day, the customers haven't been informed.
"It wasn't a case of law enforcement being egregiously intrusive or an evil agency planting a bug or wiretap. It was a marketing person saying, 'Maybe this will help you catch a bad guy,' " Ponemon says.
As John Ashcroft's Citizens Corps spy program prepares for its debut next month, it seems scores of American companies have already become willing snitches. A few months ago, the Privacy Council surveyed executives from 22 companies in the travel industry-not just airlines but hotels, car rental services, and travel agencies-and found that 64 percent of respondents had turned over information to investigators and 59 percent had lowered their resistance to such demands. In that sampling, conducted with The Boston Globe, half of the businesses said they hadn't decided if they'd inform customers of the change, and more than a third said outright that they wouldn't. Only three said they would go public about the level of their cooperation with law enforcement.
The final destination of all that data scares Ponemon and other civil libertarians, defenders of the Fourth Amendment prohibition on unreasonable search and seizure. Ponemon, for one, suggests federal authorities are plugging the information into algorithms, using the complex formulas to create a picture of general-population trends that can be contrasted with the lifestyles of known terrorists. If your habits match, expect further scrutiny at the least.
"I can't reveal my source, but a federal agency involved in espionage actually did a rating system of almost every citizen in this country," Ponemon claims. "It was based on all sorts of information-public sources, private sources. If people are not opted in"-meaning they haven't chosen to participate-"one can generally assume that information was gathered through an illegal system."
After crunching those numbers through the algorithm, he says, its creators fed in the files of the 9-11 terrorists as a test. "The model showed 89.7 percent accuracy 'predicting' these people from rest of population," Ponemon reports.
Oddly enough, "one of the factors was if you were a person who frequently ordered pizza and paid with a credit card," Ponemon says, describing the buying habits of a nation of college students. "Sometimes data leads to an empirical inference when you add it to other variables. Whether this one is relevant or completely spurious remains to be seen, but those kinds of weird things happen with data."
The thirst for consumer records is bipartisan. In April, Bill Clinton told the BBC that when it comes to fighting terrorism, "more than 95 percent of the people that are in the United States at any given time are in the computers of companies that mail junk mail, and you can look for patterns there."
Katherine Albrecht, a crusader against grocery loyalty cards and invasive marketing, notes in a paper to be published in the Denver Law Review, "Virginia Congressmen Jim Moran (D-VA) and Tom Davis (R-VA) recently introduced legislation that would require all states' driver's licenses and ID cards to contain an embedded computer chip capable of accepting 'data or software written to the license or card by non-governmental devices.' " The mandatory "smart chips" would carry bank and debit card data so that citizens could use their ID cards "for a variety of commercial applications." Even library records, shopping coupons, and health records could be stored on the chips.
Adding to this vision of technological dystopia, companies are already developing cameras and other scanners that can seamlessly trace individuals as they wander through stores, going so far as to zoom in on their faces should they linger over an item, to provide retailers with ever more data.
The problem is that, as with the link between take-out pizza and terrorism, statistics don't always prove cause and effect. Mathematician Karen Kafadar of the University of Colorado at Denver explains that such a finding is "a proxy. It just happened to have something that correlated. There's actually something else going on but it's an indicator, like drinking beer and lung cancer might be. Beer doesn't cause lung cancer, but people drinking a lot of beer might also be smoking."
Ponemon is more concerned about process than the data itself. "Total privacy does shelter bad guys, there's no question about that. But transparency is also good," he argues. "There should be some labeling or notice." In theory, consumers and investors could punish offending companies by channeling their money elsewhere. Without honest managers, though, the free market's self-correcting mechanism never gets a chance to kick in.
Librarians have filled their listservs with e-mails sharing strategies for resisting law enforcement attempts to grab hold of their users' book lists. But the corporate world doesn't foster that kind of purist culture. When the Federal Bureau of Investigation came knocking for the names of scuba divers this spring, the Professional Association of Diving Instructors forked over a roll of more than 2 million certified divers without so much as being served a subpoena.
The feds were acting on no specific threat, just a hunch that someone might attack that way. And again, these data dumps are just attempts to do good. Would Attorney General John Ashcroft's new TIPS campaign-the Terrorism Information and Prevention System-encourage people like the mole at the grocery store chain to spill info into the tanks of unethical investigators?
The Department of Justice, which seeks informants in utility, cable, and other such industries operating in communities, denies that it will cultivate sources placed in data-mining operations. "This makes TIPS sound so much more sophisticated than it's going to be," says spokesperson Charles Miller. "This is still in development but it's nothing more than something to make people more aware of what's going on around them, and most people do that now anyway."
Likewise, both the Federal Bureau of Investigations and the Central Intelligence Agency denied roles in any sweeping algorithm to measure citizens' potential terrorist leanings. If anything, the FBI has recently been taken to task for being a tin-cans-and-string Luddite organization. But the FBI is a client of the consumer data aggregator ChoicePoint. And a U.S. official tells the Voice, "Can I categorically deny anybody in government is doing it? No."
An admission that the government is combing through purchase records certainly would help explain why, according to the Naples Daily News, federal agents reviewed the shopper-card transactions of hijacker Mohammed Atta's crew to create a profile of ethnic tastes and terrorist supermarket-shopping preferences.
Algorithms are already used to search for things as diverse as credit card fraud and ideal college applicants. Since 1998, airline ticket buyers have been sifted at the reservations desk by the Computer Assisted Passenger Prescreening System, or CAPPS, a net championed by Al Gore and set to expand dramatically. The group overseeing the algorithm, the Transportation Security Administration, won't comment on what new data might be added to create CAPPS 2.
"At a conceptual level, the work that these algorithms do is not much different than the work that a detective undertakes in assessing whether an individual is a suspect in a crime," explains Christy Joiner-Congleton, CEO of Stone Analytics, a leading developer of such programs. "Good algorithms sort through mountains of outcomes and possible contributing factors and identify relationships for very rare events, like terrorism. The more exotic the outcome, the more data is needed to discover it, and the more sophisticated the algorithm must be to discover it."
Academic mathematicians and statisticians who design algorithms have also called for broader databases. Among them are Kafadar and Max D. Morris of Iowa State University, co-authors of a new paper titled "Data-Based Detection of Potential Terrorist Attacks on Airplanes." They note that "[a]fter the fact, some common elements of the suspected terrorists are obvious: None were U.S. citizens, all had lived in the U.S. for some period of time, all had connections to a particular foreign country, all had purchased one-way tickets at the gate with cash. The statistical odds that five out of 80 revenue passengers (in the case of one of the four hijacked flights on September 11) fit this profile might, by itself, be unusual enough to warrant concern."
Racial profiling finds quasi-acceptance in the hunt for terrorists, as it does in the drug war or the pursuit of serial killers, who tend to be middle-aged white men. But Kafadar and Morris argue that the "historical data must be relevant to a specific flight. For example, a United flight leaving San Francisco for Seoul, Korea, could be expected to carry a much larger fraction of Asian passengers than one might see on a flight from, say, Des Moines to Denver," the authors write. A trip like Atta's, Kafadar tells the Voice, "wasn't a flight coming from Saudi Arabia. There were a disproportionately high number of Arabic names given about 80 people to choose from."
But the algorithm method didn't fail on 9-11-the human response did. When the screening program spotted something unusual about at least one of the flights, the people in charge elected only to reinspect the luggage. According to The Wall Street Journal, CAPPS tagged hijackers Nawaf Alhazmi and Khalid Al-Midhar because they'd reserved their tickets by credit card, but paid in cash. The right-wing National Review slammed CAPPS for failing to include race, religion, and national origin in its calculations or to tie the system into manual searches of passengers, and not just baggage.
MIT mathematician David R. Karger says harassing individuals is foolhardy, but so is refusing to consider sensitive demographics. "This is just making your predictive capability worse," he writes in an e-mail interview. "Much more appropriate is to use the best data you've got, but to remember that probability doesn't mean certainty."
Joiner-Congleton writes, "Fundamentally, the algorithms themselves (if created in a technically correct fashion) are not the thing to fear. Rather, as in life, the things to fear are the conclusions drawn and the subsequent actions taken. Nevertheless, drawing conclusions from data is a necessary thing in life. People must do this to survive. Imagine the havoc that would be wreaked on the roads of America if we ignored the sounding of a horn on the freeway. Horn-blowing is usually associated with a dangerous event. We ignore it at our peril."
She even conceives of developing algorithms so advanced that society might intervene, to get people liable to be recruited into cells back on track before they can be seduced by elements like Al Qaeda. "There is a possibility that with sufficient information about known terrorists we could evolve to the point where we could spot terrorists in the making," she argues. "We believe that individuals can be at risk of becoming drug addicts, or joining gangs, or having affairs, or any number of things at certain times and under certain conditions in their lives. . . . Thorough and continued algorithmic investigation of terrorist behavior is very likely to shed light on their origins, and possibly lead to proactive efforts."
But there's a truly slippery slope here. We live in a nation that for months has held at least 700 people-and possibly hundreds more-incommunicado, with no more solid connection to terrorism than that they were born in Middle Eastern countries.
Privacy may seem like a luxury in a nation at war, but that moral concept lies at the heart of constitutionally guaranteed liberties. That's why so many people are willing to fight for it. A lawsuit filed by John Gilmore, an early employee of Sun Microsystems, aims to restore the anonymity central to the freedom to travel in America. He names Ashcroft, FBI director Robert Mueller, and security czar Tom Ridge as defendants, among other officials, along with two airlines. Gilmore wants to prevent security at airports from demanding identification from him, or subjecting him to arduous and invasive searches when he refuses to provide a photo ID. The emphasis, he says, should be on strengthening cockpits and developing "fly by wire" systems to automatically land planes under threat. But our terrorism fears extend well past airlines to water-tainting, dirty bombs, suicide bombers, conventional bombing, or even simply opening fire with an assault weapon in Grand Central Station-the kinds of attacks that are difficult to prevent in an open society.
For now, we rely on tools like algorithms, and algorithms make mistakes. Albrecht notes that in a three-month test period, the Department of Defense investigated 345 employees after a program falsely fingered them for abusing shopping privileges. In another case, an elderly woman was repeatedly stopped and questioned in airports because her name matched that of a young man already in prison for murder-a glitch that may indicate CAPPS or another algorithm is using data illegally, for basic criminal investigation and not anti-terrorism. Further, supermarket records have been seized by Drug Enforcement Agency investigators looking for purchases of small plastic baggies, often used in the drug trade, Albrecht observes.
"I am not a number!" shouted Patrick McGoohan, star of the British TV show The Prisoner, when he rejected life in an idyllic village where he was held and constantly monitored. "I am a free man." Now that this nation is at war with terror, perhaps you'll remain free as long as your "Potential Terrorist Quotient" remains low enough.
http://www.villagevoice.com/issues/0230/baard.php
Read more of the Voice's coverage of the attack on civil liberties in post-September 11 America.
"If cowardly and dishonorable men sometimes shoot unarmed men with army pistols or guns, the evil must be prevented by the penitentiary and gallows, and not by a general deprivation of a constitutional privilege." - Arkansas Supreme Court, 1878
By Clint Parker
The Asheville Tribune
"We get an administrative search warrant, and then they have to let us in."
A move by two area municipalities to inspect the inside of residents' homes has opened Constitutional questions about how much authority local governments have to enforce zoning and building codes.
The town of Montreat, NC is considering "periodic safety inspections" of "all homes" along with a long list of other requirements for residences.
At the same time, the Hickory Daily Record reported, the city of Hickory, NC will soon be sending inspectors to more than 300 homes and businesses with broken windows, ripped awnings, battered fences or other maintenance code violations
The inspections come as a result of a land-use plan adopted by Hickory in May 2001 which included the new rules on property maintenance.
City officials in Hickory held off on any immediate crack down on violations to give homeowners a chance to make repairs. A citywide survey began last August using a college student intern from Lenoir-Rhyne College who drove street by street through Hickory and noted potential problems. The survey was completed earlier this month.
Armin Wallner, Hickory's building inspections director, said the ordinance mainly covers the exterior of the home. "If your buffer area died . . . we'd say you've got to fix those buffers. Or if your sidewalk was breaking up or if your driveway was breaking up or your fences are looking in disrepair or the outside of your building needs a little paint or you've got broken windows, we would be notifying owners of those conditions and asking if they would voluntarily fix those," said Wallner.
While the ordinance deals mainly with outside appearances, Wallner said that they have had the right since the 1960s to inspect the inside of the home if they had a petition that was signed by five neighbors.
"The only time we go in the inside of a house is when we get a petition filed by five residences," said Wallner. According to Wallner, city building inspectors would then inspect the inside of the house in question.
Asked if a warrant was needed by the inspectors to enter the house, Wallner first said, "No. We've been doing that since the 1960s." Asked what would happen if a homeowner refused to allow inspectors into the house without a warrant, Wallner replied, "We get an administrative search warrant. Then they have to let us in, but that never happens."
Wallner used a broken window as an example of the new property maintenance ordinance. "If we see a broken window, we're going send you a letter asking you to fix it."
Fines for violations are $50 per day until the problem is fixed. Wallner added that "at some point" if the problem were not fixed, a violator would have to go in to see a magistrate.
Asked what would happen if a person didn't have the money to fix something such as an elderly woman on a fixed income. "Well, we have neighborhood associations. So we would probably go to the neighborhood association and see if there's any help." Asked what would happen if there were no help available from the association, Wallner said, "Then we would ask then to get in touch with... We would do what we could, but at some point someone's got to fix the broken window."
After a pause, Wallner said, "You'll always have those situations that are tough, you know, and we realize that too." He then sighed and said, "Ordinances were made to be followed. They're not all good." He then immediately corrected himself and said, "I mean they're not all bad."
In Montreat, the planning and zoning board is conducting three hearings on new regulations the board wants to impose on homeowners. The list of regulations includes:
* Mandating that "every homeowner be required to provide an off-street parking space for every bedroom in the house."
* "...periodic safety inspections of all [privately owned] homes by the Black Mountain Fire Dept., especially those which are rented."
* Requiring all "property owners who rent housing to obtain a rental privilege license from the Town of Montreat, and that provision of such license be worked out..."
* Requiring the use of only natural materials for homes and structures, to include "wood, stone and natural materials."
* Regulating what "proper landscaping" on private property would be; to include what type of bushes, trees and plants are appropriate in a personal flower bed or private garden.
* Using the Land of Sky Regional Council as a resource to help develop "alternatives to paved parking... to minimize storm water run-off."
* Limit the amount of vehicles traveling through the valley "thus decreasing the dangers of air pollution damage to humans, animals and plants."
* Incorporating shuttle buses to run people into Montreat from external parking facilities.
* Regulating noise from automobiles, summer conferences and heating and cooling equipment.
* Obtaining "a minimum of 3,000 acres (to be preserved) in order to provide a large enough un-fragmented preserve to maintain biodiversity and to off diversity of wilderness recreational experiences."
* Conducting a "full inventory of plant and animal species" in Montreat to see if there are any species that would need to be titled as "threatened" or "endangered" within the "Montreat Wilderness" area.
* Placing "platted lots which are adjacent to the Montreat Wilderness boundary, into the Montreat Wilderness, thus adding additional wilderness acreage closer and more accessible."
* Closing any additional hiking trails or hiking shelters within the Montreat Wilderness "in order to protect and preserve the wilderness environment from user impact."
* Requiring any "large groups" holding public events to "provide a plan for traffic control and parking and demonstrate means of implementation to the Town for approval."
Montreat Town Administrator Pam Snypes said she doesn't know exactly what the zoning board is proposing because she is not involved in the meetings. "That's not anything I attend, and I'm not sure what their agenda is for each meeting," said Snypes.
Asked who could answer some questions on the new regulations, Snypes told the Tribune to call the Mayor of Montreat, Letta Jean Taylor. Asked if she was on the zoning board, Snypes said, "No." Asked if it would be better to call someone on the zoning board, Snypes replied, "Well, I think first of all, you need to speak, like I said, with the mayor. According to our personnel policy, when it's a media contact it's usually the mayor or the town administrator or the department head who speaks with the media."
The Tribune tried to reach Mayor Taylor, but she did not return our call by deadline.
Anna Cannon, a Montreat resident, has been to one of the meetings and plans to attend the other two. She told the Tribune after hearing the proposals she got up at the first meeting and said, "I don't understand why you all are not outraged at some of those proposals because they're draconian in their nature and they're unconstitutional."
Cannon said the problem the town is trying to fix is not with the homeowners, but with the conferees at Montreat College, "but they want to punish the homeowners... It's the conference that brings in the majority of people."
Cannon said that the town already tries to manage homeowners down to the most minute detail explaining that when she needed to repair the roof on her 100-year-old home the construction company had to obtain a $30 permit from the town and approve the plans for repair. The approval took two weeks. During which time it rained. The rain caused water damage to the inside of her home.
When asked why she had to get approval from the town to fix her roof, Cannon said she was told that the town has to maintain the "character" of the community. However, Cannon explained, the town approved a variance for an Asheville doctor who moved to Montreat and asked for a 2000 square foot addition to the home he bought. "The additions came within inches of the property line," said Cannon.
It seems no town is immune to the micro-management from town and city.
Hendersonville has ordinances requiring that "every habitable room shall have at least one window or skylight facing directly toward to the outdoors," "all exterior openable windows and doors" will have screens, and even that hot water heaters have "a temperature of not less than 120 degrees."
Asheville is noted for its strict zoning regulations, even Hickory's building inspections director Wallner made mention of it in his conversation with the Tribune. Asked if he was envious of the Asheville regulations, Wallner said, "No, too much work."
http://www.ashevilletribune.com/local_gov__invade_homes.htm
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