apparently hilzoy has never read Rizzo v. Goode

The Washington Monthly

If there is a right to privacy in the US Constitution, then protecting it is a federal issue. It has to be. You just cannot say that there is a right to privacy in the US Constitution, but that what to do about that fact should be up to the states. Not if you understand what the Constitution is, and how our system of government works.

In which Rehnquist opined that, should there be a right to protection from unconstitutional treatment by the police (specifically, the policy that the Philadelphia police department was alleged to have at the time of randomly pulling black and hispanic men off the street and beating the crap out of them) it was not the federal government’s place to enforce it. (I once had the amusing yet sad experience of watching Laurence Tribe teach this case to a bunch of law students; because it was and is the law of the land, Tribe was unable to say, “This is a really really bad decision, and the reasoning in it is crap.” Instead he had to tiptoe around the fact that a majority of justices had signed onto the idea that telling police officers not to randomly beat up members of minorities they didn’t like was Somebody Else’s Problem.)

So in a sense Palin has a very good sense of how our system of government works, at least under a republican supreme court: everyone agrees that certain rights exist, and then they make it impossible for people whose rights are violated to enforce them. (See, more recently, Lily Ledbetter.)

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