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Tuesday, June 22, 2004

Hiibel Decision

Eugene Volokh has a number of informative posts on the Hiibel Decision, here, here, and here. The Volokh Conspiracy is always a great place to get information and perspective on Supreme Court decisions and I highly recommend it for that (and other) purposes. I am totally unqualified to either criticize or add to any of his comments from a legal perspective. The question of whether the government should have the power to demand a person’s identity is an interesting one though. Giving the government that power is clearly an invasion of privacy and a lowering of individual freedom. Of course that is true of just about any power we give the government. In my view government is at its most basic is an attempt at a monopoly on the use of violence. This premises that violence is good (in certain circumstances) but not something that should be used freely by everyone. This monopoly power is obviously dangerous if abused (the second amendment is designed to ensure that the government does not have a monopoly on the ability to use violence, only on the right to use violence.) On the other hand, when used correctly this power gives us great benefits. Indeed almost no one thinks that we would be better off without. In an attempt to maximize the benefits of this monopoly power and limit the abuses our constitution and legal tradition puts limits on the powers on government in general and on certain government institutions in specific. So, given all of the above, does allowing government the power to demand identity provide more benefits or does it open the way for more abuses. Like all government powers this will be some of each and the question has to be judged upon which weighs more, not whether one or the other is real. It seems obvious that in a general sense this is a power that government should have. Identity is a property of an individual whose very purpose is to allow others to distinguish between that individual and someone else. In this sense it is a public, not a private thing. Further, nearly every benefit that we can derive from government requires that government obtain information on identity at different times. As to the more specific question in Hiibel, as to if the police should have this power when making a stop based upon reasonable suspicion of involvement in a criminal activity I lean toward the idea that they should.


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