Hasan Piker's Detention
Secure civil rights need a democratic foundation. By Luke Pickrell
Hasan Piker is a popular online streamer and left-wing commentator. On May 11, Piker was detained by U.S. Customs and Border Protection at Chicago’s O’Hare Airport and asked detailed questions about his views on Donald Trump, Israel, Houthi rebels, Hamas, and his bans from Twitch. Piker’s detention and questioning were perfectly legal. The Supreme Court has ruled multiple times that searches and seizures without a warrant or probable cause are permitted within 100 miles of any U.S. border, which covers over two-thirds of the U.S. population.
Piker is only the latest person targeted by the state. Last month, Amir Makled, a Lebanese-American lawyer representing university protestors charged with felonies, was stopped at the Detroit Metro Airport. His interrogator “made clear he knew who [Makled] was and what cases he was working on, and immediately asked to access his phone, which potentially would have violated attorney-client privilege. Over two hours, the agents never explained why they had stopped him or what they were looking for, and eventually released him.” In March, Rasha Alawieh, a Lebanese doctor and assistant professor at Brown, was detained at Logan Airport in Boston, stripped of her H-1B visa, and deported in violation of a district judge’s order suspending her removal. Other detention stories include a Florida TikToker, a real estate lawyer, and, most recently, Newark mayor Ras Baraka.
Benjamin Y. Fong argues in Jacobin that the Fourth Amendment has “effectively been optional for decades,” and that the Bill of Rights is being “shredded” inside and outside of the border exclusion zone. Examples abound, including Illinois v. Gates (police can base warrants on anonymous tips), United States v. Leon (evidence seized under tainted warrants is admissible in some situations), and Vega v. Tekoh (people denied Miranda warnings can't sue the officer who violated their rights, even when found innocent).
Fong calls for a “comprehensive restoration of the Bill of Rights” to remedy the situation and pave the way for a second Bill of Rights along the lines of FDR's 1944 proposal. “The rights and freedoms of the individual are still powerful ideas that resonate with Americans across the political spectrum,” and “reclaiming those rights presents an opportunity to rally the most basic of democratic impulses.”
At least two questions remain unanswered by Fong’s proposal for a legislative solution to our problems. The first is what force will “rally the most basic of democratic impulses” and lead the charge for a new Bill of Rights. Not the Democratic Party, which, as Fong admits, is just as “tough on crime” as the Republicans. Like Fong, one can dream of a politician running on “Restoring the Bill of Rights,” but given our two-party monopoly, the chances are slim to none. After all, even progressive Democrats like Bernie Sanders won’t touch the Constitution.
The second question is how any change to the Bill of Rights could navigate the Constitution’s minority checks. Rights and freedoms might be popular, but popularity means nothing to the gerrymandered House, the malapportioned Senate, the quasi-monarchical executive, the unelected federal judicial branch, or the ineffective Article V clause. Fong recognizes that civil liberties and rights are under attack, but fails to understand that there’s no constitutional resolution.
The current administration is attacking many of our fundamental rights, such as freedom of speech, due process, and birthright citizenship. These rights possess inherent value, independent of their constitutional inclusion. The Bill of Rights only exists because masses of people made demands on the framers, fought and died to abolish slavery, and struggled to keep Reconstruction afloat.
The only way to firmly secure our rights is through establishing a political system governed by majority rule — a process that can only begin through a constituent assembly. We need a new political foundation: a democratic constitution built around a unicameral legislature elected through universal and equal suffrage, and a judiciary accountable to the people. Without these fundamental political transformations, our rights will remain insecure.