Kidnappings and Constitutional Rights 7.24.26

This past July 4^th marked the United States’s 250^th birthday as marked by the signing of the Declaration of Independence. I spent our country’s 250^th birthday in a country where personal liberties and free speech are in jeopardy. But like most people, I have mistakenly thought of our constitution as a document with “positive rights” – rights that the government actively provides to us. Instead, most of the rights contained in the Constitution are “negative rights” – rights to protect its citizens by keeping the government out of our lives.  In fact, if you look at the first 10 amendments to the Constitution, known as The Bill of Rights, all but the 5^th amendment (due process) are negative rights.  And this creates interpretations that may seem at odds with the protections that we think we might have. And this has major repercussions on what we might consider to be socioeconomic rights like the right to education, healthcare, housing or welfare – unlike many “modern constitutions” of other countries. And this is illustrated repeatedly in court cases heard by the Supreme Court, including a case involving a father kidnapping his own children.

Unfortunately, as a child, I was kidnapped by my own father. In 1970, I found myself as a nine-year old in a roadside motel room somewhere outside of Richmond unsupervised with my three younger siblings.  Even at that age, I knew our father had done something very wrong. The actual definition of a kidnapping is to take someone away illegally by force, usually for a ransom.  Evidently in domestic violence situations, it is very common for the perpetrator to kidnap the children as a bargaining chip to get the abused spouse to return home. And that is what our dad had done.  A fair question to ask is, “Do the police have an obligation to protect our mother and her children, especially with a restraining order?”

Although brilliant, the United States Constitution is also murky. This has created two schools of thought on how to interpret our Constitution.  “Constitutional Originalists” believe that the constitution should be interpreted according to its original meaning – either what the framers intended or what the words would have meant to ordinary people at the time it was written.  So, even “Originalists” differ on what that term means. Regardless, most originalists believe that the constitution’s meaning should be fixed and not something that evolves with society. If changes are made, they should come through the amendment process through Congress and the states and not from judicial interpretation. And this may be an oversimplification, but Originalists tend to be very libertarian.

The “Living Constitution” view holds that the Constitution’s meaning is not fixed as it was written – it instead evolves over time to meet changing social, political and technological circumstances.  They believe that the judiciary should interpret the words in the context of contemporary values and current understanding.  For example, society’s view on race, gender, technology, and privacy will change – and it has. And given the high bar of amendments, the judiciary has an obligation to interpret the constitution to reflect current societal norms. Again, an oversimplification, people who believe in a “Living Constitution” lean on the liberal side and believe the Constitution should contain more positive rights. And believe in an active judiciary to interpret the Constitution in that manner. However, even with positive amendments added (14^th,15^th, 19^th, 24^th, 26^th), 21 of the 27 amendments in the modern constitution are negative.

Going back to protections that we may want our government to provide, a recent news article reported that due to years of declining federal funding, agencies across Virginia that shelter and support survivors of domestic and sexual violence are carrying counseling waitlists of up to 100 people, reducing emergency housing and, in some cases, turning survivors away.  I hope we do not return to the 1960’s when very few agencies that sheltered and supported survivors of domestic violence existed. My mom could have greatly benefited from one of the many modern shelters that do exist today.  It has become clear that our Federal Government is not required provide this safety net.

Dad often abused mom and he often abused us.  Mom wanted to leave.  But her situation was difficult.  She had no car and did not know how to drive.  So, she had no transportation. She had an eighth-grade education with no skills. So, she had no money and no way to make money.   Her mother had, for the most part, disowned her when she decided to leave Louisa at the age of 17 impregnated by my father. So, she had no one to turn to.  Women’s shelters often report that people who have come to shelters have told them they would have killed themselves if it wasn’t for the shelter. They can be that desperate, that empty of hope.

How long do you take the abuse to make sure your four children have food and a roof over their heads? And how long do you watch them be abused? I think Mom did attempt or threaten to leave several times. But Mom would return home when Dad promised to change.  And he would be better for a while.  And I do remember this cycle. But then he would go on one of his drinking sprees, and all hell would break lose.  So, when Mom finally realized that he was not going to change, she somehow got her courage up and left with the intention of not going back.

With the help of her sisters, Mom developed a plan. She learned that she could apply for welfare. And one of her sisters, Nancy, offered to share her home – the wooden shack next to grandma’s house – until mom started receiving welfare checks and could find a place to rent. And mom’s sister-in-law, her brother Billy’s wife, offered to provide transportation.

The way she left was very covert. She never shared her plan with any of her children for obvious reasons. So, one day she showed up at our elementary school, reported to the principal’s office and asked to take us out of school early. So, a note was sent to each of our classes asking us to report to the principal’s office.  None of us had any idea as to why we were being asked to report.  But there was mom waiting for us.  And when we walked to the front of the school, there was mom’s sister-in-law in her car waiting to drive us away. It was April. I would never see that elementary school or my early childhood home again.

As I go back to that experience in the hotel 55 years ago, there is so much that I do not remember.  How did dad convince us to go with him? According to my brother Keith, Dad showed up at the three-room wooden shack that we were sharing with my aunt Nancy and her two children and offered to take us for ice-cream. Mom and my aunt Nancy were away. So, we left with him. And then he took us to a motel room and left us there.  He told us to remain there and that he would be back soon. He threatened us with a belt whipping if we left the room.  It would be hours before he returned.  My brother Keith asserts that we were there for two nights. Can you imagine four energetic young children being couped up in a motel room for 48 hours?

Normal kids are not going to stay couped on in a hotel room.  They are going to explore. We did not stay in that hotel room. We escaped, roamed around and finally ended up in the pool to play.  We had no swimsuits. We may have worn our underwear.  Who knows? One thing was for certain – none of us knew how to swim.  My brother Keith recalls the pool incident because he remembers us daring each other to hold onto the side of the pool and make our way around the entire pool – even the deep end. So, we were lucky that none of us drowned.

When dad called mom to tell her he had the kids, she did a very daring and risky thing. She called Dad’s bluff and told him he could keep the kids.  And this is how we ended up spending 24 to 48 hours in a roadside motel room by ourselves.  

I think the reason dad finally took us back to Louisa and to our mom was to keep the authorities from intervening. Someone from the motel realized we had been left by ourselves. When dad returned, the motel staff informed him that they would call the cops if he left us alone again. Obviously, our father wanted nothing to do with us, and he wanted nothing to do with the authorities. So, our mom’s bluff worked.  He returned us.  But many times, in domestic violence situations, things turn our very badly. 

After this incident, Mom got a restraining order.  Dad violated that order a few times. In one instance when dad showed up, mom told us that when he knocked on the door, we were to escape out the back door and run as fast as we could across the dirt road to our grandmother’s house. When we arrived at grandma’s house someone was sent back  across the road to fetch our mom.  She had been hit in the face.  When we finally returned home, we found that Dad had taken every single photo and personal keepsake and burned them in the wood stove.  That is why I have so few photos from my childhood. After that incident, we were afraid that he would show up again – at any time. A question – where were the County Sherrif’s deputies during all of this?

Unfortunately, restraining orders like the one my mom had against my dad do not always work – with devastating consequences. This is illustrated by the Castle Rock versus Gonzales case that was argued in front of the Supreme Court in 2005 when the court ruled that a woman could not sue a town for failing to enforce a restraining order against her estranged husband. Jessica Gonzales, like my mom, had left her husband due to domestic violence. She even went so far as to file a restraining order against her estranged husband.

In the Supreme Court case, Jessica called the police multiple times over several hours, telling them he had taken their three daughters in violation of the order. Police did not act promptly. In fact, they told her to call back if he had not brought the daughters back by 10 p.m. She did. She finally went to the police station at 1:00 a.m. and filed a complaint in person.  She went home.  Her husband later showed up at the police station at 3:00 a.m. with a firearm and began shooting and was shot dead by the police.  They went out to his truck and found the bodies of the three girls.  He had murdered all three girls before going into the police station.

Although the Chief Justice at the time described the case as tragic, the Court ruled 7-2 that Gonzales did not have a constitutionally protected property interest in police enforcement of the restraining order, so no due process claim could proceed against the town. Here was their reasoning.  The Court said Colorado’s mandatory-arrest statute (which said police “shall” enforce restraining orders) didn’t automatically create an individual entitlement to enforcement, since police have traditionally exercised discretion in whether and how to enforce laws. So, even mandatory-sounding statutory language doesn’t necessarily eliminate that discretion.  They went on to say that for something to count as a constitutionally protected “property” interest, it must be a definite, enforceable claim — the Court found the benefit of police enforcement here too indirect and uncertain to qualify. So, even with a restraining order, my mom, my siblings and I were not necessarily protected by the law or the constitution. Things could have turned out very differently for us during that kidnapping.

Positive rights in the Constitution are rights that the government must provide to its citizens.  Negative rights are rights that the government cannot take away. Countries like Germany and South Africa have constitutions that are full of positive rights because those constitutions were created after failed governments. The United States, on the other hand, is full of negative rights. This is probably true because our constitution is the oldest active constitution – created at a time when people very much distrusted monarchies and government. So, it was created from a libertarian point of view with an eye of keeping the government out of peoples’ lives – full of negative rights. As a result, it is not full of entitlements.

Constitutions created in the 20th century contain positive rights and active protections making sure that the government is “doing its job.” Some of these constitutions says things like their country will guarantee a clean planet.  Whether these constitutions are effective is open for debate, but they have active positive rights, things that the government is supposed to do. Our constitution focuses on things the government cannot take away. So, our constitution is murky.  But it is also brilliant. And the ninth amendment is one of the components that makes it a brilliant, living, breathing document. And this is why I agree with the “Living Constitution” viewpoint.

Amendment 9 states that the enumeration in the Constitution of certain rights shall not be construed to deny or disparage others retained by the people. Basically, this amendment talks about unenumerated rights. It says just because a right isn’t listed in the Constitution, it doesn’t mean you don’t have that right.  There was no way for the original framers of the constitution to put down every single right we have.  Our Constitution doesn’t tell you all the rights that you have because it doesn’t know. And that makes our Constitution, in some ways, a very humble document.  It does not know.

So, it is left to us to figure these rights out in the context of our times. And guess what, there will always be disagreement on what those rights are.  Are certain asserted protections “rights” or are they “unnecessary and costly entitlements”? As a product of a domestic abuse household, my knee-jerk reaction to the Castlerock-Gonzales Case was one of shock and disbelief. The police should have acted and protected Jessica Gozales and her children. But as I thought more about this case, I realized that the Supreme Court had to be very careful about precedent. If it had ruled in favor of Gonzales, every municipality and police department would be open to hundreds of frivolous lawsuits that had no merit. You can bet that lots of restraining orders would have been filed the next day at the urging of unprincipled lawyers.

On its face, many people argue that this case reversed rights and protections for abused women. And maybe they are right. In my mom’s situation, I would have loved having a county Sheriff’s Deputy stand duty so that I would not have to fear my father coming back and doing something awful to us. But that would have been very costly and impractical. Do I believe that the police in Castlerock should have used different judgement – absolutely.  They made a mistake in not intervening.

Nine very smart justices heard the case. And the fact that seven of the nine sided with Castlerock makes me feel a little better about the court’s decision.  However, I do hope that our country always makes it a priority to protect its children.  I am glad we now have women’s shelters in greater numbers.  I am sad that we are losing funding for them. As a strong economic libertarian and a moderate social libertarian, I do believe that societies should be measured by how much economic opportunity they give citizens and by how they much they protect their most vulnerable citizens. Maybe someday, when a similar case is heard again, there might be a different outcome because our constitution is a living and changing document.  And I believe that is how James Madison wanted it to be.