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Loitering fabricated into 'right' by justices

The Supreme Court in recent years regularly has veered into making a parody of itself, divining great constitutional questions within the most benign of laws.

For years it micromanaged the schools of Kansas City, and within recent memory it has deceed the degree of permissible nudity at strip joints, the selection of carols at public school Christmas &emdash; oops, Solstice Holiday &emdash; assemblies, and now the regulation of loitering. This isn't a court. It is a Supreme City Council.

Several years ago, in a fit of activism, the Supremes deemed unconstitutional old-fashioned loitering ordinances that had been used since the nation's founding to disperse bad actors. With drug trafficking flourishing, various cities have attempted to craft ordinances that will pass muster with the Supreme City Council. In 1992, the city of Chicago adopted what many scholars then considered to be a model ordinance, one that allowed police to rely on, of all things, their years of experience in spotting gang members and drug dealers to determine whether to scatter a loitering group of toughs.

Until 1995, Chicago police used the ordinance with great effect, ordering the dispersal of an estimated total of 89,000 people and arresting another 42,000 when they refused to move. Thn some young toughs found themselves an ACLU lawyer to fight the ordinance, which this week the Supreme City Council ruled invalid.

Worse yet, Justices John Paul Stevens, Ruth Bader Ginsberg and David Souter (President George Bush's infliction upon the court) discovered a heretofore unknown "right" to loiter within the 14th Amendment. It must be in the emanations and penumbras, because you won't find "loiter" in the Constitution.

Justices Sandra Day O'Connor and Stephen Breyer helpfully suggested the framework of a new ordinance, one that would be aimed at those whose purpose is "to establish control over identifiable areas, to intimidate others from entering those areas, or to conceal illegal activities."

But that is what Chicago attempted to do, and it relied on the professionalism of its policemen to exercise some judgment. Apparently the Supreme City Council will allow no such thing. Short of loiterers posting signs that say, "Join Gang Here," or "Drugs, $20" no common-sense ordinance will meet the Supremes' muster.

Justice Clarence Thomas got it exactly right in his dissent: "Today the court focuses exclusively on the "rights" of gang members and their companions. It can safely do so &emdash; the people who will have to live with the conseqences of today's opinions do not live in our neighborhoods."

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