Vivid and Explicit

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  • “As two masked and armed men broke in, Susan Gonzalez was shot in the chest.”
  • “When three armed intruders ... broke into the home of a single woman [Feng Zhu Chen] at 3:44 a.m., she dialed 911. No answer . . . [She] held a phone in one hand and took up her pistol in the other and began shooting. She fired numerous shots . . . After the shooting was over and two of the armed suspects got away and one lay dead, she did get through to the police. The home security camera video is dramatic.”
  • “Nothing in the Second Amendment makes lethality a factor to consider . . . The Second Amendment does not exist to protect the right to bear down pillows and foam baseball bats. It protects guns and every gun is dangerous.”
  • “In the late-15th Century, Leonardo Da Vinci designed a 33-shot weapon.”

These quotations are examples of how US District Judge Roger Benitez used unusually vivid language and illustrations in declaring that a high-capacity magazine ban in California is unconstitutional. The case, Virginia Duncan v. Xavier Becerra, began with a preliminary injunction in July 2017. It is an ongoing battle over banning high-capacity magazines. The latest news, as of this writing, is that his order of March 29, 2019 has been stayed pending appeal. So California can continue to prohibit buying and possessing magazines with a capacity greater than ten cartridges.

As far as I can tell, California first defined and regulated high-capacity magazines by the Assault Weapons Control Act of 1989. The act generally bans magazines with a capacity of more than ten cartridges. The law is absurdly complex, with exceptions for previously acquired weapons (grandfather provisions), for Olympic sport shooting, for active military moving to California, for film industry uses, for people traveling through California, etc. The same act imposes firearm-related rules relating to everything from the length of barrels to the use of shotshells in handguns.

If you did not get rid of your high-capacity magazines, you would become a criminal by simply keeping something that you had legally acquired and owned.

When this law went into effect you could no longer buy high-capacity magazines, but you could keep any that you already owned. The grandfather provisions allowed people who had lawfully acquired high-capacity magazines before the prohibition to keep them. In 2016 the state eliminated that exception. If you legally had high-capacity magazines, you would have to get rid of them. If you did not, you would become a criminal by simply keeping something that you had legally acquired and owned.

In May 2017, the plaintiffs sued in federal district court. They were people who owned high-capacity magazines and people wanted to own high-capacity magazines. The plaintiffs wanted to eliminate the ban entirely.

In June 2017, Judge Benitez issued a preliminary injunction blocking the change in the law that eliminated the grandfather provisions. You could keep your old high-capacity magazines and you could buy new ones.

In July 2018, a panel of the Ninth Circuit Court of Appeals upheld the preliminary injunction. You could continue to keep your old high-capacity magazines and buy new ones.

Heller was the first decision ever to recognize that the 2nd Amendment proclaims an individual civil liberty. The extent of that right will be fought over for a generation at least.

The defendants appealed to the Ninth Circuit Court of Appeals en banc. In April 2019, District Court Judge Benitez stayed part of his own order pending appeal. The effect of the stay is that current law travels back to a time in 2016 before the grandfather provisions were eliminated. You can now keep your high-capacity magazines, but you can’t get new ones.

Be prepared to see litigation like this for decades to come. It’s surprising to realize that the Supreme Court’s 2008 decision, Heller, was the first ever to recognize that the 2nd Amendment proclaims an individual civil liberty. The extent of that right will be fought over for a generation at least. In California alone, two important cases, this one about magazine capacity and Peruta, about concealed carry permits, have been going on for years. Some jurists say that the Constitution is a living document. That has become code for doctrines that change with the times rather than hewing to original intent. The Heller opinion relied on original intent and historical analysis. Duncan v. Becerra refers to Heller and gives us a vivid and explicit 2nd Amendment with no need for a “living document.”




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The Quest for the Perfect Slogan

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Sex seems to bring out the worst in us, even when it doesn’t happen.

I refer, of course, to the Brett Kavanaugh episode. I don’t want to argue about the sex accusations themselves, partly because I just can’t get interested in either Kavanaugh or his accusers — all self-evidently tedious, boring people — and partly because I’m sure you’ve reached your own view, and if we differ, why should we go over it all again?

Merely to be honest, however, I need to say that I never believed any of the accusers. Christine Blasey Ford was the only one I might have believed, but she made untrue statements about so many things — her paralyzing fear of flying, the time and reason for installing an extra door on her house, her lack of memory of crucial episodes that happened only weeks before, let alone three decades before — that there was, for me, every reason not to believe her. I was not impressed by the supposedly corroborating evidence, which consisted only of assertions made by Ford herself (in psychological counseling sessions!) about 30 years after the alleged event. Are we now corroborating our statements by making them more than once?

I just can’t get interested in either Kavanaugh or his accusers — all self-evidently tedious, boring people.

But so much for that. What I want to talk about is the verbal and rhetorical horrors of the affair. I’ll start with the “protestors” who on September 24 assailed Senator Cruz in a Washington restaurant and drove him forth with loud cries, citing his support for the Kavanaugh nomination as a reason for restricting his culinary choices. Cruz has no problems of self-esteem, so I’m sure he’ll survive; I’m not so sure about the survival of some vital distinctions in our language. There is a difference between protestors and harassers, and between individual harassers and a mob. CNN anchor persons now fly into a tizzy if someone uses the word mob, but the word remains useful. A mob does more than bother you or protest against you; a mob wants to have its own way with you.

Protestors can be witty and humorous; mobs never are — although a member of the anti-Cruz mob did say something funny, one of the few funny sayings among the millions spilled over the Brett Kavanaugh dam. Referring to Cruz’s opponent in the current senatorial election, Robert Francis (“Beto”) O’Rourke, the young protestor said, “Beto is way hotter than you are.” No one will argue that this isn’t true. Some may argue that it isn’t all that funny, either, but I’ll take funniness where I can find it, especially when it cuts through the shroud of deep moral seriousness with which contestants on both sides of the Kavanaugh affair tried to suffocate us.

The rest of the keep-Cruz-from-eating discourse was not amusing. Its central feature was the high-decibel chant, “We believe survivors!” For weeks that slogan served as the argument of choice for Kavanaugh’s antagonists. Their method was backed by historical precedent, a precedent that illustrates the way in which even good causes can be hurt by bad rhetoric.

There is a difference between protestors and harassers, and between individual harassers and a mob.

Let me put it to you this way. In early life I often participated in anti-Vietnam War protests. Occasionally I organized them. To paraphrase Whitman: I was the man; I shouted slogans; I was there. I still think that the war was wrong — but I no longer think that angrily screaming a few catchphrases is a decent way of carrying on debate. If you believe it is, your tendency will be to make your slogans substitute for thought. Soon, freed from thought, the slogans will stop appealing to anyone except people who view them as the moral equivalent of war, and enjoy waging war. I’m pretty sure that slogans and demos didn’t end the actual war in Vietnam; they enraged more people than they inspired.

Since then, however, Americans of all persuasions have acted as if progress is to be made by shouting inane phrases, suspiciously resembling high school football chants, and imagining oneself as a Workers’ and Soldiers’ Delegate marching on the Winter Palace. They have so much fun dramatizing themselves that they stop caring about the effect. Does anyone hear people screaming “We believe survivors!” and say, “Hmmm. Maybe I was wrong. Now I see that Judge Kavanaugh’s nomination should be rejected.” Only an insane person would meditate thus, and when I watched adult persons being dragged from Senate chambers shouting the single word “Shame!” until the word dissolved into an animal howl, I wondered why anyone not seriously unbalanced would want to argue in this way.

The noise they were making was the type my grandmother had in mind when she said she hadn’t heard anything like it since the old cow died. It drowned out any attempts at serious discussion of Kavanaugh’s qualifications for high office — discussions from which his adversaries might have emerged victorious. Yet these officially distressed people all seemed remarkably smug, as smug as teachers who’ve caught some students cheating and can now indulge the pleasure of bawling them out. After all, the cry of “Shame!” implies that those on the receiving end understand the rules and know that they violated them; all the culprits need is to be publicly disgraced. But despite its high moral purpose, the protestors’ rhetoric was literally repulsive — repellant, repugnant, noxious to anyone exposed to it for significant periods of time.

To paraphrase Whitman: I was the man; I shouted slogans; I was there.

Its logic was repulsive too. The howl of “We believe survivors!” was not only an attempt at winning by intimidation; it was also an attempt at winning by definition. The question for debate was whether someone (e.g., Christine Blasey Ford) was in fact a survivor of something, and if so, what that something was; the demand for belief was just an impudent way of eliding the debate. So was the adjuration to believe the victims, as in Michael Avenatti’s denunciation of the press for not caving in to accusations made by his client. “I am disgusted by the fact that the press is attacking a sexual assault victim,” Avenatti said. He could have saved himself from disgust by simply showing that his client was indeed a victim.

Senator Lisa Murkowski (R-AK) took the same tack as the “We believe survivors!” sloganeers, although with her even a slogan has to be dressed up with a sofa, a coffee table, and some heavy drapes. “We are now in a place,” she intoned, “where it’s not about whether or not Judge Kavanaugh is qualified. It is about whether or not a woman who has been a victim at some point in her life is to be believed.” No, it’s not about that. Everyone agrees that if someone is a victim, she should be believed. The question is, Were these people victims or not? Did they survive anything that endangered their survival? Murkowski assumes that if you define them as victims and survivors, and shout loudly enough — or orate heavily enough — about it, then you have won the argument. But what if I shout in reply, “I don’t believe a LIAR!” Where are we then? Who will decide between these two sets of powerful arguments?

I’m going to say this as solemnly as I can: a world in which people just are what they say they are, and you are required to believe them, because that’s what they are, is a world incompatible with liberty. It’s a world in which anyone can be accused of anything, and lose everything, because he or she is guilty by definition. If protection from this violation of liberty isn’t specifically mentioned in the Bill of Rights, it’s because the authors never thought that anyone would be stupid enough to use such logic in constitutional discourse, or smug enough to insist on it.

The noise they were making was the type my grandmother had in mind when she said she hadn’t heard anything like it since the old cow died.

Less repulsive, I suppose, than argument by definition, but similar in logical status, is argument by emotion — your emotion or somebody else’s. Kavanaugh was believed or not believed because he showed certain emotions. Ford was pronounced credible because her hearers felt that her emotions were appropriate to the occasion. Others, admittedly, found her credible because, as they said, “She had nothing to gain by making these charges.” Excuse me — is there no gain in attracting a national spotlight, advancing the political causes you espouse, or even expressing your turbulent emotions in a public context? Both true and false witnesses can have these motives, and to deny that people have them suggests a disqualifying ignorance of human nature. This may be a good place to cite Ayn Rand’s idea that emotions are not tools of cognition. And they aren’t.

Here’s evidence. There is in this world a person named Anna Ayers. Until recently she was a prominent member of the student “senate” at Ohio University. She is no longer a member of that august body, because she was arrested for sounding a “false alarm” — accusing an unnamed fellow senator of writing abusive and threatening messages to her because of her sexual orientation. The cops say that she wrote the messages herself, and I assume she did, because, despite her plea of not guilty, no defense has been forthcoming. Making her accusations in a speech before the senate, Ayers ranted, declaimed, choked up, and shared her deepest feelings:

“Senate will never be the same for me,” Ayers said in front of her Student Senate peers. “The friendships will continue to grow, and our successes will always evoke pride, but the memory of my time in senate and at OU will be marred by this experience. We will all have a memory of a time when this body failed one of its own.”

Ayers went on to call the threat sender cowardly, weak, and worthless. . . .

“You may find me revolting and worthy of a threat on my life, but in reality, it is your beliefs that are repulsive,” Ayers said during her speech in the senate. “You need to get this through your head, you f***ing a**hole: I am proud to be who I am, and nothing you could say or do will ever change that.”

Emotionally credible? Certainly. But emotional credibility (surprise!) had nothing to do with truth, despite the assumptions of Ayers’ student council colleagues, who instead of reacting with disgust to the evidently false accusations that Ayers leveled at themselves still believe in believing anyone who accuses anyone. Maddie Sloat, Student Senate President, said:

It’s important for you to know that I do not, for one second, regret any of the actions we took in the past week to support Anna on the information [query: what information?] that we had at the time. . . . Know that if you report something to (Vice President) Hannah (Burke), (Treasurer) Lydia (Ramlo) or anyone else on our leadership, we will listen. We will believe you. We care about you.

“You” being . . . everyone in Salem with a tale to tell?

Note that we are still in the to-our-contemporaries-terrifically-confusing realm of sex and sexuality. In a nation that gives — and rightly gives — unprecedented freedom to sexual expression, freedom is never enough; enemies both of sexuality and of chastity must be assiduously hunted, and if not found, invented. In a nation oozing sexuality from every pore, a nation in which sexual aggression is a staple of popular entertainment and in which stars of stage and screen struggle daily to free their bodies of all skin cover, one of the nation’s leading lawyers can refer to Judge Kavanaugh, as having been “accused of the most heinous crime imaginable.”

With Murkowski even a slogan has to be dressed up with a sofa, a coffee table, and some heavy drapes.

The author of that statement is the irrepressible Alan Dershowitz, sharing his feelings on Tucker Carson’s show. Dershowitz was actually defending Kavanaugh against accusations he did not find credible, but he followed fashion when it came to the crime itself. In America one can never mention sex without superlatives. Either it is the most sacred, most necessary, and most liberating of all human enterprises, or it is the most heinous crime imaginable.

Why is such language used? One reason is simply a desire to win at any conceptual price. It sounds so feeble, doesn’t it, to say, “I disagree with you about Judge Kavanaugh. I don’t think he has the right qualifications, and I’m inclined to believe Christine Ford. Her testimony isn’t conclusive, but it may be true, and I don’t think that a person under a cloud of serious suspicion should be elevated to the Supreme Court.” It feels stronger to say, “Anyone who doesn’t believe Christine Ford is against the rights of all survivors of heinous assaults.” Then, if you still haven’t convinced everybody, you can seek people out and scream “Shame!” in their faces, thereby winning the argument.

Another reason is fear. Even Dershowitz, who is no little snowflake, apparently fears that if you say something like, “Kavanaugh is accused of forcing himself on a young woman and trying to take off her clothes,” people will accuse you of trivializing sexual assault. So you’re afraid, and you call whatever it was that he’s suspected of doing “the most heinous crime imaginable.” Now no one will attack you, and you will win the argument! Maybe, but at what a price?

And that’s what you can ask about all of the above: at what a price?

Freedom is never enough; enemies both of sexuality and of chastity must be assiduously hunted, and if not found, invented.

Turning now to the lighter side of the news . . .

Here’s a headline from the Boston Herald, September 30: “Howie Carr: Treat Brett Kavanaugh as good as illegal alien criminals.” Hmmm . . . How good are they treated? Real good? The error is not in Carr’s article; he knows grammar — although it doesn’t take much knowledge to avoid the good-well mistake. Now, what part of an article is most important to get right? The headline, that’s what.

In case you think that sex scandals are confined to America, here’s something from an article (October 1) about problems in Sweden: “The scandal started with 18 women publicly accusing well-known photographer Jean-Claude Arnault of sexual misconduct last November.” I don’t want to trivialize anything, but I do think it’s remarkable that he committed sexual misconduct with 18 women in the same month.

Speaking of mass activities, consider a video aired on Fox News on October 6. It showed demonstrators being prepped for their performance at the office of Senator Heidi Heitkamp (D-ND) to protest the Kavanaugh nomination. The group is learning, by recitation, how they’re going to protest. The (male) group leader chants, “We are going to Heidi Heitkamp’s office”; the group repeats, “We are going to Heidi Heitkamp’s office!” Etc. Finally one woman interrupts: “But she’s on our side.” All repeat: “She’s on our side!”

I don’t want to trivialize anything, but I do think it’s remarkable that he committed sexual misconduct with 18 women in the same month.

One more item to close it off. It isn’t directly related to the rhetoric of sex, but it’s about Hillary Clinton, so you know it’s gonna be good. I feel sad to make this confession, but Mrs. Clinton is my joy and comfort. Not even Donald Trump can provide such a steady stream of comedy, if only because he himself has a sense of humor. It’s not my sense of humor, but he’s got it, and as the old expression goes, you can’t kid a kidder.

Clinton has no such sense. She has no sense of any kind. When she blamed her husband’s sex scandals on “a vast, rightwing conspiracy,” when she angrily demanded what difference it made about why our embassy in Benghazi was looted and our ambassador murdered, when she, campaigning for the presidency, labeled a large portion of the voting population “deplorables,” her remarks were carefully prepared and conscientiously rehearsed. She wasn’t blurting anything out. She thought her statements were the right things to say. She undoubtedly still thinks they were the right things to say. The more carefully, thoughtfully, and self-righteously she speaks, the funnier you know she’ll be.

Looking for a conclusion to this month’s column, I knew that Clinton would have something for me, and of course she did. It’s the interview (October 9) in which she maintained that it’s impossible to be civil to the opposing party, because "you cannot be civil with a political party that wants to destroy what you stand for, what you care about." Again, it’s the argument from emotion: what you care about. But her assertion of a subjective standard didn’t keep her from adopting the objective tone of an ethics professor, revealing the results of her research.

Clinton wasn’t blurting anything out. She thought her statements were the right things to say. She undoubtedly still thinks they were the right things to say.

Programmatic incivility isn’t especially good politics, but never mind; you can always promise to be civil later on. The logic here is exceptionally challenging, but let’s keep with her. She followed her defense of incivility by saying, “That’s why [why?] I believe, if we are fortunate enough to win back the House and/or the Senate, that’s when civility can start again.”

Here we have a whole new approach to rhetoric. I will rail at you, condemn you, call you names, accuse you of crimes, do my best to intimidate you. This is perfectly ethical; indeed, it is an ethical requirement. But if it succeeds, I will consider it ethical to treat you civilly — again, or for the first time.

To think this is remarkable. To announce it is bizarre.




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By the Sword

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We’re a society that worships brute force. We distrust peaceful and reasonable persuasion. The Brett Kavanaugh mess really brings that home.

The judicial nominating process overemphasizes abortion. Concentrating on Roe v. Wade — whether for or against it — only guarantees that we’ll continue to be a force-based society. That we’ll go right on obsessing over what the government will permit us to do, or force us not to do.

As a Christian, I believe that abortion is wrong — except when, to save the life of the mother, it becomes a sad necessity. But were I to decide against having an abortion, it would make a tremendous difference to me whether I was free to make my decision on conviction or under compulsion. By making the repeal of Roe v. Wade the holy grail of the pro-life movement, we who do oppose abortion are behaving not like those who trust in Ultimate Truth, but like those who depend on brute force.

Concentrating on Roe v. Wade — whether for or against it — only guarantees that we’ll continue to be a force-based society.

The idea of being bullied into sex is so abhorrent to most women that we flinch at the testimony of Dr. Ford — regardless of whether we’re certain we believe her or not. But we’re being manipulated, and not very artfully. I’m used to this game — as a woman, and as a gay woman especially. I see through it, and I’m tired of it. Americans need to grow up and stop permitting themselves to be jerked around by raw emotional appeals.

The Kavanaugh proceedings degeneratedinto a circus. We were inundated with high school hijinks — real or imagined — from the early ’80s. The spectacle was degrading to everyone who got dragged into it. And we’ve all been in it up to our eyeballs.

For the record, I believe Brett Kavanaugh. I don’t find Christine Blasey Ford’s testimony the least bit credible. I can believe that she may have been assaulted, but she’s done nothing to prove that Kavanaugh was the culprit. Her motivation in fingering him seems, to me, blatantly political.

We’re being manipulated, and not very artfully.

The proceedings have been violent because the minds driving them are violent. They’re dominated by a toddlerish desire to dominate. The political competition has been tit for tat for so long that each side feels justified in being aggrieved by the aggression of the other. It no longer matters who started it, because no one wants to finish it.

Each side’s aggression is actually necessary, and even welcome, to its opponents. It provides the excuse for continuing to aggress. Where the abortion issue is concerned, the unborn are aggressed against — so others must aggress to defend them.

As far from them as I am on many issues, I can easily enter into progressive women’s minds. Under those funny pink hats, when it comes to the abortion wars they have a real concern. They think that with Brett Kavanaugh on the Supreme Court, they’ll be pushed around.

The proceedings have been violent because the minds driving them are violent. They’re dominated by a toddlerish desire to dominate.

The sexual assault he is alleged to have attempted is a metaphor for what they believe he wants to do to them. If government force is brought to bear — no matter how justifiable its advocates think it will be — those against whom it would be used are going to see it as violence. And violence is exactly what it is.

I believe the abortion debate is winnable by the pro-life side. But its affinity for government brawn gives the distinct impression that it doesn’t trust its own argument. Yet until that argument is won, its dependence on force will only continue to work against it. If all nine Supreme Court justices were pro-life, that would not change.

Many people are surprised at the vehemence with which Kavanaugh’s nomination was opposed. Frankly, I’m surprised that they’re surprised. “Live by the sword, die by the sword” is an adage that used to be clearly understood. The political powers-that-be are forgetting it at everyone’s peril.




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Courting Disaster

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Even before the allegations of sexual misconduct surfaced, even before his prissy, petulant meltdown on live TV, even before he repeatedly perjured himself in response to fairly innocuous questions about juvenile sexual terms and the extent of his youthful drinking, Brett Kavanaugh was unfit to be appointed to the United States Supreme Court. The fact that he will shortly be confirmed to that post anyway says a great deal about the values of both parties at the present moment.

In a number of ways, Kavanaugh might look the part of a Supreme Court justice. He graduated from Yale Law, one of two, maybe three permissible schools for a justice to attend; he clerked for a Supreme Court justice (Anthony Kennedy, whose seat he is attempting to fill); and he did time in the US Circuit Court of Appeals in DC, widely regarded as the second-most powerful court in America. Yet compared to any of his peers with similar attainments, Kavanaugh does not stand out: both Merrick Garland and Neil Gorsuch, to name only the two most recent nominations, had more distinguished careers on the DC Circuit, and there are plenty of other appellate judges on other circuits who are both smarter and younger. So why was he appointed, and why did the GOP stand by him long after it became clear that his nomination was in danger?

The answer to both questions is that, as a party hack, Kavanaugh is without peer. His introduction to public life was as Ken Starr’s sidekick, chasing after feverish conspiracies like the supposed murder of Vince Foster, and writing much of the Starr Report urging impeachment of Bill Clinton as well as aggressive and explicit questioning of the president in the actual trial. (Note that Bill Clinton, like every other American president going back quite a ways, should have been impeached and imprisoned for war crimes, at the very least. But that’s another matter entirely.)

Why was Kavanaugh appointed, and why did the GOP stand by him long after it became clear that his nomination was in danger?

Kavanaugh then joined George W. Bush’s legal team in time to argue against the ballot recount in Florida; eventually he would be made White House Staff Secretary, responsible for all documents going to and returning from President Bush’s desk, as well as for coordinating policy makers and speechwriters. In this capacity, he would have had immense latitude to shape the legal doctrines that made the Bush presidency such a disaster: the prosecution of the wars in Afghanistan and Iraq, the internment of prisoners without due process in Guantanamo Bay and their torture in Abu Ghraib and a variety of other black sites around the world, the invocation of “national security” to justify warrantless surveillance and a vast expansion of domestic spying operations, the use of signing statements to exempt the president and the Homeland Security apparatus from actually being bound by any laws, et very much cetera.

It is difficult to know exactly how influential he was in his three years on the job because the Republicans controlling the Senate Judiciary Committee refused to request or review more than a tiny fraction of the relevant records; it seems unavoidable though that he was one of the central figures in the development and prosecution of the War on Terror, not to mention such culture-war efforts as those to ban gay marriage and restrict abortion. His service to the party earned him many friends, as well as his appointment to the DC appellate circuit, where he would continue his work to expand the power of the imperial presidency.

However, it took three years for Kavanaugh to get confirmed, because Democrats worried that someone so near the heart of the Bush administration might not aspire to impartiality when it came to questions of executive power or national security. And he set about proving them right, in opinions supporting the government’s vast warrantless surveillance program, defending the use of military tribunals and the removal of what few legal protections were left for Gitmo detainees, and giving the FBI and military free rein to torture even American citizens swept up in terror operations.

As a party hack, Kavanaugh is without peer.

Worse, Kavanaugh established himself quickly as perhaps the most hardline circuit judge with respect to criminal justice. In a speech last year to the American Enterprise Institute, Kavanaugh said he admired William H. Rehnquist’s attempts to eliminate Fourth Amendment protections, in particular the exclusionary rule preventing unlawfully obtained evidence from being admitted in trial, and the established Miranda rights requiring police to inform arrestees of rights including representation. From the bench, Kavanaugh has made his own contributions to this cause, among them a denial that attaching a GPS to a suspect’s vehicle constituted a search, a refusal to consider the lack of probable cause as any barrier to a random search, and a rejection of any limit on the qualified immunity granted to police. Kavanaugh’s preferred world, like Rehnquist’s (and unlike Kennedy’s), is one in which the police would be even more empowered than they are today, where the painfully slow pushback of the last few years against police and prosecutor misconduct, as well as against the wider United States prison gulag system, would effectively be wiped out.

There’s plenty more, but I won’t labor the analysis here; you can read his record as well as I can. The point to be gathered is Kavanaugh’s devotion to Republican Party policy, and in particular to the validation of his work on the greatest blunder in contemporary geopolitical history, the US War on Terror. And that rehabilitation campaign is one in which the Democrats are fully complicit—not just in the reliable bipartisan support for treasury-wrecking outlays on defense, but also in more personally galling ways such as the media airbrushing of George W. Bush, making him a kindly grandfather figure who pals around with Michelle Obama, rather than a war criminal whose conscience obviously isn’t burdened by the hundreds of thousands of people who died and the millions more who continue to suffer because of his decisions.

This is a big part of why the Republicans are so desperate to have Kavanaugh rather than any other nominee: his confirmation will mark another stage in the normalization of our nightmare of endless war. But it’s also why the institutional Democrats, this time around, refused to go after him on policy issues: their future lobbying prospects depend on cozy relations with weapons manufacturers and the thinktanks authoring white papers in support of ever more, and ever more expensive, conflict.

Kavanaugh’s preferred world is one in which the police would be even more empowered than they are today.

(It’s likely also why they refused to inquire further into any sources of funding underlying Kavanaugh; it’d be hard to find a figure in Washington without some source of dark-money funds underwriting them. The mystery of how Kavanaugh had hundreds of thousands of dollars of debt mysteriously wiped out, or how he afforded his country club fees or bought a house beyond his means, is probably attributable to wealthy family members writing him checks. But there’s much larger-scale questions to be asked about the dark money pouring into groups like the Judicial Crisis Network, which banked $28.5 million from one undisclosed donor alone and backed Kavanaugh, like Gorsuch before him, to the hilt. Obviously Kavanaugh wasn’t going to betray any knowledge of the identity of his benefactors, but it would have been good to get him on the record, under oath, denying it.)

So the Dems were left with his boorish high school and college behavior, which isn’t disqualifying; the accusations of assault, which would be, but which would be near impossible to demonstrate to the point of changing anyone’s mind; and his lies under oath, which should rule him out entirely but clearly won’t. Not many people, certainly not those with congressional voting privileges, were really concerned about him growing up an entitled brat or being generally a dick in his early years; many of them are dicks themselves, and certainly all of them are familiar with the awful DC-suburb prep schools that incubate Kavanaugh’s ilk. If he owned to that, he could even spin it into a narrative that in Catholic circles dates back to Augustine at least: the dissolute youth made good. But he insisted on presenting himself as some kind of goody-two-shoes, too busy studying and playing wholesome team sports to do much partying, and too uncool to be invited to too many parties even if he wasn’t hitting the books. His bizarre insistence on declaring himself a longtime virgin—as if that had any bearing on the commission of sexual assault!—typified the overcorrection; plenty of other people regret who they were in high school, it’s relatable, but he refused to relate it.

The institutional Democrats refused to go after him on policy issues: their future lobbying prospects depend on cozy relations with weapons manufacturers and the support of ever more, and ever more expensive, conflict.

The odder outbursts of his testimony—the ones that lost him the support of former Justice John Paul Stevens, Lawfare blogger Benjamin Wittes, and a few thousand members of the America Bar Association, among others—seemed attached to questions about his drinking, especially his nasty retort to Amy Klobuchar when she asked about him about blacking out. It’s a relevant question: if you drink to blackout point, you might do something and truly believe you didn’t, because you would have no memory of that action. But Kavanaugh, who by the accounts of many had the reputation of a heavy drinker even at a heavy-drinking prep school and college, thought it better to turn around that question, a move recognizable to anyone who’s ever confronted a friend or family member on similar grounds.

Kavanaugh’s performance was so bad—and maybe worse, weird—that it suddenly looked like the 51-seat Republican majority might crack. In play now were Susan Collins (R-ME), who had previously agreed to support any candidate from a list provided by the Federalist Society; Lisa Murkowski (R-AK), whose support usually could be secured by federal monies heading to her state; and above all Jeff Flake (R-AZ), who exemplified the so-called “never Trump” Republican by loudly declaiming against the president’s bearing before voting for almost every one of his policies. Several of the conservative Democrats who crossed party lines for Gorsuch after the Republicans nuked the filibuster rule for the consideration of Supreme Court justices—Heidi Heitkamp (D-ND) and Joe Donnelly (D-IN)—would declare themselves as “No” votes, leaving only Joe Manchin (D-WV) to keep it from the rarity of a purely party-line vote for a Supreme Court nominee.

Flake, for the merest of moments touched by something approaching a conscience (or perhaps just aware of how footage of him callously shutting an elevator door on sexual-assault survivors might play in the 2024 presidential primaries), called for an FBI investigation into the claims. What followed was a brilliant, extremely cynical tactical move by the GOP: after Flake in his original statement called for a week-long span, the White House placed additional restrictions on the investigation (even as the president tweeted lies about there being no restrictions).

What followed may be perhaps most cursory, slapdash FBI investigation ever—not the most unethical, Lord knows, but usually the feds have some sort of standards even when they set out to destroy someone’s life. After three days, the FBI announced they were wrapping up; they had interviewed only 11 people, including neither of the principals—Christine Blasey Ford being set to one side as seemingly irrelevant, and Kavanaugh himself being placed firmly off limits, as were any questions relating to his consumption of alcohol now or decades back. I’m pretty sure I interview more people, and ask harder hitting questions, on an average afternoon at a Libertarian National Convention.

His performance was so bad—and maybe worse, weird—that it suddenly looked like the 51-seat Republican majority might crack.

The resulting report will not be available for any of us to read, not for decades, at least unless some future president declassifies it. In a process demonstrating the weird, cultish protocols that accrue in a cursed place like Congress, any senator wishing to read the report had to descend to the Capitol basement and view it in a room on complete lockdown, no cellphones or recording devices allowed, not even so much as a notebook. The process is a holdover from Obama’s early days, and is yet another example of how that regime’s lack of transparency enables the unapologetic opacity of this one, such that everyone entering the room was enjoined against discussing the contents of the report in any but the most general sense. But since it was merely a theatrical gesture to begin with, it was never going to change any minds. Certainly Flake felt like he now had the cover to do what he had wanted to do all along: vote yet again to support the agenda and nominee of the president he has said is “ruining our country” through “tribalism.” Once Collins was aboard—the supposedly pro-choice, “pro-woman” senator basking in the spotlight, taking almost an hour to justify supporting a candidate who will snap at the chance to restrict abortion in any way that presents itself—the scam was complete.

Throughout all this, at precisely the time (well after it, actually) when he should have been shutting up, Kavanaugh wrote a jaw-droppingly self-serving op-ed in the Wall Street Journal in which he apologized vaguely for “a few things I should not have said.” He didn’t say exactly what those things were, presumably among them the idea that this whole ordeal was “revenge on behalf of the Clintons” or the threatening statement that in US politics “what goes around comes around”—i.e., the precise sort of partisan motivation that the institution of the Supreme Court was designed to avoid. He tried to present these statements as “very emotional” moments—despite the fact that they were part of a prepared statement he had drilled on for days. As genres of apologies go, his fell in the “I’m sorry you made me do that, I won’t do it again (unless I have to)” camp familiar to many unhappy homes across the nation.  But any apology, however vaporous, was beside the point: the column was ultimately a presentation of Brett Kavanaugh’s personal mythology, the way he clearly sees himself and wishes to be seen.

In this statement, you can see why the Republicans are bound to Kavanaugh, why they can’t just jettison him and tap someone like Amy Coney Barrett, who would comparatively breeze through hearings and rule almost exactly the same way on the bench. Kavanaugh, more fully than any other contemporary figure, represents all sides of the Republican Party as presently constituted. He’s the Fox News side that spouts whatever conspiracy theories align with his personal grievances, and he’s the Wall Street Journal side who clings to the shreds of intellectual respectability by publishing in the house organ of the neoconservative thinktank Right. But the thing is, those sides have never really been at odds; they might dislike how the other goes about its business, but that business is one and the same: the expansion of unaccountable executive power, the tacit encouragement for government agents to abuse that power, the removal of any consequences when that power is inevitably abused, and the personal enrichment of everyone making possible all of the above.

As genres of apologies go, his fell in the “I’m sorry you made me do that, I won’t do it again (unless I have to)” camp familiar to many unhappy homes across the nation.

The Democrats share much of this central goal, and what they don’t share they’re too ineffective to actually counter; Chuck Schumer will surely go down as one of the most laughably weak opposition leaders in the congressional annals. Some Dems seem content to vote a tepid “No” and just let Kavanaugh be confirmed, possibly out of a belief it will help their election prospects in the midterms. But the Supreme Court is a lifetime appointment, and we can expect Kavanaugh, at 53, to be bolstering the powerful and blocking reform for two, maybe three decades to come, far beyond any temporary and likely illusory electoral advantage.

Expect to see a lot of handwringing about process in the days and weeks to come, much of it from the Republican side. Ignore the bad-faith invocations of “sexual McCarthyism,” especially from those who have had to pay a lot of money to make accounts of their own abusive behavior disappear. Know that the process they followed was to take a bad candidate, hide most of the documentation of his past, bumble through a crisis that would have sunk almost any previous nominee, put him through (or allow him to put himself through) a series of increasingly embarrassing media moments—any of which could have demonstrated his unfitness for a job requiring gravity and personal reserve—stage the most transparently flimsy of investigations, then ram his nomination home regardless.

This is nothing more than a demonstration of pure power politics, a statement of intent from a group of people who intend to get theirs without any recourse to process, or norms, or any of the other words that politicians use when they’re trying to disguise what they’re actually doing. The Republicans apparently don’t think they have to hide behind that anymore. They are comfortable in showing that this—cruel, cynical, conspiracy-minded operators, united behind a party hack who will do immense and lasting harm to the cause of liberty—is who they are. And, as the saying goes, when people show you who they are, believe them.



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The Kavanaugh Conflict

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Many years ago I was attending a conference where I knew most of the speakers socially. One morning I arrived for breakfast — or perhaps it was lunch or dinner; I remember distinctly that it was a circular booth, and I was the last to arrive. One of my friends asked what I thought about the space station on the moon. I scoffed. “There’s no space station on the moon,” I said.

The others reacted with derision. “Of course there is.” “How do you not know about it? It was a cover story in Time magazine!” Even my husband laughed incredulously at my ignorance. “Don’t you read the news?”

I remember feeling very stressed and very humiliated. I wracked my brain, trying to remember the story. And then I did. It clicked. I said, “Oh yeah, the biosphere experiment. They’ve been there for six months, right?”

The two stories mingled, and the memory felt real. I was certain I had read about a space station on the moon.

And they all began to laugh. “See, everyone lies when they think they’re the only one who doesn’t know something,” one of my friends said to the group.

But I hadn’t lied. Not if a lie is defined as deliberate deception. I thought I was telling the truth. My brain had mixed two stories: the one my friends were telling me now about a space station on the moon, and the articles I had read about a similar event, the biosphere experiment in Arizona. The two stories mingled, and the memory felt real. I was certain I had read about a space station on the moon. I could have passed a polygraph at that moment; that’s how sure I was. Moreover, my “memory” was being confirmed by people I trusted — including my husband, the person I should be able to trust above all others. Yes, I was wrong. But I wasn’t lying.

To them it was just a practical joke in the form of a psychological experiment. And they laughed it off. Maybe, if you asked them today, they wouldn’t remember. But I’ve never forgotten it. How could I have been so certain of something I hadn’t experienced?

In the past week I have been reminded of this repeatedly, as friends, newscasters, and political pundits have used Christine Blasey-Ford’s polygraph as evidence that she is telling the truth.

It is very possible that CBF was pawed and assaulted in the way she described. It’s even possible that it happened more than once.

I recently read of a psychological study demonstrating that under stressful or traumatic circumstances, the brain will scan its memory banks trying to make sense of the unsensible. It might be a protective measure, searching for a way to account for the traumatic event, or find a solution to the problem. In the process, memories can become mixed and details altered.

It is very possible that CBF was pawed and assaulted in the way she described. Based on the culture of partying boasted about in her high school yearbooks (which have been conveniently scrubbed from the school’s website in recent weeks), and confirmed by the fact that two men have come forward to say it might have been them, it’s even possible that it happened more than once, which would intensify her traumatic reaction.

However, there is no corroborating evidence to confirm that Brett Kavanaugh had anything to do with it. Yes, he was a drinker in high school, and yes, he attended parties. But every witness CBF has named has denied seeing any such incident. In fact, more than a hundred women who knew him in high school and college and in their professional lives have said that such an action would be completely out of character for him. No one who has known him since he became an adult has accused him of improprieties, and no one except Senate Democrats has accused him of being an alcoholic — including FBI agents who have conducted extensive background checks.

Now I’m going to say something that can (and probably will) be misconstrued as the “boys will be boys defense.” But that is not what I am about to argue.

No one who has known him since he became an adult has accused him of improprieties, and no one except Senate Democrats has accused him of being an alcoholic.

Events that happened when a person was a minor should expire after the statute of limitations has been reached. (And the assault that CBF described would not have been charged as a felony, even if she had reported it at the time, so yes, the statute has indeed run out on this incident.) There is a reason that minors are not tried as adults. As minors, we’re still malleable, still learning right from wrong and what kind of person we want to be. We’re still heavily influenced by those around us, whether it be teachers, parents, friends, teammates, or siblings. We might be taught to accept and act on values and customs about religion, politics, or gender expectations that, in later years, we will find abhorrent. It’s only in adulthood that we begin to examine the various influences and decide for sure which path we want to follow, which character traits we want to emulate and which values we want to eschew.

No 52-year-old man should be judged by what made him laugh when he was a schoolboy. And that’s what’s happening now. Many people still insist on believing that Judge Kavanaugh did everything he’s been charged with, despite the lack of evidence, despite his vehement denials, despite the emergence of two men who say they did what CBF says Kavanaugh did. Many others who initially opposed him now grudgingly acknowledge the lack of evidence, but still refuse to vindicate him. Instead, I’m hearing and reading that they don’t think someone who could be so “immature” and “emotional” and even “unhinged” should serve on the Supreme Court.

Well of course he was immature. He was 17 years old when the yearbook photos and jokes about flatulence and vomiting were written. He was not yet the 52-year-old man who has been nominated for the court. He is no longer that immature boy against whom so many people are expressing indignation.

As minors, we might be taught to accept and act on values and customs about religion, politics, or gender expectations that, in later years, we will find abhorrent.

And “unhinged”? “Emotional”? Who wouldn’t be emotional in this situation?

Imagine being accused of something heinous — something you are certain you did not do. At least if you’re guilty you can experience remorse and regret, show contrition, and beg for forgiveness. You can be angry at yourself as you watch your world crumble, knowing it was your own fault. But when you’re innocent? How do you express remorse for something you did not do? And how do you find forgiveness and understanding for those who falsely accuse you, and continue to accuse you even when all the evidence is refuted?

Now imagine bringing this attack into your home as your wife and sweet daughters and the girls you coach in basketball and your church family all have to bear the effects of those accusations. Imagine the pain of watching them suffer. It would take a veritable saint not to exhibit some anger and emotion over this situation. Even Jesus lost his temper during his ministry, when his “home” (the temple) was defiled.

The hypocrisy is obvious: if he had not shown emotion, those same people would now accuse him of being cold and uncaring. Why is it that Dr. Ford is deemed “believable” because she cried during her testimony, but Judge Kavanaugh is considered unhinged because he choked up? Is it because he’s a man? Or is it because they’re so set on not having Brett Kavanaugh seated as a Supreme Court Justice that they will grab at any excuse to discredit him?

Assault does matter. And it’s possible that Ford did experience what she described, although I don’t think Judge Kavanaugh is the one who did it. But there are two kinds of assault in this story: the physical assault CBF described, and the accusation Kavanaugh has endured. Each has its own traumatic consequences. A person who has been physically assaulted bears no blame in the incident; she can hold her head up as a victim or survivor or whatever she wants to call herself and go forward. But a person who has been falsely accused receives no such sympathy or support. Judge Kavanaugh will bear the consequences of this accusation for the rest of his life. Even if he is exonerated, it will stay with him. So in that sense, bearing false witness is a more serious crime than groping a girl at a party. It has ruined his reputation, his family, and his career. It will forever taint him, even if it isn’t true, because so many people will continue to believe he did it.

There are two kinds of assault in this story: the physical assault Ford described, and the accusation Kavanaugh has endured.

It didn’t have to be this way. Senator Feinstein could have brought it up in the private questioning and the other senators could have asked their questions without the public circus. The accusation is so flimsy, the accuser’s memory so hazy, that it should never have become the main issue in Kavanaugh’s nomination. I’m convinced that the Democratic senators expected, once the first accusation was made, that several other women would say “Me too” with more recent stories and stronger evidence. Ford would not even have had to testify, because Kavanaugh would have been forced to withdraw in shame. That, I believe, was the game plan. And it might have worked if Judge Kavanaugh weren’t such an honorable gentleman regarding women.

Because CBF is the “aggrieved plaintiff” in this case, we can’t impugn her character. We can’t examine her own drinking and partying habits, or her high school yearbook’s glorification of drinking and sex, as they did with Kavanaugh. We can’t wonder about her “fear of flying,” which never seems to have kept her from flying, or the fortune she has accrued in her GoFundMe account as a result of her claim. } We can’t bring up her political activism or other possible motivations. We have to treat her with kid gloves, because she is considered the victim.

This is a very unusual case in that the accused is adamant that it never happened. He is one of the few men recently accused of sexual misconduct not to use the excuse that “I thought it was consensual” or “she misunderstood my actions” or “it was a long time ago.” He said it never happened. And then doubled down with “I was a virgin.” That took a lot of confidence, because it meant that even consensual sex with a willing girlfriend would have made him guilty of perjury. I believe him.

None of what I have said here has any bearing on whether Kavanaugh would be a good Supreme Court justice. I like some of what I’ve heard, and I have reservations about other things. But at this point, I don’t care about the reservations. If the minority party — or either party — can get away with this kind of smutty tactic, then no man of character who cares about his reputation will ever be willing to run for office or serve on the court. And that would be a great loss to the goal of freedom and honor in this nation.




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The Debate About the Court

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Confirmation of a Supreme Court justice is a circus disguised as a graduate seminar. But amid all the pseudointellectual parading and posturing, there are real principles of constitutional interpretation at stake. From a libertarian point of view, I think that four basic schools of interpretation can be identified, each with its attractive and unattractive results.

1. The originalist school, in which the Constitution is interpreted according to the “original intent” of its writers. Predictably, the results are most attractive to libertarians where the freedoms explicitly mentioned in the Constitution (e.g., freedom of speech) are concerned, and least attractive where they are not (e.g., in most matters of local and state legislation).

2. The evolutionist or revisionist school, in which the Constitution is interpreted as “a living document” whose meanings constantly develop in accordance with judges’ attempts to “grapple with new conditions.” This is a very unattractive position for libertarians who want to preserve explicit constitutional rights (e.g., 2nd Amendment rights) from the social engineering of modern judges; it is more attractive to those concerned primarily with such contemporary issues as abortion and gay marriage.

Amid all the pseudointellectual parading and posturing, there are real principles of constitutional interpretation at stake.

3. The theoreticist school, in which the Constitution is interpreted, not according to its original intent, but according to its aboriginal principles, “the principles that inspired it.” For this school, the final meaning of the Constitution is found not in its words but in the theories that originally justified its words, and not in those theories as explicitly stated by, for instance, the words of John Locke, but in the system of ideas that can be found, undamaged by personal errors and contradictions, behind those words. Theoreticism sounds more abstruse than it is. It is an attempt to say that the framers worked with certain ideas of liberty; these ideas were their intellectual “intent”; and we must interpret their words as expressions of that intent, whether the words capture the whole of the intent or not. Theoreticism allows almost every constitutional controversy to result in a victory for traditional libertarian principles; it has therefore been very attractive to many libertarians. One of its unattractive features is that it allows judges with different ideas of “liberty” or the origins of “American ideas” to read the Constitution in that other light.

4. The proceduralist school is the dullest of all schools. It is not meant to be inspiring. It is meant to reduce the risk of constant judicial upheaval by demanding that judges follow orderly processes, paying due deference to stare decisis. We are hearing much of that principle these days, because modern liberals don’t want the Supreme Court to overturn past decisions that they favor. The decisions may have been reached hastily or arbitrarily, but if the results are favorable to what the liberals regard as liberty, they should stand. By the same token, conservatives challenge proceduralism — now. Proceduralism is a ball that anyone can kick. I imagine that few libertarians would want a Court that had no respect for precedent, continuity, and rules of judicial procedure; I also imagine that few libertarians would argue for the maintenance of decisions that they regard as contrary to their own theories, simply on grounds of precedent.

It would be absurd to read texts written by others without a governing respect for the authors’ choice of words.

In the battle over Judge Kavanaugh’s nomination, all these schools of thought will be used and abused, though usually without reference to the names I have given them. It will be interesting to see what Kavanaugh does with them. It’s only fair, however, that I should state my own position. I am a supporter of the first school, the originalist.

Why? One reason is my belief that most of the rights that libertarians value are clearly and originally expressed in the words of the Constitution. Another reason is that I am a literary historian, and it would be absurd for me to read texts written by others without a governing respect for the authors’ choice of words, claiming that the texts mean something that their words don’t say.

But here’s where originalism is itself misinterpreted. Originalism is about interpreting what Hamilton called in Federalist No. 78 the “manifest tenor of the Constitution” — “manifest” meaning clearly evident in the original words. Originalism is about interpreting a document, not the psychology or social position or personal aims or philosophies of the authors. Shakespeare’s purpose was to make money, but King Lear is not about the importance of making money. Chief Justice Taney, in the Dred Scott decision, thought that the authors of the Constitution, some of whom owned slaves, intended it only as a document for white people; unfortunately for him, that’s not what the document actually says.

A truly originalist reading would find little in the Constitution on which to base the vast and crushing edifice of the federal government.

To my mind, the best books on these subjects are still Validity in Interpretation and The Aims of Interpretation, by E.D. Hirsch. You can see what you think of their arguments.

The originalist school of interpretation will be least attractive to libertarians who want to claim certain rights that are real enough but are not in the Constitution, or to accomplish ends that cannot be accomplished, right now, except through revisionist courts. I am thinking, for instance, about the death penalty, which has put constitutional interpretation farther from the manifest tenor of the authors’ words than anyone could possibly have imagined. If the death penalty is bad, an originalist would say, it would be worse to try to abolish it by revisionist interpretation.

The good thing for libertarians is that an originalist reading of the Constitution — a truly originalist reading — would find little in that document on which to base the vast and crushing edifice of the federal government. And that, of course, is why we will probably hear least about true originalism during the political debates about Judge Kavanaugh. If the debaters took it seriously, most of them would be out of a job.




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The Courts and the Second Amendment

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In 2008, the Supreme Court started a new era of Second Amendment jurisprudence.

This is no exaggeration. When the Heller opinion was published (District of Columbia v. Heller, 554 U.S. 570 [2008]), I was surprised to learn that the Court had never decided whether the Second Amendment gave individuals (as opposed to collectives, such as militias) any right to keep or carry firearms. That had been an open question. So, Heller was a big deal, and the justices knew it. The case opened a can of worms — hundreds of plaintiffs would try to wriggle out of states’ prohibitions on the possession and carrying of guns. However, the case said very little about the extent of the right or how it could be limited by law.

In restricting private ownership, possession, and use of guns, the D.C. laws went almost as far as imaginable without imposing a complete ban.

How could a legal opinion say so much and so little at the same time? It was the factual context of the decision that made this possible. When I was in law school I heard the maxim “hard cases make bad law,” meaning that cases of extraordinarily sympathetic circumstances (think widows and orphans) might motivate a lawmaker or judge to create a rule that had bad unintended consequences when applied generally. I think that the majority in Heller saw the case as sort of the opposite: an easy case to make good law. The plaintiff was challenging the laws of the District of Columbia. In restricting private ownership, possession, and use of guns, the D.C. laws went almost as far as imaginable without imposing a complete ban. Private ownership of handguns was banned. Rifles and shotguns might be kept at home but locked or disassembled, in other words, not useful in an emergency.

Finding an individual right in the Second Amendment was a big step. But if you wanted to make that big step as small as possible, the facts behind Heller were just about perfect.

What Heller said was that the Second Amendment gave the plaintiff some kind of individual, civil right, and that right was enough to invalidate D.C.’s heavy restrictions. It was a very limited application of an individual right. Even so, the opinion, a 5–4 split of the Court, drew sharp criticism from the dissenting minority and also from some very good scholars, including Richard Posner, generally thought to be a conservative from the “law & economics” school of jurisprudence. Critics accused the conservative majority of being unprincipled by practicing judicial activism instead of the restraint they often championed.

How far do the rights established in Heller go? What other restrictions on guns might be unconstitutional? Nobody knows. The individual right may be very modestly interpreted. Maybe every other gun law in the country is still constitutionally permitted.

Heller must mean a little bit more than sitting in your bedroom with a shotgun. Eventually, starkly contrasting circuit court cases will force the Supreme Court to say more.

The lower courts and the circuit courts of appeal have had to deal with Heller many, many times. The appeal of California’s Peruta case (Peruta v. County of San Diego, 824 F.3d 919 [9th Cir. 2016] [en banc]) gave the Supreme Court an interesting opportunity to apply Heller. In Peruta, the Ninth Circuit said that the Constitution does not give individuals any right to carry concealed firearms. In California, concealed carry requires a license, granted only for “good cause.” Licenses are rarely and, the plaintiffs would say, arbitrarily granted. Also, open carry is generally banned, by California Assembly Bill No. 144. The Ninth Circuit explicitly declined to say whether banning open carry was constitutional. Therefore, Peruta presents a nice little web of questions. Can all public carry be banned? Maybe. Heller was about keeping guns at home. But its principles seem to go much farther, once this is determined to be an individual right: “the right of the people to keep and bear Arms, shall not be infringed.” Can concealed carry be banned when open carry is permitted? Can open carry be banned when concealed carry is permitted? Can open carry be banned while concealed carry is extremely limited (the current law in California)?

We know that the Supreme Court does not want to answer any of these questions right now, because on June 26 it declined to hear the appeal. That means fewer than four justices voted to take the case. It does not mean they agree with the Ninth Circuit or that they disagree.

I guess that, if forced to decide, the Court would find something wrong with California’s restrictions. Heller must mean a little bit more than sitting in your bedroom with a shotgun. Eventually, starkly contrasting circuit court cases will force the Supreme Court to say more. For now, outside of a few states like California, the political battle for gun rights is way ahead of the courts. All but about 15 states have either “shall issue” licensing or no license requirement at all for the concealed carry of handguns.




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The Right to Be Let Alone

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It is the best of times for government snooping and surveillance.

It is the worst of times for privacy and the Fourth Amendment.

The surveillance state should be dismantled, and the right to be let alone should be restored as the glory of the Republic.

This paper explains why and how.

Why Privacy Matters

The right to be let alone from government snooping or surveillance is the most cherished right among civilized peoples.

Privacy encourages creativity and spontaneity. It facilitates growth, learning, and maturation through a process of trial and error without risk of embarrassment.

Supreme Court Justice Louis D. Brandeis elaborated in Olmstead v. United States, 277 U.S. 438 (1928) (dissenting opinion):

The makers of our Constitution undertook to secure conditions favorable to the pursuit of happiness. They recognized the significance of man’s spiritual nature, of his feelings, and of his intellect. They knew that only a part of the pain, pleasure and satisfactions of life are to be found in material things. They sought to protect Americans in their beliefs, their thoughts, their emotions and their sensations. They conferred, as against the Government, the right to be let alone — the most comprehensive of rights and the right most valued by civilized men. To protect that right, every unjustifiable intrusion by the Government upon the privacy of the individual, whatever the means employed, must be deemed a violation of the Fourth Amendment.

Privacy is a cornerstone of a Republic where the people censure government; government does not censure the people. Consider the following.

No person on paper is clean.

Citizens will refrain from exposing and criticizing government fraud, waste, abuse, or lawlessness if they fear the government will retaliate by disclosing or sharing negative or embarrassing information from dossiers assembled through indiscriminate surveillance. They will become docile — a great menace to freedom according to Justice Brandeis in Whitney v. California, 274 U.S. 357 (1927) (concurring opinion). Edward R. Murrow, the scourge of Senator Joseph McCarthy (R-WI) similarly observed: “A nation of sheep will beget a government of wolves.”

Privacy was the spark of the American Revolution.

The urgency of citizen scrutiny of government has heightened as the size of government has grown from a small acorn in 1790 with a budget of less than $10 million and a few employees to a giant oak in 2017 with a budget exceeding $4 trillion and millions of employees. Further, Congress has virtually ceased to exercise oversight because of institutional sloth and incompetence coupled with a craving to escape responsibility. The Pentagon alone cannot account for a staggering $3 trillion in expenditures. Congress has become an invertebrate branch, which has created a corresponding need for fearless citizen criticism of government.

Privacy was the spark of the American Revolution. In 1761, James Otis denounced British Writs of Assistance. They empowered every petty official to rummage through homes and businesses in search of contraband or smuggled goods. He amplified: “It is a power that places the liberty of every man in the hands of every petty officer.” John Adams chronicled: “Then and there the child of independence was born . . .”

In 1763, William Pitt the Elder spoke against an excise tax on cider to the British Parliament in words that thundered throughout the American colonies: “The poorest man may in his cottage bid defiance to all the forces of the Crown. It may be frail, its roof may shake; the wind may blow through it; the storms may enter, the rain may enter, — but the King of England cannot enter; all his forces dare not cross the threshold of the ruined tenement.”

The Constitution’s framers knew from thousands of years of recorded history that the greatest dangers to liberty emanate from government.

The Fourth Amendment was ratified to enshrine the right to be let alone as a constitutional imperative. Its protections do not depend on the outcome of any election or the spasms of public opinion frightened by terrorist attacks. As World War II raged, Supreme Court Justice Robert Jackson sermonized in West Virginia State Board of Education v. Barnette, 319 U.S. 624 (1943):

The very purpose of a Bill of Rights was to withdraw certain subjects from the vicissitudes of political controversy, to place them beyond the reach of majorities and officials, and to establish them as legal principles to be applied by the courts. One's right to life, liberty, and property, to free speech, a free press, freedom of worship and assembly, and other fundamental rights may not be submitted to vote; they depend on the outcome of no elections.

The Fourth Amendment intentionally creates barriers to law enforcement and a risk-free existence by delimiting the power of government to conduct searches and seizures that disturb privacy. It provides:

The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no warrants shall issue, but upon probable cause, supported by oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.

Accordingly, the government must ordinarily obtain a warrant from a neutral magistrate based on probable cause and particularized suspicion of crime before individual privacy may be upset. In circumstances in which a warrant is not constitutionally mandated, searches and seizures must nevertheless satisfy a “reasonableness” standard.

The Constitution was intended to endure for the ages. Its authors knew that unforeseen changes in technology or otherwise would require atextual interpretations to honor the Constitution’s purposes. They understood, like St. Paul in 2 Corinthians 3:6, that “the letter killeth, but the spirit giveth life.” Thus, Chief Justice John Marshall observed in McCulloch v. Maryland, 17 U.S. 316 (1819) that the Constitution “was intended to endure for ages to come, and, consequently, to be adapted to the various crises of human affairs.”

The Fourth Amendment was ratified to prevent governmental evil — even at the expense of handicapping law enforcement.

The Supreme Court has instructed that the Fourth Amendment should be interpreted to safeguard privacy expectations despite vast changes in government surveillance technologies and capabilities that are no less robust than the privacy expectations of the citizenry in 1791 when the Amendment was ratified.

In Kyllo v. United States, 533 U.S. 27 (2001), the Court held that the warrantless use of a thermal-imaging device aimed at a private home violated the Fourth Amendment. Writing for the majority, Justice Antonin Scalia amplified:

While it may be difficult to refine the Katz [reasonable expectation of privacy test] when the search of areas such as telephone booths, automobiles, or even the curtilage and uncovered portions of residences are at issue, in the case of the search of the interior of homes — the prototypical and hence most commonly litigated area of protected privacy — there is a ready criterion, with roots deep in the common law, of the minimal expectation of privacy that exists, and that is acknowledged to be reasonable. To withdraw protection of this minimum expectation would be to permit police technology to erode the privacy guaranteed by the Fourth Amendment. We think that obtaining by sense-enhancing technology any information regarding the interior of the home that could not otherwise have been obtained without physical “intrusion into a constitutionally protected area,” constitutes a search — at least where (as here) the technology in question is not in general public use. This assures preservation of that degree of privacy against government that existed when the Fourth Amendment was adopted.

Emails or text messages in the Age of the Internet are the functional equivalent of letters in 1791, and should thus command the same protection under the Fourth Amendment. And as to the latter, Justice Stephen J. Field declared in Ex Parte Jackson, 96 U.S. 727 (1877):

The right to designate what shall be carried necessarily involves the right to determine what shall be excluded. The difficulty attending the subject arises, not from the want of power in Congress to prescribe regulations as to what shall constitute mail matter, but from the necessity of enforcing them consistently with rights reserved to the people, of far greater importance than the transportation of the mail. In their enforcement, a distinction is to be made between different kinds of mail matter,— between what is intended to be kept free from inspection, such as letters, and sealed packages subject to letter postage; and what is open to inspection, such as newspapers, magazines, pamphlet , and other printed matter, purposely left in a condition to be examined. Letters and sealed packages of this kind in the mail are as fully guarded from examination and inspection, except as to their outward form and weight, as if they were retained by the parties forwarding them in their own domiciles. The constitutional guaranty of the right of the people to be secure in their papers against unreasonable searches and seizures extends to their papers, thus closed against inspection, wherever they may be. Whilst in the mail, they can only be opened and examined under like warrant, issued upon similar oath or affirmation, particularly describing the thing to be seized, as is required when papers are subjected to search in one's own household.

Premium protection of privacy according to constitutional mandates does not mean weak government. Justice Jackson explained in West Virginia State Board of Education, supra:

Government of limited power need not be anemic government. Assurance that rights are secure tends to diminish fear and jealousy of strong government, and, by making us feel safe to live under it, makes for its better support. Without promise of a limiting Bill of Rights, it is doubtful if our Constitution could have mustered enough strength to enable its ratification. To enforce those rights today is not to choose weak government over strong government.

The Constitution’s framers knew from thousands of years of recorded history that the greatest dangers to liberty emanate from government, not private miscreants, criminal organizations, or non-state actors like al Qaeda. The industrial scale slaughters of the Canaanites and Amalekites chronicled in the Old Testament are emblematic. In more recent times, the Third Reich, the Soviet Union, and Communist China have been complicit in genocide or crimes against humanity that have killed up to 200 million. Unlike private parties or non-state actors, government enjoys a monopoly of legalized violence and the power to tax and to conscript, which facilitates repression on a vast scale. The Fourth Amendment was ratified to prevent this government evil — even at the expense of handicapping law enforcement.

The Constitution — including the Fourth Amendment — is premised on the belief that accepting the risk of being the victim of injustice is morally superior to risking complicity in it. Thus, the due process clause requires proof beyond a reasonable doubt and jury unanimity for a criminal conviction. That standard means some guilty persons will escape punishment and be released with a risk of recidivism. But it also means a diminished risk of convicting the innocent and implicating the entire society in injustice. Justice John Marshall Harlan explained in In re Winship, 397 U.S. 358 (1970) (concurring opinion): “I view the requirement of proof beyond a reasonable doubt in a criminal case as bottomed on a fundamental value determination of our society that it is far worse to convict an innocent man than to let a guilty man go free.”

Even with the reasonable doubt standard, an alarming number of innocent defendants are convicted. According to the Innocence Project, there have been 333 post-conviction DNA exonerations alone since 1989. Of that number, 20 had served time on death row. On average, each innocent defendant had served 14 years in prison.

It is probable that the vast majority of criminal investigations that materially encroach on privacy target innocent persons.

The Fourth Amendment’s reasonableness standard circumscribes government searches and seizures despite the impairment to effective law enforcement. The reasonableness standard is first cousin to the reasonable doubt standard in criminal prosecutions. It is founded on the philosophical principle that it is better to protect the right to be let alone when there is no government showing of a compelling need than to apprehend and punish all criminals. The Fourth Amendment knowingly accepts the risk that some criminals will escape detection that unfree peoples do not because it prefers liberty to a futile quest for a risk-free existence.

Investigations of crime through searches or seizures encroach on liberty irrespective of whether a criminal charge is forthcoming.

The target must retain an attorney at substantial expense to protect against false suspicions or accusations. The investigation, simpliciter, makes the target socially or professionally radioactive — leading to ostracism, the loss of income, family strife, or worse. In the Age of the Internet, the target’s reputation may be irreparably blemished. False and defamatory statements emerging from an investigation are impossible to scrub from the electronic grid. There are countless Richard Jewells of the world of less notoriety.

The percentage of investigations that lead nowhere and thus gratuitously invade privacy is unknown. But clues are available from the Federal Bureau of Investigation’s assessment data. From 2009–2011, the Bureau opened 42,888 assessments of persons or organizations seeking signs of terrorism or espionage. A database search In May 2011 showed that 41,056 of the assessments had been closed without result, and that 1,986 had progressed to preliminary or full investigations — a false positive rate of over 95%. During that period, 39,437 assessments were initiated seeking signs of ordinary criminal activity, and 36,044 had been closed without result, while 1,329 had progressed to preliminary or full investigations — a false positive rate approaching 97%.

The Supreme Court’s crabbed interpretations of the Fourth Amendment have made privacy subservient to highly speculative claims of law enforcement and national security.

It is thus probable that the vast majority of criminal investigations that materially encroach on privacy target innocent persons. No law awards them compensation for the government’s invasion of their privacy and probable permanent loss of a livelihood.

In light of these considerations, the Fourth Amendment or complementary federal or state statutes should prohibit any government search or seizure that materially encroaches on the right to be let alone unless the encroachment furthers a compelling government interest and does so with techniques least disturbing to privacy. Search warrants that satisfy the Fourth Amendment should ordinarily not be utilized unless there is probable cause to believe that very serious criminal activity is afoot, not trivial crimes like marijuana possession or use.

The Withering Away of Privacy

The right to privacy has withered since 1791.

Federal criminal prohibitions have proliferated from a handful in 1790 to thousands today. Each prohibition provides a new government justification for invading privacy in the name of law enforcement. A study by the Federalist Society found that by 2007 the United States Code contained more than 4,450 criminal offenses.

Further, a growing number of federal crimes impose strict liability with no mens rea. They justify investigations with no suspicion that the target acted with a guilty mind.

Additionally, the government began the dragnet collection of foreign intelligence as the United States changed from a republic to a global empire. Foreign intelligence is virtually limitless in scope and generally shielded from legal accountability through the Executive Branch’s invocation of state secrets.

Technology has advanced by leaps and bounds that enable ever-greater government encroachments on privacy, for instance, the interception, retention, and search of every phone or email communication at relatively modest cost.

Finally, the Supreme Court’s crabbed interpretations of the Fourth Amendment — including the third party doctrine — have made privacy subservient to highly speculative claims of law enforcement or national security.

The Proliferation of Federal Criminal Prohibitions. Under the Constitution, there are no federal common law crimes, as the Supreme Court declared in United States v. Hudson, 11 U.S. 32 (1812). Federal crimes are creatures of statutes. The first was the Crimes Act of 1790. It created but a handful of offenses, for instance, misprision of treason, piracy, or counterfeiting.

No Department of Justice or Federal Bureau of Investigation was then created for law enforcement, which was largely ad hoc in response to private complaints.

At present, the number of federal criminal prohibitions are too numerous and scattered to count accurately.

In 1791, privacy was tightly safeguarded against federal intrusions. Yet public safety was not compromised. The federal government scrupulously respected privacy for nearly a century after its beginning. The Supreme Court initially confronted Fourth Amendment claims in Ex Parte Jackson, supra, and Boyd v. United States, 116 U.S. 616 (1886). During the previous decades, crime was not a political issue in a single federal election campaign for the House, Senate, or presidency.

The presidency of Theodore Roosevelt inaugurated the federal regulatory state with the Pure Food and Drug Act of 1906 and Hepburn Act of 1906. Then came the Harrison Narcotics Act of 1914, the Prohibition Era, and the New Deal. By 1940, then Attorney General Robert Jackson was warning:

What every prosecutor is practically required to do is to select the cases for prosecution and to select those in which the offense is the most flagrant, the public harm the greatest, and the proof the most certain.

If the prosecutor is obliged to choose his cases, it follows that he can choose his defendants. Therein is the most dangerous power of the prosecutor: that he will pick people that he thinks he should get, rather than pick cases that need to be prosecuted. With the law books filled with a great assortment of crimes, a prosecutor stands a fair chance of finding at least a technical violation of some act on the part of almost anyone. In such a case, it is not a question of discovering the commission of a crime and then looking for the man who has committed it, it is a question of picking the man and then searching the law books, or putting investigators to work, to pin some offense on him. It is in this realm — in which the prosecutor picks some person whom he dislikes or desires to embarrass, or selects some group of unpopular persons and then looks for an offense, that the greatest danger of abuse of prosecuting power lies. It is here that law enforcement becomes personal, and the real crime becomes being unpopular with the predominant governing group, being attached to the wrong political views, or being personally obnoxious to or in the way of the prosecutor himself. (“The Federal Prosecutor,” address delivered by Robert H. Jackson, April 1, 1940)

During the 75 years that have elapsed since the Attorney General’s address, the problem of investigative or prosecutorial abuses which cripple privacy has intensified. At present, the number of federal criminal prohibitions are too numerous and scattered to count accurately. Renowned attorney Harvey Silverglate authored Three Felonies A Day in 2009. It chronicles the octopus-like expansion of the federal criminal law and corresponding law enforcement abuses portended by Jackson.

At present, the Department of Justice budget approximates $30 billion annually, a sum which supports more than 100,000 law enforcement personnel.

Federal Strict Liability Offenses. The federal regulatory state features a growing number of strict liability or public welfare offenses in which an innocent mind is no defense. Violations of the federal wire fraud statute or the Marine Mammal Protection Act are illustrative. Wade Martin was convicted under the latter act for selling sea otters to a person whom he mistakenly believed was a native Alaskan.

These types of crimes were unknown when the Fourth Amendment was ratified. Justice Robert Jackson explained the strong common law presumption of an evil intent combined with an evil act to satisfy the threshold for criminality in Morissette v. United States, 342 U.S. 246 (1952):

The contention that an injury can amount to a crime only when inflicted by intention is no provincial or transient notion. It is as universal and persistent in mature systems of law as belief in freedom of the human will and a consequent ability and duty of the normal individual to choose between good and evil . . . Unqualified acceptance of this doctrine by English common law in the Eighteenth Century was indicated by Blackstone's sweeping statement that to constitute any crime there must first be a “vicious will."

The growth of strict liability offenses in the regulatory state further lowers the barriers to the initiation of government investigations that encroach upon privacy.

Foreign Intelligence. With the post-World War II transformation of the United States into a global power and the Cold War, the President commenced the collection of foreign intelligence without warrants or congressional oversight based upon an unbounded interpretation of Article II. At present, pursuant to Executive Order 12333, the government gathers foreign intelligence on the President’s say-so alone both domestically and abroad. The definition of foreign intelligence is sweeping, i.e., “information relating to the capabilities, intentions and activities of foreign powers, organizations or persons, but not including counterintelligence except for information on international terrorist activities.”

Foreign intelligence is also collected by the President within the United States under the Foreign Intelligence Surveillance Act, as amended.

The volume of foreign intelligence collected by the government against United States persons is probably beyond ordinary human comprehension.

Internet communications are intercepted, retained, and searched without probable cause to believe crime or international terrorism is afoot. The magnitude of citizen privacy invaded under the Executive Order is unknown because its implementation is cloaked in secrecy, and the government cannot be trusted to volunteer the truth. The Director of National Intelligence, James Clapper, for instance, lied to the Senate Intelligence Committee under oath in denying that the National Security Agency was collecting data against millions of Americans.

Making reasonable inferences from the disclosures of Edward Snowden, the volume of foreign intelligence collected by the government against United States persons is probably beyond ordinary human comprehension.

Technology. The development of technology since the ratification of the Bill of Rights has armed the government with unprecedented tools or instruments for invading privacy. They include wiretapping, surveillance drones, electronic surveillance, DNA collection, facial recognition equipment, thermal-imaging instruments, and instantaneous, inexpensive retrieval of information from vast databases. Supreme Court Justice Sonia Sotomayor amplified in United States v. Jones, 565 U.S. __ (2012) (concurring opinion):

GPS monitoring generates a precise, comprehensive record of a person’s public movements that reflects a wealth of detail about her familial, political, professional, religious, and sexual associations. See, e.g., People v. Weaver, 12 N. Y. 3d 433, 441–442, 909 N. E. 2d 1195, 1199 (2009) (“Disclosed in [GPS] data . . . will be trips the indisputably private nature of which takes little imagination to conjure: trips to the psychiatrist, the plastic surgeon, the abortion clinic, the AIDS treatment center, the strip club, the criminal defense attorney, the by-the-hour motel, the union meeting, the mosque, synagogue or church, the gay bar and on and on”). The Government can store such records and efficiently mine them for information years into the future. Pineda-Moreno, 617 F. 3d, at 1124 (opinion of Kozinski, C.J.). And because GPS monitoring is cheap in comparison to conventional surveillance techniques and, by design, proceeds surreptitiously, it evades the ordinary checks that constrain abusive law enforcement practices: “limited police resources and community hostility,” Illinois v. Lidster, 540 U.S. 419, 426 (2004).

Supreme Court Decisions. The law is generally backward-looking and tardy in responding to new technology. Nearly forty years elapsed before the Supreme Court in Katz v. United States, 389 U.S. 347 (1967) corrected its erroneous holding in Olmstead v. United States, supra, that conversations were outside the protection of the Fourth Amendment.

Katz established a reasonable expectation of privacy standard to inform Fourth Amendment interpretations. But the Court soon rendered the standard toothless in a pair of decisions divorced from reality.

In United States v. Miller, 425 U.S. 435 (1976), the Court held that the Fourth Amendment is inapplicable to a customer’s bank records that are subpoenaed by the government for the purposes of criminal prosecution. Writing for the Court, Justice Lewis Powell explained:

The depositor takes the risk, in revealing his affairs to another, that the information will be conveyed by that person to the Government. United States v. White, 401 U.S. 745, 751–752 (1971). This Court has held repeatedly that the Fourth Amendment does not prohibit the obtaining of information revealed to a third party and conveyed by him to Government authorities, even if the information is revealed on the assumption that it will be used only for a limited purpose and the confidence placed in the third party will not be betrayed.

In Smith v. Maryland, 442 U.S. 735 (1979), the Court similarly held that a phone subscriber had no reasonable expectation of privacy in his dialed phone numbers because they were knowingly shared with the phone company. Thus, the Fourth Amendment did not apply to the government’s suspicion-less use of pen registers in the investigation of crime. Justice Harry Blackmun amplified:

When he used his phone, [the subscriber] voluntarily conveyed numerical information to the telephone company and ‘exposed’ that information to its equipment in the ordinary course of business. In so doing, petitioner assumed the risk that the company would reveal to police the numbers he dialed.

Both Miller and Smith are wildly misconceived. Everyone possesses a reasonable expectation that sensitive or confidential information shared with intimates or businesses for benign, professional, or narrow purposes will not be provided to the government. It has the motive and ability to imprison or otherwise harm you. Internet users share email content with internet service providers without any expectation that the National Security Agency will be privy to the communication. The same can be said, for text messages known to phone companies in the ordinary course of business. But under Miller and Smith, the Fourth Amendment leaves unprotected the contents of every email or text message communication in the United States. The NSA is defending the constitutionality of its bulk collection, retention, and search of telephony metadata regarding every phone call in the United States by relying on Miller and Smith.

Restoring the Right to Be Let Alone

Congress should not tarry in the enactment of legislation that rolls back the staggering encroachments on the right to be let alone that have transpired since the ratification of the Fourth Amendment in 1791.

Atop the agenda should be a Privacy Protection Restoration Act (PPRA), to provide as follows:

A person may assert as a defense in any proceeding alleging noncompliance with a search warrant, subpoena, national security letter, or other government order that compliance would materially encroach on the privacy of that person or a third party unless the government proves by a preponderance of the evidence that compliance is necessary to advance a compelling government interest in law enforcement, and, that the technique for collecting the information minimally encroaches on privacy.

In determining whether compliance with a search warrant, subpoena, national security letter, or other government order would advance a compelling government interest, the court shall consider, among other things, the seriousness of the crime under investigation and documented proof that the investigatory technique to be used in obtaining the information has been substantially effective historically in preventing, deterring, or punishing crime or international terrorism.

The principles behind the PPRA should inform deliberations on pending legislation to update the obsolete Electronic Communications Privacy Act of 1986 (ECPA).

The Email Privacy Act would require the government to obtain a warrant based on probable cause to access the content of any email from an internet service provider irrespective of the email’s age. At present, ECPA restricts protection of email content to communications that have been stored for 180 days or less. That limit was held unconstitutional in United States v. Warshak, 631 F. 3d 266 (6th Cir. 2010). Under any sensible interpretation of the Fourth Amendment, all email content of whatever age should be protected absent a warrant based on probable cause.

Globalization was in its infancy when ECPA was enacted. Most Internet communications and storage took place within the United States. The probability of interjurisdictional conflicts over stored emails outside the United States was more hypothetical than real. Congress predictably remained enigmatic on ECPA’s application to electronic records stored in foreign lands.

Under any sensible interpretation of the Fourth Amendment, all email content of whatever age should be protected absent a warrant based on probable cause.

Three decades later, that opaqueness is unsatisfactory. Law enforcement officials in one country commonly seek access to records in another country. Whose privacy laws apply? The issue has jumped to the forefront because of United States v. Microsoft. In that case, the Department of Justice sought to compel Microsoft to produce emails located on servers in Dublin, Ireland. But the United States Court of Appeals denied that the Storage Communications Act granted that authority. The case might reach the United States Supreme Court.

During the last Congress, a bill known as LEADS would have addressed the issue in the following way.

The government would be authorized to use a warrant to compel production of electronic communications stored abroad if it concerned a United States citizen. There is nothing irregular about extraterritorial application of United States laws to the activities of its citizens. Congress, for instance, has criminalized foreign travel to engage in illicit sex (18 U.S.C. 2423).

The LEADS authorization, nevertheless, would have been worrisome. Reciprocity is the norm on the international stage. If the United States can gain access to information about United States persons stored in China or Russia, we would be required as a matter of comity to permit those countries to obtain access to electronic information about their citizens stored in the United States. Since both China and Russia are lawless nations, their governments can be expected to employ this power to persecute dissidents or otherwise violate human rights. In other words, LEADS’ authorization to use search warrants to retrieve information about United States citizens stored abroad may be a cure worse than the disease.

How important are such search warrants to law enforcement?

At present, we are clueless. Such warrants may be vital or marginal to the investigation of serious crimes. A legislative precedent should not be created that would assist persecution of Chinese or Russian dissidents unless it satisfies a very high threshold of urgency.

We cannot take the government’s law enforcement claims at face value. The government insisted that three counterterrorism laws that have slumbered from birth were imperative: the Alien Terrorist Removal Procedures, Section 412 of the Patriot Act, and the lone-wolf amendment to the Foreign Intelligence Surveillance Act. They have never been used.

Authoritarian governments can be expected to employ reciprocal power to persecute dissidents or otherwise violate human rights.

Congress should thus prohibit the use of search warrants extraterritorially unless the Executive provides hard, nonspeculative evidence that the authority is necessary in a significant number of cases to prosecute significant crimes. The privacy of United States citizens should not be compromised absent demonstration of a compelling government need.

LEADS would have authorized an internet service provider to resist a search warrant’s use extraterritorially by proving that compliance would violate the laws of a foreign country to the issuing tribunal. But United States courts are amateurs in the interpretation of foreign laws. They would be prone to error absent expert testimony. And years could be consumed in litigating appeals of trial court decisions, which frequently would prove fatal to the investigation. The LEADS game for extraterritorial use of search warrants is probably not worth the candle.

Unless much more convincing evidence of law enforcement need is forthcoming, legislation should prohibit the use of search warrants extraterritorially to obtain electronic communications about United States citizens. That would avoid setting a precedent that would assist China, Russia, or other lawless nations in persecuting their dissidents without material offsetting benefits to United States law enforcement.

The United States would not go dark abroad without the use of search warrants extraterritorially. We have more than 50 Mutual Legal Assistance Treaties with other countries that facilitate the voluntary sharing of evidence and information in criminal cases or other government investigations. The MLAT process can be employed whether or not the information sought concerns a citizen or foreigner. It satisfies customary standards of international comity and avoids interjurisdictional conflicts. But new legislation can make the MLAT process more efficient and transparent.

Conclusion

Privacy is the cornerstone of a flourishing democratic dispensation that celebrates a liberty-centered universe. It has withered over the years succumbing to inflated claims of law enforcement or national security.

Congress should restore privacy as the crown jewel of the nation by enacting a Privacy Protection Restoration Act to impose a heavy burden on the government to justify every material encroachment on privacy. If Congress does nothing, privacy is destined to crucifixion on a national security cross.




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The Grand Itch

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One gray afternoon in the 1990s, while on a motor trip home from Philadelphia, I stopped by my old high school, the Henry C. Conrad High School in Woodcrest, Delaware, a near suburb of Wilmington. Standing on Boxwood Road, outside the chain-link fence, I noticed something odd about the building — broken windows, patched with wood or cardboard. I had never seen such damage before, not during my school days. But I simply assumed the damage was a reflection of the destructive tendencies unique to contemporary times.

It was later that I discovered that the building I had gazed at was no longer a high school. Conrad High was, by then, Conrad Middle School. The old high school had closed long ago — caught up in a huge forced busing plan to achieve “racial balance” throughout the northern New Castle County schools. The plan was referred to, mellifluously, as “metropolitan dispersion.” It did achieve dispersion, but not the kind intended by its authors and advocates.

I had never seen such damage before, not during my school days.

All such plans began with the so-called landmark decision by the United States Supreme Court in the case of Brown v. Board of Education of Topeka. The court decided that racial segregation in public schools, in and of itself, denied minority students equal educational opportunities. “Today,” the court declared, “education is perhaps the most important function of state and local governments.” And they went on to say, “In these days, it is doubtful that any child may reasonably be expected to succeed in life if he is denied the opportunity of an education. Such an opportunity, where the state has undertaken to provide it, is a right which must be made available to all on equal terms.” And then came that crucial paragraph: “We come then to the question presented: Does segregation of children in the public schools, solely on the basis of race, even though physical facilities and other ‘tangible’ factors may be equal, deprive the children of the minority group of equal educational opportunities? We believe that it does.”

Education is the most important function of state and local governments? The mind reels — more important than maintaining the police? the firemen? the courts? Is education at taxpayers’ expense a right, or is it a privilege? — or is it, by now, a dubious activity forced on the public by its government? And what about those tangible factors? One might argue that, in the Brown case, tangible factors were the only proper concern of the court.

The court went on to say that “to separate [children in grade and high school] from others of similar age solely because of their race generates a feeling of inferiority as to their status in the community that may affect their hearts and minds in a way unlikely ever to be undone.” The court quoted an earlier decision by a lower court: “A sense of inferiority affects the motivation of a child to learn.” That was plausible, although hardly requiring the justification that the Court found in “modern authority” — in particular, a magisterial tome by Swedish socialist Gunnar Myrdal entitled The American Dilemma: The Negro Problem and Modern Democracy. The well-known footnote eleven in the complete Brown text documented the Myrdal influence. Concluding a list of several authorities was this notation: “And see generally, An American Dilemma (1944).”

Education is the most important function of state and local governments? The mind reels.

Having moved away from equality of tangible things and into the realm of psychology and sociology, the Supreme Court effected a change in the judicial climate. Separation of the races by neighborhood — which, of course, led to a different racial makeup in each school — became the equivalent of separation by law. And the federal courts, whether to eliminate the “achievement gap” between black and white students, or to compensate for the sins of past discrimination, mandated forced busing to achieve “racial balance.” In New Castle County, Delaware, in 1978, Federal District Court Judge Murray Schwartz ordered a busing plan into effect that Supreme Court Justice William Rehnquist described as “draconian.”

Well before this, all the Wilmington schools had opened to black students — the elementary schools in 1954, the secondary schools in 1955, and the high schools in 1956. Of course, the schools were neighborhood schools and no more “racially balanced” than the neighborhoods where they stood. But the intellectuals were lurking — they had discovered a social ill and thought they had a cure. In 1966, sociologist James E. Coleman published a report entitled Equality of Educational Opportunity. In it, he maintained that inner-city black children, however undisciplined, when seated among middle-class white children, would accept the disciplined ways of the white kids as their own. And eventually, because of their increased discipline, the achievement levels of the black kids would equal those of the white kids. Coleman, whose undergraduate work was in chemical engineering, had gone on to study sociology at Columbia University. He was a true social engineer. But alas, here he miscalculated the stresses and strains — when busing to achieve “racial balance” was undertaken, the results were often the opposite of what he had predicted. The black kids maintained their rebellious ways, and the racially balanced classrooms assumed the chaotic quality of inner-city schools. Perceiving the threat to their children’s wellbeing, the white middle-class parents did a gallopade beyond the horizon. And perceiving this white flight, Professor Coleman did, as they say, a one-eighty, renouncing his report in 1975.

But by that time, the integrationist choo-choo train had gotten up plenty of steam. Forced integration had become an accepted social remedy — and a compensation for past injustice. And in New Castle County, later government actions were seen as compounding the past injustices. One such action was the state’s Educational Advancement Act of 1968, meant to consolidate its smaller school districts without referendum. It exempted three of the bigger districts, including that of predominantly black Wilmington. Thus, complainants saw the Act as resegregating the public schools. Other actions of similar effect were the construction of new highways and subsidized housing, which supposedly encouraged white flight, while maintaining urban-black isolation. The earlier idea that “discrimination was forbidden, but integration was not compelled” was overwhelmed by the felt need to make amends.

Alas, Coleman miscalculated the stresses and strains when busing to achieve “racial balance” was undertaken.

And making amends meant creating new victims. Eleven school districts in northern New Caste County were compressed into one. The students were hauled hither and yon to create the same ratio of black to white in every school. Some traditional high schools in the county, including Conrad and P. S. duPont, were closed and their mascots and other memorabilia thrown away. Two other high schools, Wilmington and Claymont, eventually closed for lack of students — no one wanted to attend. Students spent as much as three hours a day on buses, and participation in after-school activities became difficult, if not impossible. And the busing went on and on — the city kids rode for as many as nine years to the suburbs, and the suburban kids rode for as many as three years to the city. Thus, the busing plan, known as the “nine-three plan,” made every school day a nail-biter for many parents.

By 1993, the State Board of Education had had enough — it petitioned the Federal Court to declare that unitary status he been achieved — in other words, to kindly throw out the busing mandate. But an organization called “The Coalition to Save Our Children” arose with a consent order. The order listed conditions under which the board would be spared further litigation. These included the mandatory monitoring of the schools’ racial makeup with certain quotas to be maintained, “conflict management” that blamed the teacher for disruptive students, “culturally sensitive” examinations for minority students, programs for teachers in “cultural awareness,” a $1.6 million-dollar appropriation for alternative programs for “seriously disruptive” youths, and — believe it or not — a lower passing score for minority-teacher certification. There were other conditions, of course, all meant to assuage the problems caused by previous efforts at educational salvation.

The Delaware legislature was having none of this sort of nonsense, and in 1996, Federal District Court Judge Sue Robinson ended the busing mandate. In the year 2000, the legislature passed the Neighborhood Schools Law. Once again, the kids could go to school close to home. But of course, neither the court decision nor the new law could restore the missing high schools. The old Wilmington High School building is now occupied by the Charter School of Wilmington and something called the Cab Calloway School of the Arts. This last is a so-called magnet school, which brings me to the fate of Henry C. Conrad High School. Having withstood the strife as Conrad Middle School, the building was closed for renovations in 2005 and reopened in 2007 — transformed into the Henry C. Conrad Schools of Science. This latest Conrad emphasizes biotechnology and health sciences for students from grades six through twelve.

Students spent as much as three hours a day on buses, and participation in after-school activities became difficult, if not impossible.

But wait a minute — schools of the arts? schools of science? What’s going on here? These schools present specialized curricula — aimed at whom? The answer is obvious, of course, and most people are either too polite to laugh, or have little knowledge of recent history. The magnet schools are meant to attract the same middle class that fled the forced busing mandates — and thus restore “racial balance”? Well, no — the term has been replaced by “diversity,” but the absurdity of it all is still manifest. The magnet school turns diversity into an end with the curriculum as the means. It represents yet another theory to undo the mess created by the previous theory — there will always be another theory, and another, and another.

There was a time when the traditional schools worked reasonably well — even in the inner-cities. They taught and trained young people from all walks of life, according to their individual aptitudes and ambitions. But that was before the theorists took over, before real children became “the child,” before “look-speak” replaced phonetics, before the “new-math” replaced the multiplication table, before sex education became a sine qua non — and, of course, before “diversity” was equated with “racial balance.” All these later wonders sprang from the minds of the theory class, those individuals, mainly academics, whose reputations are built by outdoing one another in imagination, often while reality grows small in the rear-view mirror. Why couldn’t sociologists have predicted the effects of forced busing — if they truly understood human society? Perhaps, in the interest of education, the federal government should stop financing the theory class.

The magnet school turns diversity into an end with the curriculum as the means. It represents yet another theory to undo the mess created by the previous theory.

One cure for the problems of public education — a system of vouchers — has been widely advocated, especially by the late Professor Milton Friedman. These money-substitutes would give all parents a choice of private schools and allow market forces to improve the quality of education. But in such a system, the government could still get one foot in the door of every schoolhouse. Suppose some future Obamacrat decides that the government won’t cash the vouchers unless the schools presenting them have a unionized staff, or a specific ethnic balance, or accreditation by the same old educationist bureaucracy? With such restrictions, the quality of education could easily decline to its pre-voucher level. You say the public wouldn’t stand for it? Well — they’ve recently stood for things equally bad.

As for Supreme Court Justices, their lower-court colleagues, and lawyers in general — they do their best work when they address themselves to matters of law. When they develop that peculiar eczema identified by Mencken — the itch to save mankind — they become dangerous.

* * *

SOURCES

“An American Dilemma.” Wikipedia. http://wikipedia.org/wiki/An_American_Dilemma:_The_Negro_Problem_and_Modern_Democracy
Barzun, Jacques. The Barzun Reader. Ed. Michael Murray. New York: Harper Collins, 2002.
Berger, Raoul. Government by Judiciary: The Transformation of the Fourteenth Amendment. 2nd Ed. Fwd. Forrest McDonald. Indianapolis: Liberty Fund, 1997. http://oll.libertyfund.org/index.php?option=com_staticxt&staticfile=show.php%3Ftitle=675&itemid=99999999
Brown v. Board of Education of Topeka. 347 U.S. 483. Legal Information Institute, Cornell University Law School. www.law.cornell.edu/supct/html/historics/USSC_CR_0347_0483_ZO.html
Delaware State Board of Education v. Evans 446 U.S. 923 (1980). https://supreme.justia.com/cases/federal/us/446/923/
Friedman, Milton, and Rose Friedman. Free to Choose: A Personal Statement. New York: Avon Books, 1981.
“Gunnar Myrdal, Analyst of Race Crisis, Dies.” The New York Times, 18 May 1987. www.nytimes.com/1987/05/18/obituaries/gunnar-myrdal-analyst-of-race-crisis-dies.html
“Gunnar Myrdal.” Wikipedia. http://en.wikipedia.org/wiki/Gunnar_Myrdal
Hannah-Jones, Nikole. “Making Sense of Magnet Schools.” The News and Observer (Raleigh): The Durham News. 5 Nov. 2005, p. 3.
“Henry C. Conrad High School.” http://conradhighschool.com/
Hofstadter, Richard. Great Issues in American History: A Documentary Record. Vol. II, 1864–1957. New York: Vintage Books, 1958.
Hube. “Desegregation Consternation.” The Colossus of Rhodey. 15 April 2007. http://colossus.mu.nu/archives/221158.php
Johnson, Paul. A History of the American People. New York: Harper Perennial, 1999.
Kakaes, Konstantin. “Why Johnny Can’t Add Without a Calculator.” Slate, 25 June 2012. www.slate.com/articles/technology/future_tense/2012/06/math_learning_software_and_other_technology_are_hurting_education_.html
Lamb, Kevin. “Race and Education: An Interview with Professor Raymond Wolters.” VDare.com. 25 March 2009. www.vdare.com/articles/race-and-education-an-interview-with-professor-raymond-wolters
Lewin, Tamar. “Herbert Wechsler, Legal Giant, Is Dead at 90.” The New York Times, 28 April 2000. www.nytimes.com/2000/04/28/us/herbert-wechsler-legal-giant-is-dead-at-90.html
Miller, Andrea, and Antonio Prado. “Conrad High School, the Jewel of Woodcrest.” Hockessin Community News, 21 Oct. 2008. www.hockessincommunitynews.com/article/20081021/News/310219937
___. “Remembering Claymont High School: First White School in Delaware to Admit Black Students.” Hockessin Community News,21 Oct. 2008. www.hockessincommunitynews.com/article/20081021/News/310219946
 ___. “A Sad Day When P. S. duPont Became an Elementary School.” Hockessin Community News, 27 Oct. 2008. www.hockessincommunitynews.com/article/20081021/News/310219938
Prado, Antonio, and Andrea Miller. “The 40-Year Legacy of Evans vs. Buchanan: A Struggle Over Education, Race, Power.” Hockessin Community News, 21 Oct. 2008. www.hockessincommunitynews.com/article/20081021/News/310219952
___. “Wilmington High School Red Devils Celebrate School and Mourn Its Loss.” Hockessin Community News, 27 Oct. 2008. www.hockessincommunitynews.com/article/20081021/News/310219949
Roberts, Sam. “Marva Collins, Educator Who Aimed High for Poor, Black Students, Dies at 78.” The New York Times, 28 June 2015. www.nytimes.com/2015/06/29/us/marva-collins-78-no-nonsense-educator-and-activist-dies.html
Taylor, Linda Schrock. “Short-Changed by the New-New Math.” LewRockwell.com, 11 March 2003. www.lewrockwell.com/2003/03/linda-schrock-taylor/why-johnny-still-cant-add/
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___. The Moral Sense. New York: Free Press, 1997.




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Antonin Scalia, R.I.P.

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This week Liberty's editors provide two different takes on Justice Scalia's passing. Stephen Cox's elegy is here. - See more at: http://libertyunbound.com/node/1519#sthash.dl79qO6R.dpuf
This week Liberty's editors provide two different takes on Justice Scalia's passing. Stephen Cox's elegy is here. - See more at: http://libertyunbound.com/node/1519#sthash.dl79qO6R.dpuf

This week Liberty's editors provide two different takes on Justice Scalia's passing.
Andrew Ferguson speaks ill of the dead here.

Justice Antonin Scalia, who died on February 12, was a person of intransigent mind, with a well-justified contempt for the intellectual weakness and silliness of his professional colleagues. He was the greatest influence on the Supreme Court in its present period and the Court’s best writer since, perhaps, the 1930s. He was devoted to the idea that the Constitution means what it says, not what a momentarily prestigious legal philosophy thinks it should say. He tried to interpret the Constitution according to its actual words, not according to the results he himself might have preferred. For that reason, his passing is a disaster for everyone who believes in constitutional, and therefore limited, government.

Among other good things, Scalia:

  • Attempted to keep organs of the executive branch from becoming “junior varsity Congress[es],” establishing rules, procedures and “guidelines” that had the force of law.
  • Spoke for the Court in denying government the power to circumvent the Constitution’s search-and-seizure provisions by the use of new electronic methods.
  • Spoke for the Court in denying government the right to use claims of “hate speech” to circumvent constitutional rights.
  • Spoke for the Court in maintaining Americans’ rights to gun ownership in the crucial Heller case, and dissented forcefully when the Court declined to consider more advanced Second-Amendment cases.
  • Spoke for the Court in maintaining the right to sell ultraviolent video games.
  • Memorably opposed the majority decisions upholding Obamacare: “The Court holds that when the Patient Protection and Affordable Care Act says ‘Exchange established by the State’ it means ‘Exchange established by the State or the Federal Government.’ That is of course quite absurd, and the Court’s 21 pages of explanation make it no less so.”
  • In connection with the same decisions, stripped the mask of impartiality from his colleagues’ sorry faces: “Perhaps the Patient Protection and Affordable Care Act will attain the enduring status of the Social Security Act or the Taft-Hartley Act; perhaps not. But this Court’s two decisions on the Act will surely be remembered through the years. . . . And the cases will publish forever the discouraging truth that the Supreme Court of the United States favors some laws over others, and is prepared to do whatever it takes to uphold and assist its favorites.”
  • Provided the deciding vote for freedom and fairness in eminent domain, in the Williamson Country Regional Planning case.
  • Was strongly influential in arguing against the use of “balancing act” criteria in decisions about constitutional rights.
  • Was strongly influential in arguing against the use of “legislative history” as a way of qualifying or reversing the explicit meaning of statutes.

This list might be greatly extended. I could also compile a list of Scalia’s inconsistencies and blindnesses. But the fact is that for decades Scalia was the intellectual leader of the Court, whenever it admitted of any intellectual leadership, and the best bulwark of constitutionalists against the ability of modern-liberal judges to make the constitution what their ideology thinks it ought to be.

Scalia was an unembarrassed believer in the idea that the Constitution should be interpreted in the same way as any other text — by reading what is there and not what we want to be there.

Many libertarians don’t like Scalia, because of his particular rulings. So be it. But the disagreement often goes deeper. It goes to the philosophy of interpretation that many libertarians maintain. They think the Constitution was written to express broad principles of individual freedom and that its wording must always be interpreted in that light. Like modern liberals, who frequently refer to the Constitution as a “living entity,” the meanings of which are not bound by its actual wording, they want judicial decisions to embody a wide range of rights (i.e., a right to “privacy”) that never come close to being mentioned by the Constitution. If you want a judge to find them there, how can you object when the judge finds a lot of other things that aren’t there, and enforces them? This is what modern liberal jurists have been doing for several generations, and libertarians should not try to wish it away by appealing to essentially the same philosophy.

It was in his opposition to such ideas that Scalia truly distinguished himself. He was an unembarrassed believer in the idea that the Constitution should be interpreted in the same way as any other text — by reading what is there and not what we want to be there. He knew he would be despised as unsophisticated, at best, and as a mere advocate of his own bigotries, at worst. He repaid scorn with scorn — and who would not be scornful of the sophistries of Chief Justice Roberts, cynically arguing for the constitutionality of Obamacare immediately after he had argued for its unconstitutionality, or the inanities of the four modern liberal justices, who never saw a modern liberal law they didn’t like? What reflective person would deny Scalia’s contention that "the risk of assessing evolving standards is that it is all too easy to believe that evolution has culminated in one's own views"? When Scalia joined the Court, this idea, though obvious, had been evaded for far too long, with devastating effects on the constitution’s system of limited government. Scalia’s aggressive advocacy of “textualism” gave it new importance, made its intellectual power impossible to ignore.

The truth is that the Constitution, if interpreted in the light of what it says, not of the pleasant emanations we sometimes feel radiating from its penumbra, would give us a world incomparably more libertarian than the one we currently inhabit. It would not be a world governed solely by principles of individual right, because the Constitution was not written solely to do that. But it would be a world so free that it would be a pleasure to suggest the few revisions that would complete the picture — instead of spending immense amounts of time and money fighting off attacks by modern liberals and conservatives who believe in legislating from the bench. And this is what people who care about individual freedom will now have to do, during the long, intellectually dismal period between Justice Scalia’s death and the confirmation of his successor.




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