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/
White, Adam. “The Lost Greatness of Alexander Bickel.” Commentary, March 2012.
Wilson, James Q. Bureaucracy: What Government Agencies Do and Why They Do It. New York: Basic Books, 1989.
___. 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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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.

Antonin Scalia, longtime associate justice of the Supreme Court of the United States, was a talented writer whose position afforded him innumerable chances to wield his pen in forceful argument for his often curiously shifting but nonetheless deeply felt views. He was also by some distance the most public justice, often giving speeches laying out his judicial philosophy and thoughts on upcoming jurisprudence, sometimes to the point that he had to recuse himself from a case.

Scalia’s pompous blowhardity made him a gleefully divisive figure in the highest court of a land drifting ever farther away from his own conservative, masculinist Catholicism. After Harvard Law and a little while in private practice, Scalia taught for several years at the University of Virginia Law School, and would later return to academia at the University of Chicago. His own jurisprudence bore the hallmarks of his time as a teacher: his opinions—which, unlike many justices, he did not largely hand off to his passel of clerks—were didactic, condescending, and all-too-aware of the distance between his enrobed augustness and all else outside the cloakroom.

As a public figure, Scalia devoted himself above all else to the preservation of executive-branch powers, whether actually enumerated or distantly dreamed. He scarcely met a presidential prerogative he didn’t like, whether the right to order the torture of supposed enemies, deny due process at will, or pursue “interstate commerce” into the individual home. Despite his famed “faint-hearted originalism,” Scalia was never far from trampling over the Ninth and Tenth Amendments in the service of executive might. Even when his decisions favored a broadly libertarian policy, such as eliminations of gun control or overturnings of illegal searches, they often did so in a way that declined to limit future exercises of the power of the state. More often, though, when he looked to the Constitution, he found justifications for his own predilections to expand use of the death penalty even to the mentally disabled, criminalize homosexual acts, and sign onto four separate dissents against gay marriage.

Scalia devoted himself above all else to the preservation of executive-branch powers, whether actually enumerated or distantly dreamed.

It is, in one sense, ironic that the first response of Republican legislators to the death of their originalist hero was to defy constitutional statements clearly allowing the sitting president, no matter how lame a duck he might be, to suggest a replacement for the fallen justice. But it’s certainly not surprising: in this, the GOP is simply following Scalia’s own example (as well as that of basically every other politician), honoring and vociferously upholding the Constitution when it supports their own tribal position, and ignoring it as soon as it suits them to do so.

There remains a great deal to sort out in the wake of Justice Scalia’s sudden death. Any cases for which decisions have not been rendered, even those which have been argued and voted upon, will not take Scalia’s vote into account. In the short term, this means public unions nationwide get a reprieve from right-to-work measures, and President Obama’s climate change plan is likely to survive a little longer. In the medium term, it means a nasty confirmation fight, as Obama tries to get a justice though a Republican Congress with no intention to allow one. (Probably the worst case here, actually, is a compromise candidate in the form of a socially moderate, tough-on-crime-and-terroists type, à la David Barron.) In the long run, the court has lost its most entertaining and most self-consciously intellectual jurist. We could do with a few less like him.



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The Honorable Profession of Spying?

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Americans love to hate lawyers, and I admit to having told a shark joke or two in my time. But many attorneys deserve our praise for their wisdom, their trust, and their integrity. James Donovan was one of them. Not only did he risk his own reputation to defend a despised Soviet spy, but he successfully negotiated the exchange of that spy for one of our own spies five years later, and then went on to negotiate the release of thousands of prisoners in Cuba after the Bay of Pigs disaster, exchanging them for food and medicine that would benefit the Cuban people rather than for money that would line Castro’s pockets. Bridge of Spies tells the story of his most famous exchange: convicted spy Rudolf Abel, a Soviet intelligence officer, for downed American pilot Francis Gary Powers.

The film opens on Rudolf Abel (Mark Rylance), quietly painting a self-portrait in his small Brooklyn apartment. Abel might be a dangerous Soviet spy, but in appearance he is a sad sack who suffers from post-nasal drip. His mouth seems permanently downturned in a frown, and he walks with a determined but plodding shuffle. He speaks only when absolutely necessary, and not at all for the first 15 minutes of the film, as we follow him to an information “drop.” Even when American agents storm through his door, he remains unruffled and quietly cleans his paint palette. Later, when Donovan observes, “You don’t seem worried,” Abel shrugs pragmatically, “Would it help?”

It is because of the ruling in Abel’s case that the US now maintains a prison on Cuban soil — in order to avoid giving “enemy combatants” those same rights to representation and a speedy trial.

Before continuing this review, I have to say a word about Rylance, whom many consider the most gifted stage actor today. I am one of them. Liberty readers may recognize him from the TV miniseries Wolf Hall, where he plays Thomas Cromwell. Trained at the Royal Academy of Dramatic Arts and a performer with the Royal Shakespeare Company, Rylance was the founding artistic director of the New Globe Theater and has eclipsed even Kenneth Branagh as the premier Shakespearean actor of our time. But he is also a master of comedy and modern plays. Over the last decade or so he has established a pattern of creating a role for the West End in London and then bringing it to Broadway for the following year. I have seen all those plays, some more than once. He is a brilliant stage actor.

But acting for the stage is different from acting for the screen. On stage, the actor is smaller than the audience; he has to “play large” in order to fill the theater and reach the balcony. Emotions are conveyed with exaggeration and with the whole body, not just the face or the eyes. By contrast, a movie screen is maybe 30 feet high and 70 feet wide. Every twitch of the finger and blink of the eye is magnified, so acting has to be subtle and nuanced. Rylance has not performed in many films, but not to worry. He makes the transition to screen brilliantly.

Several attorneys refuse to defend Abel, worried about how it might affect their reputations and their families’ safety. But Jim Donovan (Tom Hanks) accepts the case. He believes that everyone in America, not just citizens, deserves the same protections under the Constitution, and that “American justice is on trial,” with the whole world watching to see how this foreign spy will be treated. Donovan’s nobility reminds me of Atticus Finch, defending the African-American Tom Robinson despite his community’s outrage and threats. “What makes us Americans?” Donovan asks Agent Hoffman (Scott Shepherd) rhetorically, when Hoffman expects Donovan to violate client-attorney privilege and tell the CIA what he knows. “It’s the rule book — the Constitution. That’s what makes us Americans.” He defends Abel all the way to the Supreme Court. Indeed, it is because of the ruling in Abel’s case that the US now maintains a prison on Cuban soil — in order to avoid giving “enemy combatants” those same rights to representation and a speedy trial.

To my mind, Donovan’s ethics deserve some scrutiny, however. For example, when a young boy asks him why he is defending the spy, he responds, “Because it’s my job,” as though that’s reason enough. But didn’t Nazi soldiers give the same excuse? Donovan also expresses admiration for Abel’s work ethic and steadfastness in not revealing any secrets, calling him “honorable.” And maybe he is. Such fortitude does reveal a strong character. But it also reduces spying to the level of a football game: just do your job, and do it with integrity, and we can all go home admiring one another. But defending a country, an ideology, and a way of life is not the same as defending a goal line, and an enemy is not the same as an opponent.

Meanwhile, the Americans have spies of their own, and they are flying over Russia, taking pictures from 70,000 feet above the earth, using secretly developed camera equipment and a new top-secret plane — the U2. The pilots are told that if they are attacked they must detonate the plane and kill themselves rather than allow the Russians to have the information. Nevertheless, pilot Gary Powers (Austin Stowell) manages to get himself captured, and Donovan is asked to broker a deal to get him home. (For dramatic effect the film gives the impression that these events take place at the same time, but they were actually five years apart.) Donovan’s dogged determination to negotiate the deal so that everyone comes out alive fills the remainder of the film.

Defending a country, an ideology, and a way of life is not the same as defending a goal line, and an enemy is not the same as an opponent.

Despite our knowing the outcome in advance, the tension of the film is relentless, particularly in several exterior scenes set in East Berlin. The Wall is brand new and the German people are desperate to escape. Hungry young Germans surround Donovan like a pack of wolves, while others climb fences or drop from windows into the West in their eagerness to escape. These scenes belie the stance of moral equivalency that Donovan seems to adopt. All things are decidedly not equal between the two superpowers, no matter how honorably Abel conducts himself in maintaining his oath of secrecy.

Another powerful scene occurs as Abel’s trial begins, with a montage that leads from the bailiff’s “All rise” to school children rising to recite the Pledge of Allegiance to the rising of a mushroom cloud in a schoolroom documentary about the atomic bomb. Spielberg has always been an artist, but in this film he surpasses himself. Cinematographer Janusz Kaminski, who also worked with Spielberg in the award-winning WWII films Saving Private Ryan and Schindler’s List, deserves credit for much of the film’s success.

Bridge of Spies is the first film Spielberg has made without John Williams providing the soundtrack since The Color Purple in 1985, and while I’m a fan of Williams’ distinctive style, I think Thomas Newman’s darker tones are more appropriate to this film’s story.

Bridge of Spies is the first of the serious Oscar contenders to be released this year. Hang onto your popcorn — I think it’s going to be a great season.


Editor's Note: Review of "Bridge of Spies," directed by Steven Spielberg. DreamWorks, Fox 2000, Reliant, 2015. 141 minutes.



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Internal Deliberations

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Shutdown Strategery

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One from Column A, One from Column B

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Bench Bugs

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