Some years ago, at a Constitution Day event on the campus of the University of Toledo, they'd arranged for a variety of folks to give three minute talks on the amendments constituting the Bill of Rights. I'd been asked, as I recall, to talk about the 8th Amendment. That's the one that prohibits cruel and unusual punishment, the one that lawyers and the courts use to set the boundaries of the death penalty.
For whatever reason, and I didn't discover this until I arrived just a couple of minutes before things got rolling, nobody had been assigned to speak about the 3rd Amendment. I wasn't too surprised. The 3rd is widely ignored, because it addresses what seems today to be a non-issue. Ellen Alderman and Caroline Kennedy, in their book In Our Defense: The Bill of Rights in Action call it "the forgotten amendment." They write,
The Third Amendment is a reminder that although the Constitution was "framed for ages to come and . . . designed to approach immortality," it was also written to address real and immediate grievances suffered by its authors.
No Soldier shall, in time of peace be quartered in any house, without the consent of the Owner, nor in time of war, but in a manner to be prescribed by law.
The Quartering Act of 1774 authorized the quartering of British troops wherever. And wherever included the homes of the colonists. Yes, that's as deeply offensive today as it was then, but it's just not much of a real world concern in the US of the 21st Century.
Still, I jumped into the breach and asked if I could take a couple of minutes to riff on the 3rd Amendment before it came my term to speak about the 8th. See, I'm a fan.
What I like so much about the 3rd Amendment is it's absolutism. No quartering in private homes in peacetime. Even in time of war it has to be lawful, but none at all in peacetime unless the owner invited them in.
Rich or poor, you can bar the door.
The government simply cannot invade.
Besides, it leads so naturally into the Fourth Amendment.
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.
It's those amendments, supported by pieces of others, that make the basic point. There are matters with which the government doesn't get to meddle.
Justice Louis Brandeis, finding in the 5th Amendment's prohibition against compelled self-incrimination an extension of the principles of the 4th, explained it as well as anyone.
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. And the use, as evidence in a criminal proceeding, of facts ascertained by such intrusion must be deemed a violation of the Fifth.
I'm always saddened by the fact that Brandeis wrote that ringing paragraph not for the Court in Olmstead v. United States but in dissent.
All that is prelude to the point I want to make here. To get there more directly, consider the decision DC Court of Appeals in Electronic Privacy Information Center v. Department of Homeland Security, a lawsuit challenging the Scope part of Scope and Grope on Fourth Amendment grounds. (Yes, I'm oversimplifying again; it doesn't matter here.) The court balanced intrusiveness against need, and it concluded that need won.
[W]hether an administrative search is “unreasonable” within the condemnation of the Fourth Amendment “is determined by assessing, on the one hand, the degree to which it intrudes upon an individual’s privacy and, on the other, the degree to which it is needed for the promotion of legitimate governmental interests.” United States v. Knights, 534 U.S. 112, 118–19 (2001) (internal quotation marks omitted).
That balance clearly favors the Government here. The need to search airline passengers “to ensure public safety can be particularly acute,” Edmond, 531 U.S. at 47–48, and, crucially, an AIT scanner, unlike a magnetometer, is capable of detecting, and therefore of deterring, attempts to carry aboard airplanes explosives in liquid or powder form. On the other side of the balance, we must acknowledge the steps the TSA has already taken to protect passenger privacy, in particular distorting the image created using AIT and deleting it as soon as the passenger has been cleared. More telling, any passenger may opt-out of AIT screening in favor of a patdown, which allows him to decide which of the two options for detecting a concealed, nonmetallic weapon or explosive is least invasive.
Scott Greenfield quoted that passage yesterday (he actually quoted a bit more than I did), and then pointed out all the things the court left out of its balance. Things like whether either part of Scope and Grope (or even both together) actually advance safety. And if so, how much. Cost v. benefit and all that.
Much has been written by people with actual knowledge on the subject, like security expert Bruce Schneier, explaining at great length and in substantive detail why the TSA's initiatives do not serve legitimate purposes, do not make anyone safer and constitute security theater rather than actual security.
Yet nowhere does the court recognize that there is any question, none, that the scanners or their alternative "patdown" (with or without insertion of gloved TSA hands into vaginas) may be a mere show to flame the public's security fears. For the less cynical, the court didn't even consider that it's a show to pacify the public, and provide a paid occupation that allows adults to touch the nubile breasts of young girls.
It's astounding that the judges, with the opinion written by Judge Douglas Ginsburg, and joined by Judges Henderson and Tatel, swallowed the concept that the TSA knows what it's doing, and what it's doing must be sound because, well, the TSA says so, without any scrutiny whatsoever. What strikes so many of us as monumentally dubious initiatives, conduct that is not only horribly intrusive but largely ineffective in protecting anyone from the exceptionally small risk of harm by terrorists blowing up a plane, is wholly ignored.
Yet the decision goes on to compound the glaring gap in its discussion of balancing. Even if we are to accept at face value, as the court does, that the TSA's grope and scope makes flying safer, the court needs to get its scale tested.
Which is clearly right. But the focus on the screwy balancing to justify Scope and Grope, while altogether appropriate in the context of the decision in EPIC only hints at a larger problem - one Brandeis, too, hinted at, but then Olmstead dates from 1928 when it was less of an issue.
Balancing tests for constitutional rights inherently substitute prejudice for principle.
Consider two examples of how it works (and yes, I'm oversimplifying again).
The Constitution says you can't punish people for their speech. We accept, grudgingly, that the prohibition can't really be absolute since there are situations we can imagine where the speech would be so dangerous and have such immediate, drastic, and foreseeable dangerous consequences (Holmes's example of "falsely shouting fire in a theatre and causing a panic" comes close, though really the theater should be crowded and have too few exits). But then we start to balance it away. And we end up with Morse v. Frederick where the court said that students could be punished by a school for holding up, outside of school, a sign saying "Bong Hits 4 Jesus" because it might suggest that drug use is OK and stopping drug use among kids is really important. That is, you weigh on one side of the scale drugs + kids and on the other side free speech. Free speech loses.
Or you consider drunk driving and the right to travel the roads freely without being stopped by the cops even though there's no reason to think you've done anything wrong, just a random stop at a drunk driving checkpoint. The Fourth Amendment would seem to say no. But you put drunk driver on one side of the scale and freedom from suspicionless government intrusion and the Fourth Amendment proscription against those searches loses every time.
There's no debate here about marginal risks and benefits. The balance is the perceived goal (good) versus the perceived harm (constitutional rights that judges and justices and legislators and presidents and governors and attorneys general and all the lesser officials don't really mind if criminals lose. Hell, they don't care if you lose those rights, or if I do. (They don't want to lose those rights themselves, of course, but they also don't imagine they will.)
Because there's a bad guy lurking around every corner. Because we can't really judge marginal safety, and don't really care to.
The thing about plane crashes and flying planes into the World Trade Center is that they're dramatic. A lot of people die at one time. That doesn't make flying especially dangerous (it's still about the safest way to travel) but it gives fear of flying (not Erica Jong's sort) a political resonance.
The point is that when we balance safety against freedom or crime prevention against freedom or anything we oppose against freedom, freedom is likely to lose. Not because it's really worth less. But because the very idea of balancing is meaningless.
How do we really do the cost-benefit analysis. What's your peace of mind worth? Especially when most of the cost won't be taken from you but from other people?
Want one more example? Read through one of the most disingenuous, racist, wrongheaded opinions of the US Supreme Court, Korematsu v. United States.
Like curfew, exclusion of those of Japanese origin was deemed necessary because of the presence of an unascertained number of disloyal members of the group, most of whom we have no doubt were loyal to this country. It was because we could not reject the finding of the military authorities that it was impossible to bring about an immediate segregation of the disloyal from the loyal that we sustained the validity of the curfew order as applying to the whole group. In the instant case, temporary exclusion of the entire group was rested by the military on the same ground. The judgment that exclusion of the whole group was for the same reason a military imperative answers the contention that the exclusion was in the nature of group punishment based on antagonism to those of Japanese origin.
That's a fancy and legalistic way of explaining that gee, since there are presumably bad Japanese out there, the balance says we should punish all of them. The indians we sent to reservations, you know, the ones we didn't exterminate, they understood.
Balance at your own risk.