Tuesday, January 22, 2013

If You Can Keep It

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.
Those are the stirring, and I'd submit self-evidently correct, words of Justice Louis Brandeis in Olmstead v. United States

Sadly, my submission is demonstrably wrong.  Indeed, it was wrong long before I offered it.  Brandeis penned those words in dissent from the Court's opinion written by the Chief Justice and (stick with me, this is relevant) former President William Howard Taft.  Or maybe it's not wrong.  Maybe it's right that what Brandeis said is self-evidently correct but that the powers that be don't give a shit and therefore regularly choose the incorrect over the correct. Of course, whether the Constitution is routinely misunderstood or ignored or intentionally violated, the effect is the same.

Sunday Barak Obama and Joe Biden swore to defend and protect the Constitution as they took the oaths of their offices and began their second terms as President and Veep.  Monday, they did it again, this time only ceremonially since it was the Sunday ones that counted.  I have no reason to believe that they lied.

Obama's speech was, as his best speeches are, soaring.  Evoking Jefferson and Lincoln and Kennedy and Martin Luther King, Jr.  He offered a vision of alliterative inclusiveness referencing Seneca Falls and Selma and Stonewall.  He talked about all the things that government can and should do.  It was a solid, progressive, liberal agenda he set out.  He quoted the Declaration of Independence and its own statement of what is "self-evident":
We hold these truths to be self-evident, that all men are created equal; that they are endowed by their Creator with certain unalienable rights; that among these are life, liberty, and the pursuit of happiness.
Yet he also omitted.

I'm not a governmental minimalist.  I believe in government.  I think the government can and should do much.  

But I believe, too, in what Brandeis recognized in Olmstead.  I was curious, so I checked and was surprised to discover that I'd only quoted that passage once before in this blog (here). At the time I was talking about balancing tests and how when freedom is put in the balance against much of anything else, freedom loses.  Which is why balancing tests are so pernicious.  They don't really balance.  They simply declare.

The reality, of course, is that all life is a balance.   Certainly all law is.  Forget absolute language.  It doesn't count. (Note that Brandeis spoke of "unjustifiable" intrusion violating the 4th Amendment, allowing a world of wiggle room.)

Yet the ideas, the absolutes of the ideas, that's something different.  And nowhere is the idea better set out than in one partial sentence from Olmstead:
[T]he right to be let alone — the most comprehensive of rights and the right most valued by civilized men. 
You can find recognition of some of that in what Obama said yesterday.  But you won't find much of it, or much support for anything in the Bill of Rights, in what he spoke about or what he advocates or what the agencies of his administration (or the one before or the one before that or the one before that - or, I regret to say, the ones that will follow).

We have decided, as a nation, that civil rights are a good thing (though how far to extend them is deeply contentious).  Civil liberties, on the other hand, are dangerous and can be rejected, ignored, crushed.  Or simply voted down, as the House did in 1995 when it voted against the text of the 4th Amendment 303-121.

Look, it's not absolute.  DOMA may really go down in flames this year.  Same Sex Marriage could become a constitutional right (don't go making wagers; I'm just saying those things are possible).  But if you want the government out of your computer, if you want to enforce the 4th Amendment or the 5th or the 6th or the 8th or the Establishment Clause or Free Press parts of the 1st - well, sure, maybe, if nobody much objects.  But then again, maybe not.  Just ask Bradley Manning.

As something of an aside, but not really, today marks 40 years to the day since the Supreme Court declared in Roe v. Wade that government had no right to prevent a woman from getting an abortion.  Roe was premised on the right to privacy implicit in the Bill of Rights. Or maybe it's properly seen, in Olmstead's terms as protecting against an "unjustifiable intrusion." Anti-abortion laws violate the 4th Amendment.  Either way, the states, the feds, and the courts have been backing away from the decision ever since.

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