But on the Other Hand, I'm Scared

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.

Indeed.

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.

SO HOW DO YOU INTERPRET THE CONSTITUTION, ANYWAY? Part I

Jeffrey Toobin has a long profile of Chief Justice John Roberts in the New Yorker which you can read here. And when (if) you do, and if you can get past the just being happy with or pissed off at Roberts, you might find yourself actually thinking about what he does and how and why and, ultimately, whether it makes some sense. As I asked, "How do you interpret a constitution?"

Here, you may recall, is what Judge John Roberts, then-supplicant for the job of Chief Justice, told the Senate Judiciary Committee:

My personal appreciation that I owe a great debt to others reinforces my view that a certain humility should characterize the judicial role. Judges and Justices are servants of the law, not the other way around. Judges are like umpires. Umpires don’t make the rules, they apply them. The role of an umpire and a judge is critical. They make sure everybody plays by the rules, but it is a limited role. Nobody ever went to a ball game to see the umpire.

And here's how Toobin describes that humility in practice:

The kind of humility that Roberts favors reflects a view that the Court should almost always defer to the existing power relationships in society. In every major case since he became the nation’s seventeenth Chief Justice, Roberts has sided with the prosecution over the defendant, the state over the condemned, the executive branch over the legislative, and the corporate defendant over the individual plaintiff.

I'm not particularly interested here in whether Roberts got it right in those cases. (Mostly, but not always, I think he didn't.) Rather, I'm interested in how he got there, and whether his description of the job of Justice (which is, frankly, different than the job of judge) is accurate.

So let's start with the analogy itself. First of all umpires are not just judges. They're also police and juries. They do decide when the law applies and what it means, which is what judges do. But they also enforce the rules, which is what the police do. And they decide the facts, which is what juries do.

Supplicant Roberts, was really talking about umpires as jurors, not as judges. Balls and strikes are what they are. The runner is safe or out. Either the ball was caught or it was trapped. The ball was or wasn't fair. The ump may call 'em as he sees 'em, but he either sees 'em right or he doesn't. And that's what juries do. They decide who's telling the truth, whose memory is reliable, which expert is more credible, and ultimately, whether whatever the question is has been proved to their satisfaction by whatever standard of proof is laid down for that issue. On those sorts of calls, perception is king. They may get it right or wrong in some philosophically objective sense, but it's their call and there's supposed to be a right answer. You want the facts, eyesight matters. Legal training doesn't. Trial court judges sometimes act as factfinders, but it's not their primary job. Supreme Court Justices almost never take that role.

Umpires also serve as cops. They break up fights, they evict the manager. They tell the batter to stop scratching his balls and get back in the box. They actually enforce the rules. Judges and Justices are never supposed to do that. And, frankly, except for those pistol packin' judges in some old westerns, they pretty much can't. President Jackson, angered by the Court's rulings in the Cherokee removal cases, is reputed to have said, "John Marshall has made his decision, now let him enforce it," and he went on to defy the Court. When the Warren Court said to integrate the schools, it happened only because the President sent in the National Guard.

But umpires are like judges, even Justices, when they interpret the rules and decide which ones apply when. Is this an infield fly situation? When the ball bounces out of the fielder's glove while he's reaching in to get it, did he intentionally release it? Where's the behavioral line that justifies tossing the manager? Those aren't things that the rule book can define precisely so the careful ump who doesn't need glasses can get them right. Nor are they rule enforcement. They are, rather, judgment calls about what rules apply and whether and when. When they're making those kinds of decisions, umpires are like judges, or Justices. But pretty much only then.

Now, let's think about judges and Justices. Some things, maybe most, really are pretty clear and simple. When you brush away the metaphorical (and literal) dust from those thousands of pages of transcripts and briefs and look at what the Constitution or the U.S. Code actually says, well, what looked troubling and difficult may not be. (As of a couple of weeks ago, almost 40% of the cases decided by the Court this years were decided unanimously; not quite 23% were those troubling 5-4 decisions. You can find those statistics and more here.)

Except, you know, the guts of the job, the parts we (all of us) care about, deal with the things that aren't simple. When the Court agrees 9-0, there's probably not much real controversy about what the law is, and the different analytical methods the Justices might use to get there won't matter much except for purposes of parlor games. Method does matter, though, in the things that are hard, in dealing with the stuff that really can have more than one right answer.

Take the First Amendment. It says, in part, that "Congress shall make no law . . . abridging the freedom of speech." Justice Black took that literally, famously saying, "'No rule' means no rule." But even he didn't really mean that, and nobody else on the Court has, either. Everyone agrees there are some limits. That Holmes chestnut from Schenck v. United States about how "[t]he most stringent protection of free speech would not protect a man falsely shouting fire in a theater and causing a panic" comes to mind. But everyone also agrees that it's not just Congress that's limited by the First Amendment. It applies broadly to all government entities.

It's not that a Justice deciding the application of the First Amendment has to do something more than an umpire deciding balls and strikes. Regardless of how he makes the decision, the umpire knows the technical boundaries of the strike zone. He just has to decide whether the ball was in or out when it crossed the plate. The Justice is doing a different sort of thing. The Justice has first to figure out what the First Amendment means in the particular context. And that's often not self evident. What is "the freedom of speech"? What does it mean to "abridge" it? What limits, if any, are there on "no law"? What do we do with that word, "Congress"? Answer all those questions and maybe then you can decide whether the particular speech is protected.

In 1969, three students in Des Moines, Iowa, defied their school principal and wore black armbands to protest the Vietnam war. In a case called Tinker, the Supreme Court ruled that students in public schools have free speech protection, too, as long as their speech (black armbands protesting the Vietnam war in that case) wasn't disruptive. Justice Fortas, writing for the Court, said that students do not "shed their constitutional rights to freedom of speech or expression at the schoolhouse gate." Justice Black dissented. School is different, he said. (The Court's opinions are here.)

In 2002, the Olympic torch was being paraded through Juneau, Alaska, and one school dismissed students and said they could attend the parade. Joseph Frederick and a couple of friends did, and while there, they unfurled a banner saying, "Bong Hits 4 Jesus." Frederick was suspended. Five years later, the Supreme Court weighed in. In many respects a typical free speech case, Morse v. Frederick was decided in a 5-4 vote with the so-called liberals on the losing side. Writing for the Court, Roberts said that it was proper for a school to “restrict student speech at a school event, when that speech is reasonably viewed as promoting illegal drug use.” Justice Thomas agreed, but said the court should have gone further, reversing Tinker and declaring that students have no free speech rights. (The Court's opinions are here.)

OK, we've got several possible answers to free speech for students, and each has something to recommend it as the best way to understand what the First Amendment means and how it applies.

1. There is free speech in schools, no rules. Period.
2. There is free speech in schools, and the limits are exactly the same as the limits on out-of-school speech by adults (whatever those limits are).
3. There is free speech, but it can't be disruptive (sort of an expansion on that fire in a crowded theater, but within the same sort of framework). That's Tinker.
4. There is free speech, but it can't be stuff the school wishes you wouldn't say. That's maybe Morse.
5. There's no such thing as free speech in schools.

Option 1 is easy. If you believe that the First Amendment isn't limited to protection against acts of Congress (and pretty much everyone does), then that's what it says, right? There shall be "no law . . . abridging . . . freedom of speech." But nobody, not even the most rigid believer that the Constitution's language controls regardless of what anyone might think about good sense or the intent of the framers believes in Option 1. Why? Well, among other things, "the freedom of speech" might be different from "freedom of speech." There are those things (obscenity and fighting words, for instance) that simply don't qualify, we're told, as First Amendment protected speech, and the article "the" is part of the reason. For another, nobody - at least nobody who's going to be politically successful enough to become a judge or Justice - is going to give a pass to "falsely shouting fire in a theater and causing a panic." And unless you think the framers were fools, you'd probably agree that they didn't mean to protect that particular speech.

Option 2 seems simple also. Why should the fact of school be relevant? Either you have a right or you don't. If juveniles have a right of free speech (and there's certainly nothing in the words of the First Amendment that indicates they don't) then why should it be special? And if free speech is available in school, why should it be limited beyond its limits on the outside?

Option 3 recognizes that school is different. School is intended to be a place where the state inculcates certain things. That's the whole idea, after all, behind compulsory education. So if you disrupt the enterprise, then you're at odds with the very reason for its existence. But schools are trying to inculcate what's at the core of the First Amendment: political awareness. Free speech with some minimal sort of restraint does that. So maybe Tinker got it right.

Option 4 takes up where 3 leaves off. If the point of school is to inculcate, why shouldn't it be to inculcate the behavioral rules the state wants us to follow? And if that's so, and if we acknowledge that society generically believes drug use is a bad thing (Bong Hits 4 Al Quaeda?), well then, shouldn't schools, in order to do their job, be able to control against speech that encourages misconduct. Hey, to bong or not to bong may be a political debate, but public schools aren't debating societies. They're designed to teach and the school gets to decide the curriculum. You want to advocate drug (ab)use, do it on your own time. Think of it as a restriction not on speech itself but on the time, place, and manner of speech - which the law has long said is OK. So maybe Morse got it right.

Option 5 has a legitimate pedigree, too. As Justice Thomas explained in Morse, there were no such things as public schools when the First Amendment was adopted. As public schools developed, nobody thought students had free speech in them. So where'd that right come from, anyway? Bunch of pointy-headed liberal judges just made it up? Out of whole cloth? It's nonsense.

Every one of those positions can be defended by the language, the history, and the fundamental goals of free speech.

For what it's worth, I think Option 2 is the right one. We'll talk about why that's so another time.