The NSA Knows
(Sung to the tune of “Anything Goes” by Cole Porter)
Times have changed,
As I’m sure we can all agree,
Since the Americans rebelled
And they created a country.
They should list several Rights of Man,
Instead of answering the call,
They would be tossed into the can!
In olden days the Fourth Amendment
Was looked on as something sacred,
But Snowden showed,
The NSA knows.
You thought your email, text and Facebook
Were safe from some spook taking a look.
Under your nose,
The NSA knows.
The world has gone mad today
And good’s bad today,
And black’s white today,
And day’s night today,
When warrants today
Are issued today
By secret courts today
And though I’m not a philosopher
I know that it’s unpopular
When you propose,
The NSA knows.
When grandmama whose age is eighty
In night clubs is getting matey with gigolo’s,
The NSA knows.
When something’s done in South America
Particularly Brazil and Mexico,
The NSA knows.
If driving fast cars you like,
If low bars you like,
If old hymns you like,
If bare limbs you like,
If Mae West you like
Or me undressed you like,
Watch for agents in plainclothes!
Your Google drive
Has tax returns
Or your Flickr account shows your friends in nude photos?
The NSA knows.
If saying your prayers you like,
If green pears you like,
If old chairs you like,
If back stairs you like,
If love affairs you like
With young bears you like,
Watch out for privacy’s foes!
And though I’m not a philosopher
I know that it’s unpopular
And I propose –
The NSA goes!
“The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people.”
In many ways I consider this to be the red-headed stepchild of the Bill of Rights. Nobody really wants it except when they do, and the only time they want it is when they want to use it as a weapon against somebody else. It only exists as a means of quieting down people who were nervous about centralized power, and since then it’s done little to no good despite the lofty goals it was originally envisioned to provide for.
The original purpose of the amendment was, as James Madison phrased it:
[F]rom looking into the amendments proposed by the State conventions, that several are particularly anxious that it should be declared in the Constitution, that the powers not therein delegated should be reserved to the several States. Perhaps words which may define this more precisely than the whole of the instrument now does, may be considered as superfluous. I admit they may be deemed unnecessary: but there can be no harm in making such a declaration, if gentlemen will allow that the fact is as stated. I am sure I understand it so, and do therefore propose it.
Considering that within the twentieth century we were witness to Supreme Court cases that allowed the federal government to decide how much wheat you could grow on your own land for your own personal consumption (Wickard v Filburn), your house can be taken for private use (Kelo v City of New London), and the federales can kick in your door and snatch up your medicinal marijuana crops, even if it is legal to grow and use in your state (Gonzales v Raich). And these are all just abuses of the Commerce Clause, but I’ve harped on that one before. What I find far more interesting is the abuse of the other side of the equation.
The concern, as I see it, that was being addressed by the tenth amendment was not one of states being able to retain the powers they had enjoyed up to this point. Rather I think it is, as Madison points out, a continuation of the thread that runs throughout the Constitution and the rest of the Bill of Rights: people who had fought to free themselves from what they perceived to be an aggressive, oppressive regime and not wanting to re-create it in the new government they were now defining. One of the chief concerns and problems they had seen was that, being so far away from the seat of power, their concerns were not addressed and their complaints were ignored, and they believed that their local (and by extension state) governments would be more responsive in the event that government action would be needed at all (hence that little clause at the end “or to the people”).
This was never intended to be a carte blanche for state governments to violate the rights of citizens where the federal government couldn’t, and yet so many times that is exactly how some groups have attempted to interpret it. Waving the banner of “states’ rights”, they have tried to circumvent laws and statutes they didn’t like, usually ones that were intended to protect the rights of minority populations. While there are those who attempt to argue the historical implications of the North versus the South and economic issues that extend beyond slavery (some of which does have validity), the core of the issue was that Southern states wanted slavery and Northern states didn’t. This has come forward to us through the years as Jim Crow laws, “separate but equal”, and other forms of government imposed racism, which are times when federal power should intervene to protect the rights of minority populations against the will of the majority in a given area.
Unfortunately this same sort of abuse flows downhill in many ways; states use their power to impose all sorts of laws on their people, such as smoking bans, labor laws, property usage laws, and other means of restricting the free use of property and control over one’s own body. These laws can be and often are popular in the localities where they are passed, or at least popular enough with a large enough majority of the citizenry for that given issue (hence the phrase “tyranny of the majority”). Unfortunately there doesn’t seem to be as much of a groundswell from either the left or the right as yet to protect against these abuses.
I believe the original intent of the tenth amendment was to try to bring power closer to the people. The idea was that each state would have a limiting document similar to the Constitution (as I believe they all do) that was decided upon by the people of that state; by bringing power closer to the people, it would be more responsive, but also the limits on state power would have the same effect as the limits on federal power. This recursive limitation would flow down the chain of government power, so that ultimately the people would have power over themselves. Instead what we are finding is a constant tug of war between government actors at the state and federal level to determine who gets to make the decisions about our lives, whether any given action falls under ” powers … delegated to the United States by the Constitution” or those ” reserved to the States respectively”. Somewhere along the line the last bit about “the people” got edited out.
“The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people.”
At last we come to what I have to admit is my favorite amendment. If for no other reason, I love this amendment because it is the final answer to every question asked by most of the self-proclaimed “strict constitutionalists” I have met. In most cases these would be people who are looking for excuses to legislate their own petty meanness on the rest of the world, and when you call them on it, they have a standard fall back: their shield, their shelter, their raison d’étre almost universally seems to consist of “where do you find that right in the Constitution?”
Right here. Here it is. In the same way that the justice system lays the burden of proof on the prosecution, and for many of the same reasons, so too is the burden of proof that the government, that we the people have the right to take an action against other people. For my money this is the defining feature of the Bill of Rights, and in many ways the Constitution itself.
It is worth noting that the Ninth Amendment only exists in large part because of the debate about the Bill of Rights itself; by the very notion that there should be no need to specifically enumerate rights that would accrue to the people in a country where the powers of the government would be spelled out quite specifically, and the government would have no further or additional powers beyond those that had been granted to it by the very document that was being amended. It’s a nice thought. Any student of history, classical or modern, political or otherwise, should know it’s also a naïve one. So should anyone who has read Leviathan by Thomas Hobbes.
Call me cynical if you must, but it is my belief born out of study and experience that any human system built for managing people will do two things: grow and accrue more power unto itself. It is not (necessarily) some corrupt plot, it is simply the spontaneous order of human systems. Governments are designed to govern; that is their purpose. They can only do that so long as they are either stable or growing. No system can remain viable if it is stagnant. Therefore, for a government to remain viable it must continue to grow, and the only way for a government to grow is to become more powerful, and thereby more intrusive.
Having delineated specific areas and ways in which the government can’t grow in the first eight amendments, there are two possibilities left. The first is the Federalist assertion of a sort of “gentleman’s agreement” of government, that the rights of the people would be implicitly protected simply by virtue of having delineated the powers the government has. Which has worked so well up to now. The second possibility is finding new and interesting ways to interpret the powers granted by the Constitution, including simply ignoring any rights people might reasonably expect to enjoy, including those grounded in the common law tradition from which the Constitutional government evolved.
The modern upshot of this is widespread. As society has evolved, we have changed in our expectations of what it means to be a part of that society; we have even (thankfully) changed in our attitudes and beliefs about what it means to be human. We have recognized and defended rights along the way that are not specifically enumerated in the Constitution, but that are grounded in the same tradition as the other rights that are. One example is the right to privacy, which is often assailed by the aforementioned “where do you find that right in the Constitution?”
Let me be clear: I believe that all the rights that are defended and provided for by the Constitution, regardless of what philosophical approach you may take to it, derive from the following:
We the People of the United States, in Order to form a more perfect Union,
establish Justice, insure domestic Tranquility, provide for the common
defence, promote the general Welfare, and secure the Blessings of Liberty to
ourselves and our Posterity, do ordain and establish this Constitution for the
United States of America.
That having been said, I see nothing that runs counter to a right to privacy. On the contrary, privacy in one’s person and effects seems to me to be eminently just, promotes tranquility, adds to the common welfare, and is one of the greatest blessings of liberty I can imagine. If you don’t believe me on that last point, throw wide the settings on your Facebook profile and wait five minutes.
Not everything people claim as a right truly is one; I get that. But to say that it must be spelled out to exist is absurd. The law is and always has been a lagging indicator of the culture at best, and a drag on the culture at worst. Far better to put the burden on those who would control us than on those of us who would be free.
“Excessive bail shall not be required, nor excessive fines imposed, nor cruel and unusual punishments inflicted.”
Of all the amendments to be interpreted and re-interpreted over the history of our nation, it may be the eighth amendment that has seen the most action, and is still in the greatest contention to date. Even the first and second amendments haven’t evolved as much, since they do not touch so deeply on the basic principles of what make us a society and what makes us human.
It is the specific clause of “cruel and unusual punishment” that seems to be the sticking point in most cases, and it is the one that has given me the greatest personal turmoil. In my youth I was a hardliner in many ways, for while I believed very much in the idea of a justice system that gave every possible benefit to potential defendants, I also believed that prisons were places of punishment, not rehabilitation. I also was very strongly in favor of the death penalty, in particular in cases of the most heinous crimes. I was convinced that there were some people the world would be better off without, and it was the right and the duty of society to deal with those people in the most straightforward manner possible.
I do not write these words with glee, nor do I write them with contrition. Rather I write them so as to set a basis of understanding of my own personal journey of discovery for those who may feel as I did then, or who feel differently than I do now. My hope is that by understanding the path that I have taken you may in some way understand why I believe as I now do, and even if you still disagree you may at least take some time to consider why you believe what you believe.
In terms of the treatment of prisoners, I used to believe they should be treated no better than the minimum necessary for survival. Food, shelter, and clothing were sufficient; after all, they had already proven they were not willing to contribute sufficiently to society to be a part of it, so why should society pay to keep them in any better style than the least necessary? I saw nothing cruel in this, although it might seem vindictive; after all, if I had to work to support myself, they were at least better off than I was. I have come to realize I at least have something they do not; I have the freedom to choose what I want, and if my choices are constrained by my circumstances, then so are theirs, and theirs are even more artificially constrained by having their liberty taken, even if that is the result of their own actions.
Further, it is a short-sighted thing to suggest that we should reduce humans to the level of nothing but animals, with nothing to fill their days but food, shelter, and the barest of covering. If they have nothing to strive for, no hope that tomorrow will be if not better than today than at least different, that is a cruelty and inhumanity all its own. It also breeds anger and contempt toward society among those who will someday rejoin that society; even if you do not believe prison is a place for rehabilitation, you must at least recognize the potential to create better or worse citizens among those who come out. Providing even simple things like books, athletic equipment, and exercise space allows prisoners a chance to engage body and mind. Television and internet access, even if it is monitored and controlled, provides a connection to the outside world that keeps them engaged and may even keep ennui and desperation from setting in. If nothing else, it shows in us a level of humanity that we condemn others for lacking.
The final hurdle for me was the death penalty. Setting aside the numerous studies showing the uneven and unjust applications and use of the death penalty, which no rational or honest person should, as well as the studies showing the economic unfeasibility of it, which counter any argument on those grounds; I feel there is an ethical case to be made for the elimination of the death penalty. It is not a simple case, nor is it an absolute one, but I believe it needs to be made.
The justification for the death penalty, if there is one, is that it is the ultimate penalty, and it is only handed out for the most heinous of offences, those for which there can be no lesser price. Even if one were to accept that premise, there are other factors to consider which make that untenable. I do accept that the death penalty is the ultimate penalty, for no matter how many years you spend in prison, there is always the hope for redemption, and there is always the chance of parole. There is no coming back from the grave.
In a truly fair justice system, we would ensure two things: first, that the penalty matches the crime; and second, that the bar for a guilty verdict matches the potential sentence. Obviously this would make for a convoluted and difficult system, as we would have many different potential hurdles for prosecutors to reach depending on the severity of a crime, so instead we settled on one that seems to work in most cases and that, at least at first blush, favors defendants: “beyond a reasonable doubt”. But is this enough when a person’s life is on the line? Is “a reasonable doubt” sufficient to make a person pay the ultimate price?
Absolute justice calls for absolute certainty. That is the conclusion I finally came to. Regardless of how you might feel about the morality of the death penalty in the abstract, or even in specific cases where you are absolutely sure someone is guilty, is it enough? Extraordinary cases make for bad law. Or to put it another way, are you unable to think of a single time in your life when you were absolutely sure about something, only to find out you were wrong? Care to bet your life on it?
Care to bet someone else’s?
I don’t. Not anymore.
“In Suits at common law, where the value in controversy shall exceed twenty dollars, the right of trial by jury shall be preserved, and no fact tried by a jury, shall be otherwise re-examined in any Court of the United States, than according to the rules of the common law.”
To be perfectly honest, this falls into the category of “damned if you do, damned if you don’t” for me. On the one hand, I’m always a fan of keeping power as close to the people as possible, and I’ve always been a big believer in Lord Acton’s axiom of power. Give a judge a position for life, or even an elected position where most people won’t know what kind of a job he’s doing because they’ve never had a case in front of him, but hey, he’s a good guy so he keeps getting re-elected, and chances are he’s a prime target for getting bribed, same as any politician. Not necessarily directly, but golf club memberships, free trips, no interest loans for vacation homes, we all know the drill. Blackmail is always a favorite too. So jury trials seem like the way to go, especially in big money cases.
But it isn’t always that simple. Setting aside the well documented issues of race, gender, and age discrimination in jury selection (since most if not all of these studies have focused on criminal rather than civil law), there are still plenty of other issues to consider. First, there’s the question of fairness. Are we really getting justice for either side with a jury trial in some of these cases? Most of them? Any of them? As I understand it in issues of criminal law, the presumption is that if the average person wouldn’t know it was wrong, then there should be some leeway given, which is why you get a jury of your peers. Is that really what we want for cases that involve slander? Or copyright? Or patent law? These are fields that people study for decades to be specialists in, and we are asking a handful of average citizens to somehow pass judgment on which side is right.
This brings me to the second issue. When people don’t have a clear reason to take one side over the other, they will often be swayed by whoever has the better story. While there are certain basic protections against the Population Contest effect (the judge can set aside a ruling that isn’t supported by the evidence, for example), as long as one attorney can give them at least a fig leaf of cover, the jury can be lead to the “right” answer by the more persuasive story. For my money (quite literally) a good example of this is the recent decision in the Apple vs. Samsung lawsuit. In the linked article there are two examples of the vote being swung by experts telling a compelling story: the Apple attorney (and please, someone try to convince me Samsung is more popular than Apple) and the jury foreman himself, who according to ars technica said the jury “wanted to send a message to the industry at large”.
Which brings me to the third issue. In this hyper-publicized day and age, there is more than a little danger that any particular jury verdict is less about that specific case and more about something else. Whether it is sending a message, grabbing a headline, or just getting that fifteen minutes of fame that Andy Warhol promised to us all, there is no certainty in the righteousness of the common man to deliver justice when the blandishments of fame and fortune lie just on the other side of the courthouse doors. That’s no to say they won’t do their honest best or that everyone will vote one way when the answer is clearly the other way, but in the tough moment when there is no clear answer, or when you have to decide between $500,000 and $1.05 billion, that siren call is hard for anyone to ignore.
So what’s the answer? One possibility is already in use, and that’s private arbitration. I don’t mean the kind of abusive arbitration that is written into some contracts these days, “if you ever have a problem with us you have to use our arbitrator that we select, and that we pay, and oh look, he knows which side of hi bread is buttered.” I mean independent arbitrators, people who specialize in civil law and get paid out of an escrow account so they very specifically don’t know which side of their bread is buttered. Another model I heard once (and my apologies to whoever told this to me, since I can’t recall the source) is that you go one step further: you have your arbitrator (or judge), and I have mine, and there’s a third party we both agree on. Two out of three votes wins.
The truth is anytime there’s a dispute between two parties, there will never be a perfect solution that satisfies everyone (just ask any parent with more than one child). The best we can do is find a system that maximizes the good results while minimizing the bad ones.
UPDATE: For a deeper analysis of the rule of law and how private resolution can work as opposed to public systems, check out this article by Prof. John Hasnas (h/t to Kurt Bouwhuis).
“In all criminal prosecutions, the accused shall enjoy the right to a speedy and public trial, by an impartial jury of the State and district wherein the crime shall have been committed, which district shall have been previously ascertained by law, and to be informed of the nature and cause of the accusation; to be confronted with the witnesses against him; to have compulsory process for obtaining witnesses in his favor, and to have the Assistance of Counsel for his defence.”
I’m gonna skip right over the numerous ways both the Bush and Obama administration have violated this one since 9/11, since that horse has already been beaten into the ground by roughly everybody (although I do find it interesting that the noise level about it seems to have dropped off since roughly January 20, 2009). The fact is there are still serious issues in our country that have come about due to policy decisions that are tangential to this amendment, some of which are only obvious after the fact due to the law of unintended consequences.
First we have the issue of a speedy trial. This is by definition a slippery one, since what constitutes a “speedy” trial is a qualitative measure, not a quantitative one. Is a week to prepare a defense long enough? How about five years? How long is too long? Either way you have issues, but it doesn’t much matter, because the justice system is getting more and more crowded each day. A lot of this can be attributed to the growth in nonviolent offenders. Much of this can be attributed to the War on Drugs (yes, I’m back on that old tune), but there is also the criminalization of other activity to consider as well.
As The Illustrated Guide to Criminal Law so adeptly shows, there has been a large increase over time in the number and scope of laws that do not require mens rea, or an accompanying mental element to match the actual act of committing a crime. I can’t go into the details of overcriminalization nearly as well as The Illustrated Guide does, so I highly recommend visiting that link; it’s highly informative, very entertaining, and a little scary. It covers both regulatory agencies that pass regulations that include criminal as well as civil penalties for violations, as well as my personal favorite, politicians who legislate personal behavior (speaking of which, can someone in NYC run to 7-11 and grab me a Big Gulp, a doughnut, and a pack of smokes?)
The upshot of all of this is that we end up with a criminal justice system that is bogged down with defendants, many of whom can’t afford an attorney. Let’s face it, if you could afford an attorney, chances are pretty good you wouldn’t have gotten caught in the first place, because you would have had someone else doing the dirty work for you (it takes a lot to bring down a Bernie Madoff, not so much to bring down a Joe Shmoe). This brings us to the Public Defender’s office. Now before you think I’m about to tear into yet another government agency just trying to do their job, I’m not. I actually have a lot of respect for these people. The don’t get paid much, they have huge case loads, and they work ridiculous hours, usually trying to defend people who for the most part don’t stand a chance. That’s not to say most of their clients are guilty, but you would have a hard time convincing me that more money doesn’t buy better expert testimony, better access to research tools, more paralegals to work your case, and so on. The fact is Justice may be blind, but that doesn’t mean she doesn’t have a palm just waiting to be greased.
So what’s an attorney to do? With a huge case load, a small chance of winning in most cases, and huge mandatory sentences having been imposed by ill-considered legislation in the past, there’s only one out: focus on the ones you can save and get the best deal you can for everyone else. That’s why plea bargains have become so popular. There are just a few problems with that.
Number one, they only work if you have something to trade. Remember that regulatory criminalization I mentioned earlier? Unless there’s someone higher up the food chain you can point a finger at (Bernie Madoff), you’re the guy stuck holding the bag. Or if you just happened to be picking up a buddy and had no idea he was holding. Either way, you’re outta luck.
Number two, plea bargains are a poor substitute for justice. With those previously mentioned harsh sentences, all the DA has to do is get an indictment for a particularly nasty crime (like say intent to distribute, even if you had no such intent), and you’re facing twenty years. Suddenly a plea bargain for a year in jail sounds like a sweet deal indeed, even if you think you have a fair chance of beating the case, just because the cost of losing is so high. That’s a real-life application of game theory, one of the most famous examples of which is (ironically) the Prisoner’s Dilemma.
Third, and maybe this is just me, it smacks of a witch hunt. Whether it’s Salem 1692 or Washington D.C. 1954, our country doesn’t have a very good track record with this sort of thing. Turning people against each other in order to avoid further punishment may be a time-honored tactic, and it has proven to be efficacious, but it is not without its dangers. It should be used sparingly, as a scalpel and not a bludgeon.
“No person shall be held to answer for a capital, or otherwise infamous crime, unless on a presentment or indictment of a Grand Jury, except in cases arising in the land or naval forces, or in the Militia, when in actual service in time of War or public danger; nor shall any person be subject for the same offense to be twice put in jeopardy of life or limb; nor shall be compelled in any criminal case to be a witness against himself, nor be deprived of life, liberty, or property, without due process of law; nor shall private property be taken for public use, without just compensation.”
At last we get to the most popular amendment, and yet the one that people seem to know the least about. This clause is basically about preventing the State from using its power to abuse the rights of individuals. Everyone is aware of their right against self-incrimination (although good luck explaining it to your parents when you try to sneak in late at night), and most everyone knows what double jeopardy is (the Ashley Judd version, not the Alex Trebek version), but that last clause about eminent domain is a bit of a ringer, and the one that seems to be getting abused more and more of late. I’ll address each one in turn, along with my thoughts on each.
Grand juries show up in almost every court room drama, but we rarely think about them. One line an old buddy of mine was very fond of was “I can get a ham sandwich indicted”. Fortunately, it’s not quite that simple. This is the first line of defense against the overwhelming power of the State. “The prosecutor must recognize that the grand jury is an independent body, whose functions include not only the investigation of crime and the initiation of criminal prosecution but also the protection of the citizenry from unfounded criminal charges.” (US Attorneys Criminal Resource Manual)
Double jeopardy is another important defense against the power of the state for innocent people. It makes sure we don’t get dragged into court time and time again, constantly harassed just because the police or DA has managed to find (or “find”) some new evidence. I understand it can be daunting and even nerve-wracking sometimes to only have one chance to get it right, and there are a lot of good people on the job trying to get it right. But that’s the point, isn’t it? With all the resources dedicated to getting it right, how many resources are there dedicated to protecting the guy they decided is guilty who isn’t? How many times do they get to come after him before they finally say, “huh, maybe we should look into someone else?” This clause basically says “get your act together before you take your best shot, and no means no”. Nothing wrong with that.
Next, let’s talk about self-incrimination. This is central to the defense of innocent people in the power of the State. I know, I know, “if you’re innocent you have nothing to fear.” Sure. Just tell that to every person who’s been exonerated through DNA testing. Imagine that you’ve been arrested, and you can be compelled to testify against yourself. Where were you between two and four a.m. on the night of November 4, 2011? Don’t remember? Why not? You’re not hiding something, are you? Maybe I believe you, maybe I don’t. Or maybe you were at home, sleeping. Alone. With no witnesses… Or maybe you were doing something just a little illegal, but you don’t want to cop to it because it would implicate a friend. There’s any number of reasons you might not want to testify that I could turn against you if you have no choice in the matter. So yeah, I think this one is pretty important.
The one other thing I have to say on this is tangential, and it’s more of a pop culture pet peeve. It seems every time it comes up on a court room drama, someone is invoking their “Fifth Amendment privilege.” It’s not a privilege, it’s a right. A privilege is ice cream before bed, or hanging out with your friends at the mall. It’s something that can be taken away from you for not behaving the way you are supposed to. A right is something that is yours, and nobody can take it away. Get it straight, Hollywood.
Let’s not forget that due process gets covered here, too. This is particularly important in these days of terrorism, cyber-crime, and other horrific crimes such as mass shootings that get the public blood up. The “justice” of the lynch mob can be awfully tempting, but it is in truth simply awful, and the fact is that if we stoop to becoming that which we are fighting against, we lose the very thing we are fighting to protect. More to the point, there is no word here that says “citizen”, it is “person”. When we no longer hold ourselves to that high standard, acknowledging that people are born with rights, not granted them by a government, we lose the moral high ground and it becomes a simple matter of who has the biggest stick.
Finally we come to eminent domain, the “right” of the State to take property for “public use”. This is the one that seems to be getting the most abuse lately, as the definition of “public use” becomes more flexible with every passing day, as does the concept of “just compensation”. What exactly is “public use”? Is it a highway? A new school? According to the Supreme Court, it’s a forced transfer of private property from one private individual to another. As far as “just compensation”, that’s basically whatever the government says it is. It doesn’t matter if you wouldn’t take a million dollars for your home that your family has lived in for five generations, if the government says it is worth exactly $300,000, that’s what you get, and the city gets its new highway. Suck it up, it’s for the good of the community. You know, the community you were so proud to be a part of… until they bulldozed your house.
So maybe this last clause of the Fifth Amendment is not living up to what it should be. The rest are doing okay, although I still have concerns about self-incrimination in a world where the government is trying to compel people to turn over encrypted hard drives and get ISPs to give up your data even when you do everything in your power to keep it private (which also smacks of violating the First and Fourth Amendments, but hey, why not go for the hat trick?) At least we still have the Miranda decision working for us, which is something, and that brings up the best defense against government power: educate yourself. Not just on your rights, but on how to protect them, and on how they can be violated (and sometime are being violated). No piece of paper will do better than that.
“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.”
At last we get to one of the more popular and most often abused amendments. It seems like every time I turn around I hear another story of this amendment being reinterpreted, which confuses me somewhat since it seems to be pretty straightforward. I guess it’s the big question of what exactly constitutes an “unreasonable” search and seizure, and then there’s that issue of what exactly is “probable cause”, but we’ll get to each of those in a minute. Let’s take it from the top and work our way down.
First there’s the issue of what exactly we’re supposed to be secure in. “…[T]heir persons, houses, papers, and effects.” Persons means more than just no pat downs, like say, at the airport just because you’re getting on a plane. That means you can’t even be arrested, hassled, asked for ID, or anything, without probable cause. Even being pulled over by a traffic cop is enough to warrant probable cause. “I had a feeling” doesn’t cut it; “he looked suspicious” is also mighty suspicious. Houses means any residence, so any time the police enter a residence without a warrant you’re looking at a major no-no.
Papers? Does that just mean the physical material? Or was that simply the idea that you can have an idea, record it, share it, and not have the government rifling through your notes without cause to believe you are doing something illegal, regardless of the medium? As I’ve discussed before, the Founding Fathers were great statesmen and lousy prognosticators, so they really didn’t see the interwebs coming. Probably didn’t anticipate computers, smart phones, tablets, or any medium for transmitting ideas other than “papers”, but they meant to cover the whole spectrum.
So what exactly is an “unreasonable search or seizure”? That’s a little harder to pin down, but if I had to try to take a swing at it, I would say any search or seizure that occurs outside the bounds of a lawfully obtained warrant as described by the fourth amendment OR one that was necessitated by severe exigent circumstances. I know that puts some wiggle room in there, but I’m willing to be reasonable. If a guy is about to toss a smoking gun in the ocean, I’m willing to allow that a cop can wrestle it from him. What I will not allow is “we strongly suspect they’re growing pot in there and if we take the time to get a warrant they will have time to get rid of the evidence.” Yeah? If they really are, post someone to watch them and catch them doing it. Meantime, get a warrant.
What constitutes probable cause? Again, this is slippery, but I’m willing to give the razor’s edge benefit of the doubt to a trained professional. If a police officer says he saw someone carrying what appeared to be a dead body into a building, but it was nighttime from fifty yards away, I’ll still take his word for it. Anyone else, probably not. If that same officer says, “I know he did it, you know he did it, we all know he did it, we just need to get in there and get the proof!”, sorry, no dice. I’ve known a lot of things in my life that have proven not to be true, and police are no less susceptible to bias than anyone else. (By the way, I’d take that first officer’s history into account. Is he reliable? Does he have a reputation for playing fast and loose with the truth? There’s a reason warrants have to be “supported by oath or affirmation”.)
Finally, there is no carte blanche in warrants, and for good reason. If the government got to say “we think you’re a suspicious character, so we’re just gonna rummage through all your stuff until we find something to hold you on,” they could bring any one of us in. Don’t believe me? Read the laws of the state you live in. Every… single… one of them. I’m willing to bet anyone $10 cash right now they’ve violated at least one of those laws sometime within the statute of limitations. It’s almost impossible not to have. It’s the nature of the beast, because ridiculous laws get passed all the time. If they can prove you broke one, they can haul you in. Unless of course they have to have some proof in advance to get the warrant in the first place. Which keeps the government from harassing innocent people, or even not so innocent people. At least it forces them to focus on building the case first rather than just picking some poor schmuck, saying “eh, close enough”, and throwing him in jail until he rots.
Does this mean some guilty people get off on a technicality? Occasionally, yes it does. On the other hand, consider that it is far more likely that an innocent person will accept a plea bargain for a lesser charge because they can’t afford a lawyer that can get them off when faced with the power of the state. Now, imagine what would happen if we didn’t have these restraints in place. The system is not perfect, but trying to compare it to a perfect system is unrealistic. The only alternative is to compare it to the system we would have without these restraints. I for one would not prefer that alternative.
“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.”
You don’t hear much about the Third amendment these days. Everyone is more concerned with the Big Five as I think of them (First, Second, Fourth, Fifth, and Eighth) to worry too much about the rest except in theory or in extremis. And why should we? After all, when was the last time the U.S. Army knocked on your door and demanded that you put up a couple soldiers for the night? Doesn’t seem like something we really need to worry about in this day and age.
I like to look a little deeper and consider the philosophical and political ramifications of these things. As I have heard the rights of man explained in many courses and in many ways over the years, there are two approaches. The first, which is more popular (and populist) than I am comfortable with, is that as a member of a community and a citizen of a country, you owe something to your community and country simply by virtue of being a part of it. And no, paying taxes doesn’t cover your obligation. There is a presumption of first claim on your person, on your time, and on your livelihood. This would then naturally extend to a first claim on your belongings, including your residence.
The second way of looking at things is that people are born with certain rights (you might even call them inalienable). These rights exist with or without the presence of a community or a government, and in fact supersede any communal or governmental attempts to restrict or circumvent those rights. This does not mean you have no reason to participate in your broader community or government, but it does put very distinct limits on what can and cannot be asked or demanded of you.
It would seem to me that the Third Amendment more fully supports the latter belief than the former. While there is room in it (that clause “but in a manner to be prescribed by law”) for some impinging on an owner’s right to privacy in their own home, even that is restricted to times of war (and no, I don’t think the Wars on Drugs or Terror count). That being the case, there are several presumptions that flow therefrom quite logically that have a great deal of bearing on our modern lives. Not the least of these is the idea of government restrictions on how we use our own property, whether it is for housing or running a small business out of our own homes. I’m not a fan of zoning laws in general, but so long as there is no material impact on my neighbors that would be distinguishable from any other residential use, why does the government get a say?
While I’m on the subject of businesses, bear in mind that at the time the Constitution was written, for many business owners their business and their home were one and the same, and even now it’s as often a matter of semantics as reality to distinguish between a small business owner’s home and business. So why does the government get to dictate the terms of how that business is run? So long as everyone is there voluntarily, nobody’s rights are being violated. I know, being “forced” to work in an environment that allows smoking is a terrible burden. Far more so than, say, being out of work because the bar you had a job at went out of business when there wasn’t enough trade to support it… or maybe they just had to fire one bartender.
I have heard the counter-argument made, and I think it’s a fair one worth addressing, that if “every man’s home is his castle” you end up in an anarchic state where anytime you set foot on someone else’s property they can simply claim “this is my land, I make the rules, and I say you’re my slave now.” The counter to this is that the right to be secure in one’s home is based on the right of self-ownership, and that right extends to each and every individual. Violating that right in another is to surrender that right for yourself. That is the value I see in having a government in the first place: to defend the rights we each have against all comers, both foreign and domestic. However, the government that strips away those rights is no better than the brigand it is meant to defend against. I for one prefer the brigand; he is easier to bargain with, easier to fool, and if need be, easier to destroy.
“A well regulated militia being necessary to the security of a free state, the right of the people to keep and bear arms shall not be infringed.”
What is it with those Founding Fathers? Once again, we have a set of words and clauses that obscure as much as they illuminate. I know, I know, some people look at this and say that it’s perfectly clear what it means. Unfortunately, I’ve had as many people tell me it clearly means one thing as I have had tell me it clearly means something diametrically opposed that the only thing I can say with certainty is that there is no “clear” meaning.
So here’s what I think this means, and I know this is not the most popular definition, but I’m going to put it out there: people have a right to defend themselves, from any and all comers. This includes state actors, foreign and domestic. Keep in mind that it was not so long before the drafting of the Constitution that a war was fought by the people, using their own weapons, to fend off an oppressive government. As the old saying goes, “fool me once, shame on you; fool me twice, national rebellion.”
For those who believe the purpose of this amendment was to establish a militia for national defense, and we don’t need that since we have a standing army or the National Guard or whatever else, allow me to point out that at the time this was written the people of this country already had plenty of experience with their government having a standing army. If you don’t believe me, check the Third Amendment. It exists specifically because of past experiences with the British army back when they were British citizens. However, we don’t need to restrict ourselves to the intent of the past; we can look to the present to consider what our best course of action is.
Consider the Arab Spring that so much has been made of, and Egypt in particular. So many people were elated when Hosni Mubarak was deposed, and they anticipated the rise of democracy. But a funny thing happened rather quickly. Turned out that it wasn’t really Mubarak who was in charge after all, it was the military. The guys with the guns. And they aren’t giving up so easily. The protesters might have won a major battle, but there’s a long war left to go.
This isn’t to say that the U.S. is the same as Egypt, not even close. But there were a lot of people who got very upset at the Patriot Act, and that’s not the only restriction on freedom we’ve seen in the last twenty years. What happens if this trend continues for another twenty years? What about if the protesters who occupied parks across the country feel they aren’t being listened to? What if they start to riot and get thrown in jail, and emergency powers are enacted to deal with the problem?
These aren’t likely scenarios, but they are possible ones, and they aren’t the only ones. They are simply a few of the ways that a government that has nothing to fear from the people can start to tighten its grip on the people it is supposed to protect, often with the best of intentions (and we all know everyone in government has the best of intentions, don’t we Messrs. McCarthy and Nixon?) And governments should be afraid of their people. Every day, in every way, governments should rule with a very light hand because they understand the price of choosing wrong.
Gun control advocates will try to claim there is a public interest in limiting the number and availability of guns, but why? How does that help? This is like any other sort of prohibition, in that the more you do it the more you drive the market underground, and the more you give profits to criminals.
The worst part is when good people start to use the exact rhetoric for gun control their opponents use in other circumstances without even batting an eyelash at the irony: “Register your guns; if you’re innocent you have nothing to worry about.” Sure. While we’re at it, let’s just go ahead and get fingerprints and DNA from everyone in the country as well. Same logic applies, right? Makes it easier to find the bad guy when a crime is committed. More accurately, too.
I’m not going to say something silly like “guns don’t kill people.” Of course guns can kill people. So can cars, knives, rocks, televisions, glass bottles, and (if you eat enough of it) my mother’s cooking. That doesn’t mean we try to ban those other things (although if anyone wants to try to ban mom’s cooking, sign me up.) We acknowledge the risks, and we do what we do in any situation: we enforce the laws we already have. If you hurt someone with a gun, you committed a crime and you should go to jail. Simple. That doesn’t mean that owning a gun should be a crime all by itself.
ADDENDUM: I originally wrote this post before the shooting in Aurora, Colorado. First, I would like to say my heart goes out to those who lost friends and family that day. To those who wonder if this changes my position on gun ownership, I regretfully have to answer no. This is a black swan event. I do not believe that extreme cases such as this make a good and justifiable case for any sort of gun control, as they are an example of the sort of individual I spoke of above who will find a way to hurt other no matter what, and punishing the vast majority of law-abiding citizens in an unreasoning attempt to protect us is specious and wrong-headed. However, in the name of fairness, I would like to direct anyone who is interested to this post by Jason Alexander, which represents the opposing view (h/t to R.L. Mirabal). While I do not agree with everything he has to say, I do believe he has some salient points to make and his post is well worth reading. If nothing else, he at least seems open to rational discussion, rather than simple finger-pointing and blindly clinging to one position. In times like these, more rationality and less blind ideology would be a nice change of pace from all of us.