From Ozy: A CHERISHED RIGHT THAT WAS ALMOST NEVER BORN

The right to privacy is not in the Constitution. For some this is sufficient to maintain that it does not exist. Other argued that it exists in the loose language of clearly stated rights in the Bill of Rights. Scalia was no fan of the right since it did not fit his preferred means of interpreting constitutional language.

Here's the story of how the right was claimed in the case of Griswold v Connecticut.

- Click here for it.

For 50 years, thanks to the Supreme Court’s landmark decision in Griswold v. Connecticut, Americans have enjoyed a constitutional right to privacy. That right, nowhere expressly mentioned in the Constitution but now relied upon by millions, has since been invoked to cover everything from contraception to abortion to gay rights, helping to ignite a raging culture war along the way. But few realize that this right, considered by some a “bedrock principle” of American law — and one that has prevented countless unwanted pregnancies and births over the past half century — came very close to never being born.

In fact, just two months before the Supreme Court issued its controversial decision in Griswold on June 7, 1965, the embryonic right was mostly confined to the scribblings of a 66-year-old jurist. Shortly after being assigned to write the majority opinion in the case, Justice William O. Douglas, a committed civil libertarian who authored 1,164 opinions in 36 years on the Court, had sketched out a first draft — a mere six typewritten pages in length. 

. . . None of the nine men sitting on the Supreme Court thought Connecticut’s 1879 anti-contraception law, both prohibiting the use of contraceptives and abetting that use, was a sensible law (in his dissent, Justice Potter Stewart called it “uncommonly silly”). But the problem was finding something in the Constitution that agreed, a task willingly undertaken by the seven-justice majority. Douglas’ solution, cobbled together like an all-you-can-justify meal from a Bill of Rights buffet, was ingenious and somewhat laughable — and one reason Griswold has since become a lighting rod for those decrying the court’s judicial activism.

According to Douglas, the specific guarantees enunciated in the Bill of Rights “have penumbras, formed by emanations from those guarantees that help give them life and substance,” and the “right to marital privacy” violated by the Connecticut statute emanated from the “zones of privacy” created by several constitutional amendments, including the first (free association), third (prohibition on the quartering of troops), fourth (searches and seizures) and ninth (other rights retained by the people).

When Douglas’ draft opinion was circulated, says Garrow, the clerks in other chambers were shocked at how thin it was, and the references to “penumbras” and “emanations” elicited more than a few sniggers. Could such an unorthodox opinion command a majority of the court? Even Chief Justice Earl Warren, the court’s liberal lion who had assigned Douglas the opinion, was hesitant to sign on. One of Warren’s clerks, John Hart Ely, later a preeminent constitutional scholar, wrote him a 30-page memo on the case. “No matter how strong a dislike for a piece of legislation may be,” Ely counseled, “I do not think the Court should enforce clauses which are not there.”

From Slate: Getting the History Right - Tracking the real history of corporate rights in American constitutional thought.

One of the questions posed in the Hobby Lobby case - and one answered in the affirmative in Citizens United - is whether a corporate entity has constitutional rights like free speech and free exercise of religion.

Two history professors point out that this is a recent opinion. The idea that corporations - as distinct entities - have rights is a recent invention.

- Click here for the article.

Until the mid-20th century, the corporation was seen as a special and artificial creature of the government. It has never been seen as entitled to the same array of rights guaranteed to citizens.

This view was held not only by lay people and legislators but by the justices of the court itself. Chief Justice John Marshall did not equivocate in Dartmouth College v. Woodward in 1819: “A corporation is an artificial being, invisible, intangible, and existing only in contemplation of law. Being the mere creature of law, it possesses only those properties which the charter of its creation confers upon it.” In 1839, Chief Justice Roger Taney agreed wholeheartedly in Bank of Augusta v. Earle: “A corporation can have no legal existence out of the boundaries of the sovereignty by which it is created. It exists only in contemplation of law and by force of the law. ... It is indeed a mere artificial being.”

These two powerful architects of original Supreme Court authority insisted upon this artificial status in order to hold early American corporations particularly accountable to the state and to the public at large. Most of America’s first corporations—bridge companies, water companies, transportation companies, banks, and insurance companies—were viewed as essentially public service corporations or public franchises. In addition to grants of property and public financing, the state usually accorded such entities special privileges like monopoly power, the power of eminent domain, or toll-taking authority. In return for those benefits, the government insisted on the special public obligations of corporations. Not only were corporations notexempted in any way from generally applicable regulatory laws, but they were routinely held to higher standards of public service, public accountability, social responsibility, and public trust.

Testing the limits of ther free exercise of religion

It does protect a couple that denies medical treatment for a child in favor of prayer if the child dies as a result. We discussed similar cases earlier in 2305 when we covered the religious freedoms established in the Bill of Rights. Here's an example:

A couple serving probation for the 2009 death of their toddler after they turned to prayer instead of a doctor could face new charges now that another son has died.

Herbert and Catherine Schaible belong to a fundamentalist Christian church that believes in faith healing. They lost their 8-month-old son, Brandon, last week after he suffered from diarrhea and breathing problems for at least a week, and stopped eating. Four years ago, another son died from bacterial pneumonia

. . . A jury convicted the Schaibles of involuntary manslaughter in the January 2009 death of their 2-year-old son, Kent. The boy's symptoms had included coughing, congestion, crankiness and a loss of appetite. His parents said he was eating and drinking until the last day, and they had thought he was getting better.

The Schaibles were sentenced to 10 years' probation.

At a hearing Monday, a judge told the couple they had violated the terms of their probation, noting the Schaibles had told investigators that they prayed to God to make Brandon well instead of seeking medical attention.

"You did that once, and the consequences were tragic," Philadelphia Common Pleas Judge Benjamin Lerner said, according to the Philadelphia Daily News.

Should the Bill of Rights be updated?

Here's an argument that recent developments in surveillance technology (drones etc...) make updating a good idea, even an imperative one.

Ultimately, it doesn't matter whether we trust the authorities to impose limits upon themselves when it comes to deployment of surveillance technologies that legislators nor courts have specifically circumscribed. The fact is that the law is out of date. The Bill of Rights was written a long time ago, well before cellphones, the internet, spy drones or even video cameras were invented. Our Electronic Communications Privacy law is woefully obsolete, itself predating widespread usage of three of those four technologies.

We need to bring the Bill of Rights into the 21st century for the same reason the ACLU and others want the Obama administration to tell us its legal rationale for its overseas killing operations: the public should know what rules the government is bound by, particularly when it comes to our rights to privacy and due process. Unfortunately, that's simply not the case. Today, we live in an era of secret law, from top-secret CIA and military killings abroad, all the way down to the DOJ's view of law enforcement location tracking powers here in the US. Where the law doesn't explicitly provide guidance, we are largely ignorant of how the government interprets its authorities with respect to new technologies, its powers, and our rights.

Senate Judiciary Committee holds hearing on solitary confinement

Is it cruel and unusual punishment?

The hearings can be found here: “Reassessing Solitary Confinement: The Human Rights, Fiscal and Public Safety Consequences”

From the NYT:

The hearing, held before the Subcommittee on the Constitution, Civil Rights and Human Rights, represents the first time lawmakers on Capitol Hill have taken up the issue of solitary confinement, a form of imprisonment that many human rights advocates believe violates the Eighth Amendment’s prohibition of “cruel and unusual punishment” and that has drawn increasing scrutiny in recent months in the United States and internationally.

The practice, which is widespread in American prisons, has also been the target of a growing number of lawsuits, including a class-action suit filed on Monday on behalf of mentally ill inmates held in solitary at ADX, the federal super-maximum-security prison in Florence, Colo.

Last month, civil rights lawyers representing prisoners held for more than 10 years in isolation at Pelican Bay State Prison in California filed suit in federal court, arguing that solitary confinement is unconstitutional.

Torcaso v. Watkins

Some 2301 students have noted in last week's written assignment that the Texas Bill of Rights contains a clause that says: No religious test shall ever be required as a qualification to any office, or public trust, in this State; nor shall any one be excluded from holding office on account of his religious sentiments, provided he acknowledge the existence of a Supreme Being.
This makes it clear that atheists cannot hold public office in the state, and is very different than language in the US Constitution that preculdes such limitations.

This clause was negated however in the 1961 court case Torcaso v. Watkins, which argued that it violated the establishment clause which, they argued, protects people from being compeled to profess a belief in a church or religion. It was also held that the requirement violated the Constitution's mandate that religious tests not be used as a qualification to hold office.

This applied not only to Texas, but to other state constitutions that had similar clauses that allowed for discrimination against atheists.

The Confrontation Clause

In recent years the Supreme Court has given additional attention to the Sixth Amendment's Confrontation Clause. Defendants can confront their accusers during trials. What if, however, the evidence presented is expert testimony created by analysts? Do they always have to show up? And if they do, what about the costs that that requirement imposes?

The recently argued case of Williams v. Illinois presents this question to the court.

- The Bill of Rights Doesn't Come Cheap.
- ScotusBlog: Williams v. Illinois.
- Sixth Amendment's Confronation Clause. 

California court OKs searches of cell phones without warrant

From a star student, the California Supreme Court has authorized police to search cell phones without a warrant. Not sure if a similar allowance is made in Texas.

Is Tabloid Journalism Really Journalism and is it Entitled to Protection?

Andrew Sullivan weighs in and provides a nice video debate on the subject.

Mistrial in Clemens Case

The prosecution seems to have introduced inadmissible evidence, despite being warned by the judge. A jury is to be impartial - so ways Amendment #6.. Evidence that might jeopardize this is excluded from being introduced. The judge is supposed to oversee this guarantee. This one apparently did.

Story in the Washington Post:

One important piece of evidence was Andy Pettitte’s testimony that Clemens had told him he had taken human growth hormone. In previous proceedings, Pettitte’s wife Laura signed an affidavit affirming that her husband told her of the conversation the day it occurred.

But in pretrial decisions, Walton ruled that, because Laura Pettitte hadn’t heard the conversation directly, her testimony would be inadmissible.

So, what did the prosecution do? They apparently tried to go through a backdoor by showing the jury a video of Rep. Elijah Cummings (D-Md.) at the 2008 congressional hearings in which Clemens referred to Pettitte’s conversation with his wife. Laura Pettitte’s affidavit appeared on the courtroom monitor. And there it stayed in full view.

Fourth Amendment RIP?

Grits for Breakfast points to several stories suggesting that the 4th Amendment may be increasingly irrelevant. Recent technological developments (GPS, wireless communicatons, credit card use) have put more and more private information in the public sphere, which previous court rulings have argued is fair game for investigators.

ScotusBlog: Review of the Court’s Fourth Amendment cases.

"Voting is not speech protected by the First Amendment."

The Supreme Court upholds a conflict of interest law.

NYT: "F.B.I. Agents Get Leeway to Push Privacy Bounds"

The New York Times reports on the latest stage of the ongoing conflict between security and civil liberties in the age of terror:

The Federal Bureau of Investigation is giving significant new powers to its roughly 14,000 agents, allowing them more leeway to search databases, go through household trash or use surveillance teams to scrutinize the lives of people who have attracted their attention.



Valerie E. Caproni, the F.B.I. general counsel, said the bureau had carefully considered each change to its operations manual. The F.B.I. soon plans to issue a new edition of its manual, called the Domestic Investigations and Operations Guide, according to an official who has worked on the draft document and several others who have been briefed on its contents. The new rules add to several measures taken over the past decade to give agents more latitude as they search for signs of criminal or terrorist activity.

The story states that agents may take "proactive" steps against individuals and organization who they deem likely to act against the US.

The directives are contained in the FBI's new operations manual.

Two Free Speech Cases

Eugene Voloch comments on two recent incidents touching on the freedom of speech.

In the first, free speech is not accepted as defense for urging people - online - to commit suicide.

In the second, a UCLA student's video - which makes disparaging comments about Asian students - is called moronic, but protected.


Is this video protected speech?

 

Scalia's Irrelevance?

Linda Greenhouse has an interesting take on Justice Scalia's notoriously snooty dissenting opinions. They are a sign of a general lack of impact on the court:

So the question raised by Justice Scalia’s most recent intemperate display remains: what does this smart, rhetorically gifted man think his bullying accomplishes?

It’s a puzzle. But having raised the question, I will venture an answer. Antonin Scalia, approaching his 25th anniversary as a Supreme Court justice, has cast a long shadow but has accomplished surprisingly little. Nearly every time he has come close to achieving one of his jurisprudential goals, his colleagues have either hung back at the last minute or, feeling buyer’s remorse, retreated at the next opportunity.

Still Unsure About the Selective Incorporation of the Bill of Rights?

For my 2301's, in case you are still confused about the selective incorporation of the Bill of Rights to the states, or any issue associated with how the 14th Amendment has made the Bill of Rights applicable to state governments, I strongly suggest listening to Justice Alito's reading of the majority decision in McDonald v. Chicago.

Shouting "Shoot Obama" in Georgia

Since we discussed limits to free speech in 2301, how about the elderly man who asked "who is going to shoot Obama?" in a town hall meeting.

Is this a constitutionally protected question? a veiled threat? an invitation?

Plum Line discusses the Secret Services response: one group who took this seriously is the Secret Service. According to Ed Donovan, a Secret Service spokesman, the situation has been looked into.

"We're aware of the incident and the appropriate steps were taken," Donovan told me. "At this point it's a closed matter."

A law enforcement source confirmed that the Secret Service interviewed the constituent and determined that he or she was an "elderly person" who now regrets making a bad joke.

"In this case this was poor taste," the source says. "The person realized that."

The Atlantic Maganize recently ran an interesting article looking inside the Secret Service.

Here's a related court case from C-Span:

Ardith McPherson was a deputy constable and clerical employee serving in Harris County, Texas. Upon hearing about the assassination attempt on President Ronald Reagan on March 30, 1981, she told a coworker, "If they go for him again, I hope they get him." Another co-worker overheard the comment and reported it to Constable Walter Rankin, who then fired McPherson.

Councilwoman Jones draws scrutiny over handout

From the Chron, a story highlighting controversies over citizen's rights:

The city's Office of Inspector General is looking into a card distributed at a recent forum on police brutality in which City Councilwoman Jolanda Jones advises people never to speak with police.

"I would absolutely be concerned about anyone who would do anything to discourage citizens from speaking to police officers," Mayor Annise Parker said after Wednesday's City Council meeting. "That would be certain members of council who have put out written statements saying that citizens should never talk to police officers under any circumstances."

The card's advice for encounters with police at home includes the directive: "NEVER speak with the police. You have a 5th Amendment right to remain silent. Use it! Ask for & contact your lawyer." In another section, the card states: "If it is meant for you to speak with the police, do so ONLY after you speak with your lawyer and he/she gives you permission." . . .

Jones, a criminal defense lawyer, said the card is a quick legal reference to remind people of their Fifth Amendment right against self-incrimination, not a call to refuse to cooperate with police. She said she has passed out a version of the card for years, even before her election to the council in 2007.

"Are they saying that they're disappointed that I'm telling people their constitutional rights?" Jones asked. "It's a public service. Me being on the council does not trump the Constitution."

On the Supreme Court's Use of History in Fourth Amendment Cases

For our upcoming discussion of civil liberties: Grits for Breakfast provides a link to a recently published critique -- The Fourth Amendment: History, Purpose, and Remedies, by Arnold Loewy --  of the Supreme Courts' Fourth Amendment rulings.

Grits highlights the following from a talk by Loewy:

Frankly, I would rate the Supreme Court’s use of history as spotty and inconsistent. Let’s compare, for example, Watson v. United States and Tennessee v. Garner. In Watson, the Court examined the history of the right to arrest without a warrant for a felony which the police officer has probable cause to believe was committed by the arrestee. The Court concluded correctly that at common law arrests for a previously committed felony without a warrant were permitted. Substantially, but not exclusively, because of this history, the Court upheld the right to make a warrantless arrest for a previously-committed felony.

So far so good, but there is one major question that the Court did not ask, despite the urging of Justice Marshall’s concurrence: That question is whether the concept of felony meant the same today as it did at common law when the “no need for a warrant” rule developed. The answer seems to be pretty clearly “no.” At common law, all felonies were both violent and capital. Consequently when a police officer saw a felon at large, it was likely a violent individual, who, if he escaped, would escape the hangman.

Watson, on the other hand, was a non-violent credit card defrauder, who in modern times, is a felon. Well, does history demand that this type of felon be treated the same way as the violent felons for which the common law did not require a warrant? My answer would be either “no,” or at least “not necessarily.” Surely the common law rule calling for the arrest of violent, capital felons tells us little about whether the same rule applies to non-violent defrauders, such as Watson.
Loewy highlights, repeatedly, the requirement that searches be "reasonable" but criticizes its consistency in how it defines what is and isn't reasonable, and whether the court thinks that it is its job to apply it in every case where a question is raised.

Again, an extended Loewy quote from Grits -- this involves a court case that stemmed from an incident in Lago Vistam where Highway 6 intersects I-45:

The operative word in ... the Fourth Amendment ... is “reasonable.” Indeed, in case after case, the Court has emphasized that the overarching principle of the Fourth Amendment is reasonableness. Most of the time when the Court cites “reasonableness” as the overarching principle, it does so to uphold a search; e.g. There is no need for a warrant here because the search comports with the overarching principle of reasonableness. Without regard to the correctness of those decisions, one would have thought that the same principle (if indeed it is a principle) would have applied in Atwater. But it did not. The Court conceded that as applied to Atwater herself, the arrest was clearly unreasonable. As the Court so starkly put it: “Atwater’s claim to live free of pointless indignity and confinement clearly outweighs anything the City can raise against it specific to her case.”

So, one might have thought that the finding of individual unreasonableness would have ended the case, but it did not. Rather, the Court continued: “But we have traditionally recognized that a responsible Fourth Amendment balance is not well served by standards requiring sensitive, case-by-case determinations of government need, lest every discretionary judgment in the field be converted into an occasion for constitutional review.”

Yet just five years earlier, in Ohio v. Robinette, the Court had said: “We have long held that the ‘touchstone of the Fourth Amendment is reasonableness.’ Reasonableness in turn is measured in objective terms by examining the totality of the circumstances. In applying this test we have consistently eschewed bright-line rules, instead emphasizing the fact specific nature of the inquiry.”

I suppose that a cynic could say that it all depends on whose ox is gored. If the police win with a bright-line rule (as in Atwater) then bright-line rules are good. But if a citizen wins by employing a bright-line rule (as in Robinette) that is bad. I am inclined to favor flexibility (so that Atwater would have won, and frankly so would Robinette, if flexibility had been applied properly). But, however one might resolve that question, we can surely expect more consistency (and more reasonableness) from the Court than we saw in Atwater.

The Road to Serfdom

Frederick Hayek's Road to Serfdom has been promoted recently by opponents of policies passed by Democrats in Congress and supported by President Obama. Written during World War II and the heyday of Nazism and the rise of Communism, the book argued that a society where governments centrally plan their economies inevitably become tyrannical. The debatable question is whether universal health care, countercyclical economic policymaking (the stimulus), and banking re-regulation pushes the nation towards tyranny, or whether they are sensible means of addressing national problems. It's a worthy argument.

One writer argues that he sees tendencies towards "serfdom" in each party's agendas. Are both Democrats and Republicans supporting (separate) policies that enhance the power of the state? Democrats seek to expand government's power over the economic sphere while Republicans support expansions of police activity.

This article is useful in many contexts, including our upcoming discussion of civil liberties in 2301.

For more background:
- Wikipedia: The Road to Serfdom.
- Google Books.
- The Illustrated Road to Serfdom.
- Ummmmm...What's a Serf?