Posts Tagged ‘constitution’

15
Mar

Reinterpreting the Fourth Amendment

   Posted by: Robert    in Law

I recently happened across an article published by Jed Rubenfeld in the Stanford Law Review entitled The End of Privacy.  Although that phrase is usually thrown about in the context of discussions about how the government is increasingly intruding into private life (and let me just say, Mr. NSA Agent, you have a very handsome shirt), the essence Mr. Rubenfeld’s article actually has almost nothing to do with that.  Instead, his core argument is against believing that the Fourth Amendment is a privacy amendment at all.  His argument is interesting on several levels.

From a textualist standpoint, Mr. Rubenfeld gets us a fair bit closer to what the Fourth Amendment actually says than anything the courts have done in recent memory.  His essential argument begins with the observation that the word “private” does not appear anywhere in the Fourth Amendment.  The word “secure” does.  Therefore, what the Fourth Amendment must actually protect is security rather than privacy, or the “reasonable expectation” (Katz v. United States, Harlan, J., concurring) thereof.

If the textual argument alone is unpersuasive, Mr. Rubenfeld goes on to dismantle the “reasonable expectation” doctrine, and does so rather handily.  He points out the circularity problem, which boils down to the observation that the amount of privacy a person can “reasonabl[y] expect[]” is fundamentally tied to how much privacy they know they are actually being afforded.  Mr. Rubenfeld tells us that the courts have avoided the circularity problem by “root[ing] individuals’ privacy expectations in widespread social norms drawn … from outside the law enforcement context.” (The End of Privacy, pg 8)  This avoidance mechanism, as a practical matter, has led the courts to develop what Mr. Rubenfeld calls the “Stranger Principle,” the principle that anything “we have exposed to perfect strangers, we cannot claim to be private.” (ibid)  Replace “perfect strangers” with “third parties” (Smith v. Maryland) and you have the effective destruction of any meaningful limit on what information the government might actually be able to obtain.

With the privacy logic thus dealt with, Mr. Rubenfeld moves on to talking about security.  At the risk of oversimplifying what would often be a subtle distinction, what Mr. Rubenfeld seems to be proposing is a reading of the Fourth Amendment in which the government is disabled from not only taking information from you directly, but also from taking information indirectly through third parties, and from conducting espionage undercover operations against its own citizens.

The remainder of the article eventually turns to arguments of how this approach to the Fourth Amendment could have stopped Bush from doing some of the things he allegedly did.  I found these arguments to be overstated, though they did expose some interesting other aspects of Mr. Rubenfeld’s thinking.  Of greatest interest was his conception of the Fourth Amendment as being both an individual and collective right in which the individual security right may be violated when the government engages in activities (e.g. NSA wiretapping) which tend to decrease the sense of security held by society as a whole.  Also interesting was his view that courts would be disabled from engaging in balancing tests.

Although it is a bit long for general consumption, there is a lot to like about Mr. Rubenfeld’s article.  His foundation strikes me as being a whole lot closer to the actual text of the Fourth Amendment than the current practices of the courts.  That is not, of course, to say that his argument is perfect, and it appears to leave some important questions unanswered.  it does, however, create a good starting point for anyone looking for a way out of the wilderness of Fourth Amendment “privacy.”

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21
Feb

Shenanigans of Law in Alabama

   Posted by: Robert    in Law

I happened across a curious post on one of my more liberal leaning legal blogs a couple of days ago.  Apparently, a group of voters has filed a lawsuit in one of Alabama’s circuit courts challenging the legality of the Constitution adopted by the state in 1901.  The complaint and supporting document present the claim that the Alabama Constitution is invalid under the Federal Constitution.  Their complaint essentially boils down to the argument that the Constitution was ratified as a result of racist, pro-white voter fraud, making the document and the government it creates illegitimate.  As I see it, this complaint faces a number of deep flaws.

The first and most obvious question to ask in a case like this is, “What about the 14th Amendment?”  It is relied on as one of the two main authorities in the case under which the plaintiffs seek to have the Alabama Constitution declared invalid.  However, as the Utah Supreme Court observed in Dyett v. Turner, there are historical reasons to doubt the legitimacy of the 14th Amendment as well.  Despite these comments from the Utah Supreme Court, there is no indication that any court (Utah’s Supreme Court included) actually believes that the 14th Amendment is not, in fact, an enforceable part of the Federal Constitution.

Moving on to more legalistic matters, the Alabama courts would face an immediate problem if they rule in favor of the plaintiffs in this case.  Plaintifss seek, as a remedy, that the Court “issue a permanent injunction enjoining the [State] from continuing to enforce the [Alabama Constitution].”  More to the point, they believe that the “Constitution was never passed by the people of Alabama” and is, therefore, “invalid.”  If the Court rules that the Alabama Constitution is invalid, it must necessarily also rule that it has no legal authority upon which to base its judgment.  Like all of the other departments of government, Alabama’s judicial department derives its authority, ultimately, from the Alabama Constitution.  Therefore, if plaintiffs are correct, they have asked for relief from a tribunal which has no more legal authority than I have.

Since plaintiffs would put me on equal footing with the Alabama courts, I might as well spend a moment or two talking about the actual merits of their claim.  I find it interesting that in their entire complaint, plaintiffs cite only a few brief words in regard to things like poll taxes and property requirements which, even assuming that those are sitll operative provisions of the Alabama Constitution, are assuredly not enforced (or enforceable).  Importantly, although “[t]he harm … is experienced by each new generation of voters,” (complaint) they fail to set out any harm more tangible than some kind of inherited disenfranchisement.  This  hardly strikes me as the type of claim which is “concrete and particularized” (Lujan v. Defenders of Wildlife).  As far as the complaints about the racist history and language go, I know of no precedent holding that laws with racist history or which use racist language are automatically invalid in the absence of actual racial disparity, and there is no actual disparity claimed.

With a bit of luck, the Alabama courts will find a way to resolve this case quickly and at minimal taxpayer expense.  The easy, obvious, and proper thing to do would be to dismiss the case on a matter of standing or some other preliminary issue without even giving the lawyers an opportunity to try presenting the merits of their claim.  To be sure, logic forbids any Alabama court from ruling in plaintiffs’ favor, which is reason enough to bounce the case as soon as possible.

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14
Feb

The Census and the Constitution

   Posted by: Robert    in Law

A couple of days ago, I happened to be linked to an opinion piece written by Michael Barone of US News and World Report.  In his writing, Mr. Barone holds up an argument, which I suppose he tripped over in his wandering around the Internet, which seems to imply without outright stating the author’s belief that the White House cannot constitutionally oversee the Census.  My skill at reading tea leaves is a bit on the weak side on this issue, but the impression I get is that this issue is going to linger for a while before finally being put to rest.  What should be clearer than Mr. Barone or the argument he discovered suggest is that the propriety of White House involvement in the Census is entirely a policy concern.  There is nothing unconstitutional to be found here.

The argument cited by Mr. Barone makes much ado about whether it is the President or Congress with authority over the Census.  As the argument goes, “the Constitution did not place the census function in Article II – the Executive branch but in Article I – the Legislative branch, it is not at all within the President’s reach unless the legislature places it there.” (emphasis original) The problem with this line of reasoning is that within the President’s reach is exactly where Congress chose to place the Census.  In particular, the Census is run by the Census Bureau, which is part of the Department of Commerce.  The Department of Commerce is the department run by the Secretary of Commerce.  The Secretary of Commerce, of course, is a member of the President’s Cabinet.  The Census Bureau, therefore, is within the Executive Branch.

To make the point even more strongly, consider the argument’s statement that “Director of the Census … shall perform such duties as may be imposed upon him by law, regulations, or orders of the Secretary.” (internal quotation marks omitted) (citing 13 USC 1.21) This passage establishes a line of authority from the Secretary of Commerce to the Director of the Census.  The argument then goes on to note that there is “[n]o president mentioned.”  However, that note fails to consider the law in context.  The President certainly can issue orders to the Secretary, including an order that the Secretary order the Director to do something.  It is the merest of formalism to think that the President could not issue an order to the Director directly.

The argument concludes by telling us that “[t]he Secretary of Commerce does not even report his findings to the President, but rather is instructed to ‘publish’ them.”  Unfortunately, this is simply wrong.  According to the Census Act, “[t]he tabulation of total population by States … as required for the apportionment of Representatives in Congress among the several States shall be completed within 9 months after the census date and reported by the Secretary to the President of the United States. Using this information, the President must then transmit to the Congress a statement showing the whole number of persons in each State … and the number of Representatives to which each State would be entitled.” (Department of Commerce vs. US House) (internal quotations omitted, citations omitted, emphasis added)  The inescapable conclusion is that the President is involved in this process on the basis of specific instructions of law.

Of course, none of this is to say that the President has the authority to declare that the Census be conducted in a way other than what the law allows.  He is still bound by the “[m]anner” described “by [l]aw” (US Const., A1, S2) and it is certainly an important exercise to ensure that he does not step outside the law.  However, his involvement alone is not sufficient to form the basis of a legal complaint, and it certainly is not unconstitutional.

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