Category: Bill of Rights

Cline on the Constitution-New Segment

Cline on the Constitution-New Segment

Roe v Wade

 

I have been studying with interest a series of decisions the Supreme Court rendered as their latest term came to a close. If the decisions shared one characteristic is was the impression that the Court was exercising unusual restraint in being definitive in their opinions.  It was as if they were engaged in a holding action.   Great fun for me, but not so much for those looking for final answers. Then before I could post any updates to my legal blog, Justice Kennedy announced his retirement.  That explained a lot about the tentativeness of the Court in taking a firm position.

 

As with almost everything else in our public life these days, Kennedy’s announcement sent the left’s commentariat into paroxysms of panic.  To hear it told, the pending retirement of an 80 plus years old justice is the latest harbinger of doom for the republic.  Batten down the hatches.  The fear of the change borders on the irrational.  Rather ironic considering the man who appointed Justice Kennedy was none other than President Ronald Reagan.

 

Will the seating of a new justice bring some changes to Constitutional Jurisprudence?  Sure.  Always does. Moreover, in an era of 5-4 decisions an evolution in some aspects of the how the Supreme court interprets cases is inevitable.

 

Does it spell the end? Of course not.

 

I thought it might be helpful to look beyond the fear mongering and scare tactics to explore some of the constitutional issues that will be getting a lot of discussion in the coming months as the process of appointment by the President and approval or rejection by the Senate progresses.  I’ll get back to the new cases in the coming weeks.   Lots of good stuff there, but it can wait a little while.

 

Two issues will receive a lot of discussion.  The first is Gay Rights.  Justice Kennedy penned a series of leading decisions in the area.  His approach was novel and not without controversy. And none of the decisions had the full support of the rest of the Supreme Court.  More 5-4 decisions.

 

I will explore the issue in a future blog, but first let’s discuss the biggest bogeyman of all: Roe v. Wade and the abortion issue.

 

Let me start with one simple proposition.  Some Senators and others have made statements to the effect that the Supreme Court will “criminalize” abortion.  The Supreme Court doesn’t criminalize anything.  Under our Federalist system, matters such as abortion traditionally were the province of the States.  The Supreme court is concerned with whether the legislative acts of states impinge upon rights guaranteed under the Constitution.  That is their role.  While I don’t believe Roe v Wade will be overruled, even if it was, it does not mean the federal government, or the Court will make abortions illegal.  It would mean that under our federalist system the issue would fall back to the states.  And there are those who have always believed that is the way should be. In the 1992 Planned Parenthood v. Casey case (more on this case later) Justice Scalia wrote about the abortion issue:

 

“. . . by foreclosing all democratic outlet for the deep passions this issue arouses, by banishing the issue from the political forum that gives all participants, even the losers, the satisfaction of a fair hearing and an honest fight, by continuing the imposition of a rigid national rule instead of allowing for regional differences, the Court merely prolongs and intensifies the anguish.  We should get out of this area, where we have no right to be, and where we do neither ourselves nor the country any good by remaining.”

 

Roe v Wade’s central holding is that the Right to Privacy extends to a woman’s decision to choose an abortion.

 

I’ve written in prior blogs about the origins of the Right to Privacy.  Though not explicitly set out in the Bill of Rights, Privacy is a “liberty” protected by the Due Process clauses of the Fifth and Fourteenths amendments.  Under traditional analysis, the government may not interfere with such a right unless there is a compelling interest in doing so and the legislative act or regulation is narrowly focused to address the evil it purports to regulate.  This last is known as the Strict Scrutiny test. It doesn’t mean the government can never restrain a right, but if it attempts to do so, it must pass the Strict Scrutiny test which is very difficult to do.

 

In this context the development of constitutional law related to abortion rose first in various state governments attempts to restrict the distribution of contraceptive information and materials.  In Griswold v Connecticut in 1965 Justice Douglass wrote that the Right to Privacy protected a couple and their doctor from prosecution for trafficking in such materials.  Reproductive rights as a subset of the Right to Privacy came to its full flower in 1972 when the Supreme Court struct down similar laws restricting access to contraceptives to unmarried couples.  Justice Brennan wrote, “if the right to privacy means anything, it is the right of individuals, married or single, to be free from unwarranted governmental intrusion into matters so fundamentally affecting a person as the decision whether to bear or beget a child.”

 

The next year Roe v Wade came along.  It was a difficult decision for the justices.  It was actually heard once, including oral argument and an opinion was written and circulated.  But before it was published the Chief Justice decided to set the matter over to the following term to be reargued and a new opinion written.  There was a lot of infighting and back room maneuvering among the justices, but eventually the decision was written and published.

 

One of the striking things about the Roe v Wade is that the opinion was written by Justice Blackmun, an appointee of Richard Nixon.  And to the further surprise of many on the left at the time it was joined in by Chief Justice Warren Burger, also appointed by Nixon.  Which should engender a bit of caution to prognosticators. Being an unreformed prognosticator myself, I try to remember that predictions concerning how particular justices will come down on particular issues based on their party affiliation or the preference of the President who appoints them, once they are confirmed are notoriously inaccurate.

 

Roe v Wade was a natural development in the law of the Right to Privacy.  But it is also important to realize what the Roe v Wade rule is and where the fight has actually been.  At no time has the Roe v Wade or its progeny protected an unlimited right of a woman to have an abortion free of state regulation.  The fight has always been on the over WHEN during the pregnancy the government may restrict a woman’s right to choose and HOW the government may regulate in the area.

 

In Roe v Wade, the government’s interest in regulating was recognized in accordance with a trimester analysis.  The woman’s right was strongest in the first trimester and the government’s interest in the health of the woman and the fetus was most compelling in the last trimester.

 

Justice Sandra O’Connor before she was appointed to the Supreme Court (by Ronald Reagan) was especially critical of the trimester analysis.  She knew the science was wrong.  The real issue in her mind was the line of viability, that is when the fetus can survive outside the womb.  And she rightly predicted that the line would continue to be pushed back as science and understanding improve.

 

She wrote the opinion in Planned Parenthood v Casey in 1992.  And it was here where she and the Supreme Court abandoned the trimester analysis of Roe v Wade.  She changed the test.  Hence forth the test would be whether the government’s regulation was “unduly burdensome” on a woman’s right to terminate a pregnancy “pre-viability.”  But she also made it clear that Roe v Wade had established a woman’s right to choose.

 

O’Connor wrote: “The woman’s right to terminate her pregnancy before viability is the most central principle of Roe v Wade.  It is a rule of law and a component of liberty we cannot renounce.”

 

These two appointees of Presidents Richard Nixon and Ronald Reagan established the right of a woman to terminate a pregnancy and confirmed it as a rule of law which cannot be renounced. It cannot be gainsaid that just because the new justice may be have been vetted by the Federalist Society does not lead to the conclusion that the reversal of Roe v Wade is inevitable.

 

The real issue is how the Court will decide cases concerning State attempts to regulate how abortions are performed and access to services.  For example, imposing restrictions on the licensing of abortion clinics, or hospital privileges for doctors who perform abortions.  That is actually where the fight has been and will continue to be. Not whether a woman has the right. She does and that is unlikely to change.

 

In a 2016 case, Whole Women’s Health v Hellerstedt the undue burden test fashioned by O’Connor was fleshed out to be whether “unnecessary health regulations have the purpose or effect of presenting a substantial obstacle to a woman seeking an abortion” and so “impose an undue burden on the right.”

 

Can we predict how the Supreme Court will rule on future cases dealing with right to abortion? Here is a salient point.  Roe v Wade in 1973 was decided 7 to 2.   Casey in 1992 was decided 5 to 4.  Whole Women’s health in 2016 was decided 5 to 4.  Kennedy in both Casey and Whole Women’s Health was one of the five in the majority.

 

It would seem to indicate a change was very possible.  However, in the individual opinions the debate was largely what test to apply to a particular regulation, not whether the central holding of Roe v Wade, the right of a woman to terminate a pregnancy, would be upheld.  That central holding is not going to change.

 

 

 

 

 

 

 

 

 

 

 

 

Fresno State

Fresno State

I have followed with interest the discussions regarding hateful tweets concerning Barbara Bush by a Fresno State college professor.  As expected the President of the College declined to do anything.  College presidents across the nation are not exactly distinguishing themselves with displays of courage and leadership no matter how embarrassing the conduct of their staff or students.  If you expect them to take a stand don’t wait outside in the rain.  You will expire of pneumonia before they take any definitive action.  Today a college presidency is more about public relations and fundraising than leadership.  Not sure “President” is a descriptive term for their role anymore.

 

Now to the tweets and the Constitution.

 

The first question is simple.  Was this a freedom of speech issue?  The First Amendment, as interpreted by the Supreme Court, provides that no action of the government may “abridge freedom of speech.”  Nothing was done to her by the government.  Could there have been?

 

She is an employee of a public university that operates with public funding. It was something of a cop out to maintain she did this privately. There is no doubt she was speaking as a college professor.  She knows she is speaking as an employee of the college and even brags about the six-figure salary she is paid from the public treasury.  She even adds that tenure makes her untouchable.  She, therefore, according to her lights, can say what she wants to say, no matter how vulgar or hateful.  It is striking that she has so little regard for the hard-working people who pay the highest state taxes in the nation, people trying to make ends meet and feed their families, so she can lounge around lobbing F bombs.

 

Were Fresno State to proceed against her, because of its public status, it would constitute state action and, therefore, the protections of the First Amendment apply.

 

The next question is how far does the First Amendment go in protecting her as a public employee?

 

In 1892 the famous jurist Oliver Wendel Holmes, in addressing whether the speech of public employees could be restricted without violating the First Amendment said, “The petitioner may have a constitutional right to talk politics, but he has no constitutional right to be a policeman.  There are few employments for hire in which the servant does not agree to suspend his constitutional right of free speech, as well of idleness, by the implied terms of his contract. The servant cannot complain, as he takes the employment on the terms which are offered him.”

 

Holmes was a great legal mind, but his view, did not prevail.  Over the next century, the Supreme court sought to find a balance between the interests of the public employer in promoting the efficiency of the public services it performs through its employees and the interests of the employee as a citizen. Generally, they upheld the right of the employee to speak out on matters of public interest.

 

In 1983, a little over a hundred years after Holmes pronouncement, in the case of Connick v Myers, the court upheld an employer’s right to dismiss an employee who engaged in speech activity that interfered with the operation of the public office.  But emphasized the speech activity did not rise to a matter of public concern. The case involved a deputy district attorney who was fired for attempting to organize a group of employees to complain about work assignments.  Justice White wrote, “When employee expression cannot be fairly considered as relating to any matter of political, social, or other concern to the community, government officials should enjoy wide latitude in managing their offices, without intrusive oversight by the judiciary in the name of the [First Amendment].”

 

He went on the state that the “…. balance requires full consideration of the government’s interest in the effective and efficient fulfillment of its responsibilities to the public.”

 

This line of cases reached its fulfillment in Rankin v. McPhersonin 1987 which has similarities to the present situation.  In that case, A clerical employee was fired for remarking after hearing of the attempted assassination of President Reagan, “if they go for him again, I hope they get him.”

 

Justice Marshall wrote the opinion of the court. In a close 5 to 4 ruling, the court held that the employee’s remarks were protected.  The majority determined the remark did concern a matter of public concern and in balancing the interests of the state in the “effective functioning” of the office against the employee’s interest in free expression, they came down on the side of the free expression. However, they found it important that this was a single off-hand comment to a co-worker.   Not sure what we heard from the professor was a single off-hand comment.

 

Justice Scalia wrote for the four justices who dissented from the ruling.  He said, “no law enforcement agency is required by the First Amendment to permit one of its employees to ride with the cops and cheer for the robbers.”

 

One further consideration in this area has not gotten a lot of discussion.  California has a mini “Hatch Act.”  A Hatch act prohibits active political campaigning by public employees under certain circumstances, especially while on duty.  The Supreme court has repeatedly upheld Hatch Act prosecutions.

 

Do we really believe that this is a private expression, that these same sentiments and worse have not been propounded in a classroom to a captive audience of public college students?

If so, (and it would be easy to find out and prove if there was a sincere interest on the part of the college administration to prevent such reprehensible conduct), the courts might not be so solicitous of her expressions.

 

 

The second major issue involves the evident encouragement and actual threats of violence the woman made. The leading case in the area comes from the Brandenburg case decided in 1969.   Brandenburg was a Klan leader who inartfully encouraged his followers to use guns to exact what he termed, “revengeance.”  I must say, from what I read, the college professor’s language skills appear to be about on a par with Mr. Brandenburg.

 

In Brandenburg, the court revised rules from a half century of supreme court decisions to form what is known as the Brandenburg rule.  It states that government may not suppress speech unless the speech is “directed to inciting or producing imminent lawless action and is likely to incite or produce such action.”

 

There doesn’t appear to be an incitement to “imminent” lawless action by the professor. The timing is ambiguous.  Beyond that one has difficulty over the “likely” element.  After all, can we really imagine this disgusting woman waddling out in front of an army of insurrectionists marching forward to spark a revolution? The only entity one can imagine being in actual danger would be a Dunkin’ Donuts shop along the way.

 

One of the underlying values of the First Amendment is to allow the venting of even the most awful expressions of the lowest of society.  The utterances of this person are on a level with Louis Farrakhan, the Klan, and the virulent anti-Semitism of the Fascist regimes of World War II.  Their raw expressions are protected by the First Amendment.  The difference is this person’s hateful racist comments emerge from behind the protective curtain of a public university.

Due Process

Due Process

Due Process

 

The President of the United States recently questioned whether some people’s reputations and lives are being unfairly destroyed by public charges of misconduct, including allegations of domestic violence.  He wondered withal Due Process?

 

The persons he was referring to may indeed be guilty of what they are alleged to have done, but what is this reference to Due Process all about?

 

In my profession we always started off any case of spousal abuse assuming the victim was being truthful, and insuring an environment was created for the safe reporting of the crime and the preservation and presentation of evidence.  As the understanding of the dynamics of domestic violence increased over the years we even adopted a policy of removing the discretion of whether to proceed with the case from the victim.  Doing so insured they could not be pressured either by the abuser or the abuser’s lawyer to drop the case.

 

But those measure aside, we were also mindful of our duty regarding the Due Process rights of the person being accused. Due Process isn’t just a legal nicety.  It is a fundamental tenet of our system of laws. We might have railed against the exclusionary rule which could lead to the unreasonable suppression of probative evidence, but never Due Process.  Due Process is foundational.

 

The Bill of Rights has two different amendments concerning Due Process.  The Fifth Amendment protects persons from a deprivation of life, liberty or property without Due Process of Law.  It applies to the Federal Government.  The Fourteenth Amendment, passed after the civil war, provides the same protection from State governments and their political subdivisions.

 

Taken together, at every level of government, local, state or federal, when someone is deprived of life, liberty or property they are entitled to Due Process.  And, yes, Jobs and reputation are recognized as property interests protected by the Due Process clause.

 

As the Supreme Court has interpreted and developed the jurisprudence surrounding the clauses they have concentrated on two different dimensions of Due Process.

 

The first is “Procedural Due Process” or what one can refer to as the “How. ”How” is life, liberty or property to be taken away?   The second is “Substantive Do Process” which is concerned with the “What.” That is, “What” rights and interests and liberties are protected?  In other words the deprivation must adhere to standards in “How” it takes place and the deprivation must be of something recognized as a fundamental liberty, “the What”.

 

The later deserves detailed treatment since it is ultimately the means by which other rights or “liberties” including implied rights such as Privacy, are protected. But the Reference the President made really was really about Procedural Due Process, that is the “How.”

 

Procedural Due Process is about “Fairness.”  A person must be afforded adequate notice of what exactly he is being charged with, he must be given an opportunity to respond to allegations, the ultimate decision must be made by a neutral fact finder and there should be a right to appeal an erroneous decision. It’s the ultimate guard against anyone being rode roughshod to destitution or prison for that matter. And as regards our system of laws, indeed our Constitution, it is fundamental.

 

It is striking that a President referring to this deep seated American value is met with such rabid, virulent, vehement responses, both by certain members of the press and those who should know better.   No doubt, he should have expressed concern for the victims but, in truth his question about Procedural Due Process, about punishment visited on an accused without a full and fair hearing, was apropos.  It was wholly consistent with principles that form the foundation of our Democracy.

 

And contrary to some commentary, Principles like Due Process are not limited to the Courtroom.  They apply in the workplace and everywhere else where life, liberty and property interests are involved. As described by the Supreme Court, these principles are “implicit in the concept of ordered liberty” and are “so rooted in the traditions and conscience of our people as to be ranked as fundamental.”

Privacy Continued

Privacy Continued

Another case on the Frontiers of the Privacy concept.

 

In another context we have a case that was just argued to the Ninth Circuit Court of Appeals.  Since it’s the Ninth, we can’t tell what the outcome will be except that what is healthy and good for larger society will not be a major consideration of most justices occupying that bench.

 

This case involves a disabled male who wished to procure the services of a prostitute in the privacy of his own home and three former sex workers who wished to satisfy his desires.  Seems reasonable enough.  Except for a troublesome state law that specifies Prostitution is a crime. One can go to jail for soliciting a prostitute or engaging in sex for money.

 

It’s always interesting to see who files Friend of the Court briefs in such cases.  Of course the ACLU supports overturning the prostitution statue, but so does Black Women for wellness, the California Women’s Law Center and even something called Children of the Night.  No doubt the women in these organization would march against any man who boorishly pats their fanny or puts his hand on their knee, but think nothing of defending the exploitation of women by pimps, drug dealers and gang members.

 

And then there is the moral underpinning of the law.  Not so much a consideration in a society increasingly proud of its secularlism.

 

Oh well, so how did we get here?

 

Let’s look at a couple cases on Privacy of sexual relationships.

 

In 2003 the Supreme Court decided Lawrence v. Texas.  Justice Kennedy wrote the majority decision (6-3) which held that a law which permitted heterosexual sodomy, but banned homosexual sodomy was unconstitutional under the Fourteenth Amendment’s Due Process clause.  It was found to deprive persons of a fundamental liberty to make decisions regarding adult, consensual, and private sexual activity.  It is a landmark decision and since its publication it has been used to challenge a whole host of governmental regulations.

 

Justice Scalia writing in dissent pointed out a fundamental problem with relying on a court decision to change rules and regulations governing society.  He carefully argued that while he is not adverse to gay rights, it is not a proper role of the courts to change the rules.

 

He said, “Let’s be clear I have nothing against homosexuals or any other group, promoting their agenda through normal democratic means.  Social perceptions of sexual and other morality change over time, and every group has the right to persuade its fellow citizens that its view of such matters is the best. . .  But persuading one’ fellow citizens is one thing, and imposing ones’ view in absence of democratic majority will is something else. . . (as by) the invention of a brand new “constitutional right” by a Court impatient of democratic change.   It is indeed true that “later generations can see that laws once thought necessary and proper in fact serve only to oppress”; and when that happens, later generations can repeal those laws, but it is the premise of our system that those judgements are to be made by the people, and not be imposed by a governing caste that knows best. . . “

 

This defining debate continued on in the Obergefell v Hodges cases decided in 2015.  Again, the majority decision (5-4) was written by Justice Kennedy and found the right of same sex couples to marry was a fundamental liberty protected by the Fourteenth Amendment Equal Protection and Due Process clauses.  Justice Kennedy’s words are echoed in the cases by both sides of the argument.  He said, “new insights and societal understandings can reveal unjustified inequality within our most fundamental institutions that once passed unnoticed and unchallenged.”

 

In a similar vein he wrote “that the nature of injustice is that we may not always see it in our own times.  .  . and so we entrusted to future generations a charter protecting the rights of all persons to enjoy liberty as we learn its meaning.”

 

Justice Scalia, again in dissent does not quarrel with the concept, but only with whether it was left to future generations of citizens to exercise their democratic prerogatives or future generations of judges who would decide for the rest of us. He wrote “Today’s decree says that my ruler and the ruler of 320 million Americans coast-to-coast, is a majority of nine lawyers on the Supreme Court . . . With each decision of ours that takes from the People a question properly left to them – with each decision that is unabashedly, based not on law, but on the “personal judgement” of a bare majority of this Court-we move a step closer to being reminded or our impotence.”

 

And he means by that at some point, the Supreme court will face a harsh reminder that the judiciary is indeed the weakest branch of government with neither the power of arms or the purse.  He clearly sees a danger in the “hubris” of the court.

 

If you are a member of a group being denied the same rights as other citizens, how patient must you be and for how long must you be?  It’s hard to truly appreciate how our fellow citizens feel, unless you are a member of that group.  On the other hand, what of democracy?  Slow, plodding, inefficient democracy?  Do we believe in it or not?

 

Returning to the Prostitution case, the sides argued a plethora of “liberty” issues may be involved, all the way from freedom of association to privacy of relationships.  They asked can there be such a thing as privacy of relationships  when there is money on the table or I guess you could say “skin in the game.”  (Pardon the pun). But the ultimate question is whether these matters are for the people to decide through their elected representatives or is up to the court to overturn a law criminalizing conduct that has been against the laws of most states (though not all) for the life of the republic.  Who gets to decide?

 

We are still working it out.

 

 

Effects

Effects

“Effects”

 

A man was suspected of masterminding a series of robberies. He was apprehended and convicted. On appeal he alleged the police violated his rights when they recorded his movements and locations by accessing cell phone data from his service provider. In November, that case argued before the United States Supreme Court. A decision is pending.

 

Fifteen years ago, a police officer wanted to know where a suspected drug dealer was going. He surreptitiously placed a GPS device on the undercarriage of the man’s car and remotely monitored his travels. He was caught and convicted. He also alleged his rights were violated and appealed the case to the Supreme Court. The Supreme Court agreed and reversed his conviction.

 

Are the cases similar? Sure. Well, except for the technology.

 

Will the cases be decided the same? Being a true lawyer, I will answer like a lawyer does. “Well, maybe, but not necessarily.”

 

The Fourth Amendment states, “the right of the people to be secure in their persons, houses, papers, and EFFECTS, against unreasonable searches and seizures, shall not be violated.” (emphasis added.)

 

In United States vs. Jones, decided in 2012 the justices of the Supreme Court decided the car owner’s Fourth Amendment rights had indeed been violated by the attachment of the GPS device to the man’s car. What makes the case interesting and what it may portend for the pending decision concerning cell phones is the majority opinion penned by Justice Scalia.

 

Because though all the justices agreed on the outcome, they didn’t all agree on why or how they arrived at their conclusion. And Justice’s Scalia’s opinion drew the ire of other members of the court. Though he focused on the original meaning of the Fourth Amendment, ironically some of the justices considered his approach novel.

 

Two intellectual tracks are at play here. One is the jurisprudence that has grown up around the Fourth Amendment since the landmark case of Katz v. United States decided in 1967. In that case the government placed a listening device on the outside of a telephone booth. (For you oldsters out there, I show my students pictures of telephone booths since many of them have never seen one!).

 

In the Katz case a concurring opinion established a test later decisions of the Supreme Court made the standard. It held that the person inside the phone booth had a “reasonable expectation of privacy” and the listening in by the police was a search and was illegal.

 

Not to overly simplify, but the term ”reasonable expectation of privacy” became the jumping off point for 50 years of litigation afterwards.

 

What Justice Scalia opinion in the Jones case did and which other justices found objectionable was to depart from the “reasonable expectation of privacy” test and go back to the Fourth Amendment’s language and consider the matter from a “property” viewpoint? After all it does say, “persons, property, papers and effects.” 75% of that phrase refers to property.

 

In referring to the English antecedents to the Fourth Amendment he cited Lord Camden who once said, “Our law holds the property of every man so sacred, that no man can set his foot upon his neighbor’s close without his leave; if he does he is a trespasser, though he does no damage at all; if he will tread upon his neighbor’s ground, he must justify it by law.”

 

Justice Scalia went on to discuss the “close connection” of the Fourth Amendment to property rights. He points out if that were not the case the words “Persons, houses, papers and effects,” would have been superfluous. The drafters of the Constitution were master wordsmiths. One thing they didn’t do was use superfluous language.

 

Justice Scalia, in the Jones case, held the automobile was an “effect” and the government’s attachment of a monitoring device to its undercarriage was an illegal search. It cannot be gainsaid that the other justices engaged in an attenuated argument to say that one has a “reasonable expectation of privacy” in the undercarriage of a car. It’s open to the road and accessible to any mechanic or member of the public who cares to bend over enough to observe its contours or walk by it while it is up on a rack for an oil change. However, when you consider the protection afforded the Fourth Amendment from a property perspective, the argument that there was an illegal search is stronger. Being an “effect”, like Justice Scalia stated, the car is protected by the Fourth Amendment and the Government would need a warrant supported by probable cause and signed by a neutral magistrate before attaching their tracking device.

 

Now we return to the pending decision concerning cell phones. The argument that we reasonably expect to keep the information on our cell phones private is problematical. Departing from my lawyer language, it really doesn’t hold water.

 

Every person with a modicum of intelligence knows the information on a cell phone is shared with hundreds if not thousands of people. If it’s out there on the Cloud, how can we say we have an expectation of privacy?   And in fact the Government in the pending case is arguing that sharing the information with the operators of the servers shows it is not expected to be kept private. One can persuasively argue that Privacy as we understand it, at least in this context is a dead concept anyway.   Just consider how much of your activity online is tracked by public and private interests. It’s why when you look on Amazon for a car cover, you all of a sudden begin receiving advertisements on Facebook about car covers.

 

The more logical argument to make on the pending case is to say cell phones are property: they are our “effects” and the Fourth Amendment protects them against the trespasses of the government.

 

Justice Scalia is gone now, but it will be interesting if any of the other justices embrace his approach. Given the rapid change in technology. The old tests are going to have to be revised in some fashion.

 

Bill of Rights, Part Four

Bill of Rights, Part Four

The Bill of Rights – Part Four

 

In this series we explore 1) the Source of the Bill of Rights, 2) Who’s rights are protected 3) Whom are the rights protected from, and 4) What rights are protected.

 

In the final part of this series we address what rights are protected by the Bill of Rights.

 

In order to appreciate the scope of the rights protected by the Bill of Rights it helps to understand there are two major categories. The first are “Enumerated” Rights and the Second are “Unenumberated” Rights.

 

The Bill of Rights is traditionally understood to comprise the First Ten Amendments to the Constitution. Those amendments are essentially a list of rights. They are “Enumerated.” And include the most venerated of our rights, rights that were clearly on the mind of our framers as human rights that needed protection from overreaching by the new powerful government of the United States.

 

Freedom of Speech, Freedom of Religions, the Right to Bear Arms, the Right to be Free from Illegal Search and Seizure, the Right against Self Incrimination, the Right to Counsel, to a Public Trial and the Right not to be subjected to Cruel and Unusual Punishment all are explicitly set out as a list of enumerated rights.   But that isn’t the end of the story.

 

As my previous posts explained the Ninth Amendment states “The Enumeration in the Constitution of certain rights shall not be construed to deny or disparage OTHERS retained by the People.” (emphasis added.) This language is the primary source for “Unenumerated” Rights, which though not expressly listed, are protected by the Bill of Rights.

 

Essentially the Supreme Court has held that there are, in Justice Cardozo’s words, certain “principles of justice so rooted in the traditions and conscience of our people as to be ranked as fundamental,” and that “neither freedom or justice would exist if there are sacrificed.” And the concern that no list could encompass them all lead to the inclusion of the Ninth Amendment and its reference to “other” rights.

 

The recognition of “Unenumerated” rights was given modern impetus by Justice Douglas’s writing in Griswold v. Connecticut. In that case he stated “Our cases suggest that specific guarantees in the Bill of Rights have penumbras, formed by emanations from those guarantees that help give them life and substance. Various guarantees create a Zone of Privacy.” “Penumbras” to Douglas represented shadows that exist in the other Amendments that taken together give rise to a Right of Privacy.

 

Over the years since Griswold was decided in 1965, the Right to Privacy has been expanded by the Supreme court into an umbrella of concepts under which exists the right to Abortion, the Right to Interstate Travel, the Right of Adults to engage in any consensual sexual activity they choose, and the right of Gay couples to marry, among others.

 

The latest case in this rapid expansion of “Unenumerated” rights (Oberegefell concerning Same Sex marriage) seems to be a harbinger of a new generation, an even wider array of previously unrecognized rights. In that opinion, Justice Kennedy observed, “New insights and societal understandings can reveal unjustified inequality within our fundamental institutions that once passed unnoticed and unchallenged.” He went on to say, “The nature of injustice is that WE MAY NOT ALWAYS SEE IT IN OURSELVES. The generation that wrote the Bill of Rights did not presume to know the extent of freedom in all its dimensions, and so ENTRUSTED TO FUTURE GENERATIONS a charter protecting the rights of all persons to enjoy liberty AS WE LEARN IT’S MEANING.” (emphasis added.)

 

Fair enough, but one is left to wonder if the framers meant to leave such determinations to a “future generation” of unelected, unaccountable committee of nine judges instead of the larger society of a practicing democracy—you know—that portion of the future generations which includes the rest of us.

 

 

 

Bill of Rights – Part Three

Bill of Rights – Part Three

The Bill of Rights – Part Three

 

In this series we explore 1) the Source of the Bill of Rights, 2) Who’s rights are protected 3) Whom are the rights protected from, and 4) What rights are protected.

 

In Part Three we discuss from Whom are the rights in the Bill of Rights protected.

 

In short the Constitution protects us from the Government. Private conduct, generally, is not the subject of the protections afforded by the Bill of Rights. We can be as foolish, cruel, or nasty to our fellow men and women as our nature dictates for the worst reasons or no reason at all without running afoul of the Constitution.

 

(That is not to say that the law will completely ignore private conduct in all instances. Civil Rights legislation both at the Federal and State levels does reach what would in other instances be private conduct. But that legislation can be changed without the arduous process of amending the Constitution, the Supreme Law of the land.)

 

For most of the life of the Republic the Bill of Rights only protected from actions of the Federal Government. For example, the First Amendment reads “Congress shall make no law” abridging Freedom of Speech or Religion. It says nothing about whether the States can pass laws abridging Freedom of Speech or Religion. To be sure, States have always had their own constitutions that protected specific rights, but the coverage of U.S. Constitution was limited to the Federal government.

 

That changed with the passage of the Fourteenth Amendment after the Civil War. The Fourteenth Amendment Due Process clause provides “nor shall any State deprive any person of Life, Liberty, or Property without Due Process of Law.”

 

We already had a Due Process clause (see the Fifth Amendment), but the Fourteenth Amendment specifically applies to the States. And it is that word “Liberty” that opened up a pathway for the Supreme Court.

 

In a series of decisions over a number of decades The Court held that most of the Bill of Rights were individual “Liberties” and the Due Process clause applied to protect our these “liberties” of our citizens from not only the Federal Government, but the State Governments and all their political subdivisions, including Counties, Cities, School Districts and other governmental entities.

 

This is the Selective Incorporation Doctrine. It is Selective because it took a while and was not wholesale. Between 1896 and 1972, one by one, case by case, all but a few of the provisions of the Bill of Rights were incorporated into the Fourteenth Amendment Due Process clause and made applicable to the States.

 

Included are the First Amendment (Speech and Religion), Second (Arms), Fourth (Arrest, Search and Seizure), Fifth (Self-Incrimination, but not the guarantee of Grand Jury Indictment), Sixth (Counsel and Trial), Eight (Cruel and Unusual punishment, but not excessive fines or bail.)

 

Lastly, as we will more thoroughly discuss in the next segment, certain “unenumerated” rights, that is those that are not specified in the Constitution, but which the Supreme Court has defined as “Liberties” such as Privacy (abortion, sexual practices, Gay marriage) are also protected from encroachment by all levels of government.

 

 

 

 

 

 

Bill of Rights – Part Two

Bill of Rights – Part Two

The Bill of Rights – Part Two

 

In this series we explore 1) the Source of the Bill of Rights, 2) Who’s rights are protected 3) Whom are the rights protected from, and 4) What rights are protected.

 

In Part Two we consider who is protected by the Bill of Rights.

 

Though the scope of the issue is too broad for one blog post, it is possible to get an overall appreciation for the reach of the Bill of Rights by looking at classes of persons who may be protected by the Bill of Rights as being arrayed along a spectrum.

 

At one end is the easiest category to define: citizens of the United States residing within the jurisdictional borders of the United States.

 

At the other end of the spectrum is a class of persons who are neither citizen nor reside within the jurisdictional borders of the United States.

 

Between those extremes are other classes of persons with varying degrees of citizenship and connections to the country.

 

As one studies how the Supreme Court addresses each category of persons never far below the surface is the concept of Natural Law which I discussed in Part One. If, as many of the Framers believed, Fundamental Rights are bestowed on us by our creator and exist separately from any man-made law including the Constitution, the population protected by the Bill of Rights is not limited by the concepts of citizenship or physical location.

 

A couple of real life examples put this in context:

 

Al Awaki was an American Citizen living in Yemen who broadcast Muslim jihadist screeds urging attacks against the United States. He was intentionally killed in a drone strike ordered by the American government. In an existential sense that was a very good thing. He was an enemy combatant and did not deserve the niceties of Due Process and Trial by Jury. And he certainly wasn’t afforded them.

 

Similarly, just this week, a recent immigrant influenced by the same religious philosophy, murdered innocent American citizens on the Streets of New York. He was shot, unfortunately lived, and now is in custody. Is he protected by the full panoply of our Bill of Rights? Or, if he is declared an enemy combatant like Al Awaki, can he be denied those rights and as President Trump initially suggested be sent to Guantanamo Bay?

 

Modernly, a good place to start looking for answers is by examining how The Supreme Court defines the word “People.”

 

The Preamble to the Constitution states the Constitution is ordained and established by “the People of the United States.” The words “the People” can be found in the Second Amendment (bear arms), Fourth amendment (search and seizure), but not the Fifth Amendment (due process and self incrimination), and Sixth amendment (fair trial, counsel). By contrast those later amendments use the words “Person” or “Accused.”

 

Significantly, however, the phrase “the People” is also found in the Ninth Amendment (“other” rights retained by “the People” – see previous post in this series) and the Tenth Amendment (all other “Powers” retained by “the States or People”).

 

So who are “the People”?

 

Let’s return to the far end of my fictional spectrum. Does the Bill of Rights apply to a non-citizen residing outside the United States.

 

In United States v. Verdugo-Urquidez, (1990) the defendant was a leader of a violent drug cartel in Mexico. He was also a citizen of Mexico, who lived in Mexico. The United States Drug Enforcement Administration obtained a warrant for his arrest. After he was captured in a raid on his residence in Mexico by Mexican police he was transported him to the border where he was turned over the U.S. authorities. The DEA then, working again with local Mexican authorities, searched his property in Mexico for evidence of his drug dealing.

 

When brought to trial he invoked the Fourth Amendment in an attempt to suppress the evidence gathered against him. He alleged as a citizen of Mexico, he enjoyed the protections of our Bill of Rights concerning searches of his property in that foreign nation.

 

In rejecting his claim, Chief Justice Rehnquist wrote that the phrase “the People” as used by the framers was a “word of art.” That it refers to “a class of persons who are part of the national community or who have otherwise developed sufficient connection with this country to be considered part of this community.”

 

He went on to say “The available historical data show, therefore, that the purpose of the Fourth Amendment was to protect the people of the United States against arbitrary action of their own government; it was never suggested that the provision was intended to restrain the actions of the Federal Government against aliens outside of the United States territory . . . . “

 

In a dissent in that same case, Justice Brennan joined by Justice Thurgood Marshall made an enduring statement that encapsulates the idea of Natural law.

 

In discussing the drafting of the Constitution and the Bill of Rights he said, “Americans vehemently attacked the notion that rights were matters of “favor and grace,” given to the People by their government. Thus the Framers of the Bill of Rights did not purport to “create” rights. Rather they designed the Bill of Rights to prohibit our Government from infringing rights and liberties presumed to be pre-existing.” He went on to argue “it is thus extremely unlikely that the framers intended the narrow construction of the term, “the people” presented today by the majority.”

 

Inching forward on the spectrum, in Hamdi v Rumsfeld, (2004) Justice Sandra Day O’Connor wrote an opinion confirming that an American Citizen who was captured in Afghanistan fighting for the Taliban, could be held at Guantanamo Bay as long as he was given a means to challenge his classification as an enemy combatant. Albeit he did not have to be granted the full benefit of the normal array of rights afforded an accused. For example the determination could be done by a military tribunal and rules of hearsay and other evidentiary protections could be suspended.

 

Traveling further along the spectrum,

 

The protections of the Bill of Rights apply differently even to certain classes of citizens residing in the United States. For example, juveniles in public schools do not enjoy the same range of protections as adults.

 

As we get along toward the middle of the spectrum we encounter non-citizens, aliens, residing in this country illegally. The courts are struggling everyday with this issue. Generally, all that can be currently said is that if they are here when they come into contact with the government, and are not deported, they are going to be granted the protection of certain rights mainly in the criminal justice arena.

 

Moving on along the spectrum, we find an interesting case the Supreme Court has been struggling with. It involves a young male citizen of Mexico who while standing on the Mexico side of the border was shot by a border patrol officer from the American side. Can he invoke the Bill of Rights? We expect a ruling this term.

 

Which brings us to a unique but often overlooked point on our spectrum: corporate entities. Does the Bill of Rights extend to a “for profit” corporation? Are Corporations “People” protected by the Bill of Rigths? And, if so, what does such a concept do to the theory of Natural Rights: that our rights are bestowed upon us by God?

 

In the famous “Citizen’s United” case, The Supreme Court held that the First Amendment Freedom of Speech provisions applied to an association that paid for broadcasts of a film critical of Hillary Clinton in violation of campaign finance laws.

 

Similarly, in the Hobby Lobby case the Court held that a closely held for profit corporation could invoke the Free Exercise of Religion clause of the First Amendment to refuse the requirement of the federal government that they provide access to abortion services in its employee’s health program.

 

Both of these cases were 5-4 decisions, but were frankly consistent with precedent.

 

Although broader societal issues get the most discussion, the foundation for both decisions rest on a legal fiction that Corporations are “People”. Courts, including the Supreme Court, have resorted to the device countless times.

 

For example the analysis in the Citizen’s United case that gets little notice is the Court’s discussion of how to protect the Freedom of Speech rights of Media Corporations. The talking head we see on T.V. isn’t the only one who needs the Bill of Rights protection. They are largely empty suits and interchangeable anyway. The newsgathering and reporting business is big business ran by huge corporate entities and for the First Amendment to survive, Freedom of Speech and the Press must apply to them.

 

Natural law as I wrote in my previous post had and continues to have a huge influence on how the Supreme Court approaches the Bill of Rights. And, admittedly, it is an attractive notion that each person has these God given rights even if not enumerated in the Bill of Rights. However, real life experience cautions that Natural Law is also something of a romantic notion that in practicality doesn’t hold up when the logic of Natural Law is extended to the logical ends of my imaginary spectrum.

 

Although my opinion vacillates from time to time, as is my right as an old broken down retired D.A. and erstwhile college professor, I currently hang my hat with those of our framers who insisted our Bill of Rights be enumerated and preserved as part of our constitutional legacy.

 

For more essays and other writings I invite you to visit my web site at philcline.com

 

 

 

 

 

The Bill of Rights

The Bill of Rights

I never tire of examining Power and how the Founders of our Nation framed the Constitution to provide a structure of governance that would be effective, but also how they built in restraints against the natural accretion of too much power in too few hands.

I am, however, watching with interest a number of cases before the Supreme Court this term that address “Rights” of our People as opposed to the power of their government. And every day, it seems new issues concerning our “Rights” arise. From kneeling football players to reverse discrimination on college campuses to the closing of abortion clinics, the issues are plentiful and important.

 

That being so, I wanted to craft a series of columns on the Bill of Rights to provide my readers with some points of reference as they consider how the Constitution applies to such situations.

 

In this series we will explore 1) the Source of the Bill of Rights, 2) Who’s rights does do they protect, 3) Whom does it protect the rights from, and 4) What rights are protected.

 

The Source:

 

First what exactly is The Bill of Rights?

 

Thomas Jefferson defined them as follows: “A Bill of Rights is what the People are entitled to against every government on earth, general or particular, and what no government should refuse or rest on inference.”

 

Historically, Americans consider the first 10 amendments to the Constitution as the Bill of Rights.   Among other liberties, they include Freedom of Speech, Religion, the Right to Bear Arms, the Right to be secure against Unlawful Search and Seizure, or Self-Incrimination, the Right to Trial and Counsel and not to be subjected to Cruel and Unusual Punishment.

 

Ironically, what we most treasure today as our express Constitutional rights almost never made it into the Constitution.

 

At the Constitutional convention there was a strong debate about whether such an express listing of rights was necessary and might even be dangerous. James Madison said, “ . . . an enumeration which is not complete is not safe.”

 

Influenced by Philosophers like John Locke and other adherents to “Natural Law” theory, many of the framers believed that our rights are God given. They are not granted to us by means of a social compact with a government, even a democratically elected government. We have these rights already. We, the People, “are endowed,” in the words of the Preamble, “with certain Inalienable rights.” For those who held this view, there was no need to set out the rights in some list. They pre-existed and existed separately from the Constitution.

 

There were, to be sure, contrary views.

 

After all, our forefathers were careful to build Checks and Balances into the Constitution and provide for the Separation of Powers. They had a healthy distrust of the strong centralized federal government they were forming and argued for the inclusion of a list of fundamental rights. Nevertheless, the Bill of Rights was not included in the original Constitution as it was adopted and reported out of the convention in 1789.

 

It was only after the ratification process had moved to the States that the demand for a Bill of Rights became an imperative. Their inclusion in the final ratification of the Constitution in 1791 was something of a political compromise. Though it was expected that 9 states (the required number for approval) would have voted for ratification even if no Bill of Rights was included, in the three largest states at the time, New York, Virginia and Massachusetts there were strong indications that unless included they would not go along.

 

The genius of the compromise that secured a unanimous vote by the States was the 9th amendment. It provided the safety valve, a means to insure that the listing of certain rights did not endanger the recognition of other “inalienable” rights.

 

The 9th Amendment reads, “The enumeration in the Constitution of certain rights shall not be construed to deny or disparage others retained by the People.”

 

I am endlessly fascinated by the language skills employed in the drafting of the Constitution. Three words are very important in that sentence.

 

First “retained.” The use of the word “retained’ signifies that rights are already possessed. Its use, as well as other phrasing in the Bill of Rights, presupposes our rights exist separate from the constitution.

 

The other two words are “Others” and “People.” What “other” rights are there? And whom all does the word “People” encompass”?

 

We will explore the breath of those two words in future segments.