Month: September 2018

Privacy and Property

Privacy and Property

This week’s segment of Cline on the Constitution

 

Privacy and Property

 

One momentous decision of the Supreme Court’s last term involved cell-phone privacy.

 

In Carpenter vs. U.S., penned by Chief Justice Roberts, the Court found that data collected from a cell phone that pinpointed a suspected robber’s movements over 127 days involving 12,898 location points violated the target’s privacy rights.  It found that he had “an expectation of privacy” in the data on his cell phone.

 

While most of us assume the information on our cell phones is private, legally it has been far from clear that the protection from governmental intrusion is of constitutional dimension. The Court regularly employs an “expectation of privacy” test. Essentially, a person must have a “objectively reasonable” expectation of privacy in the area to be searched.

 

The “expectation of privacy” test was derived from the landmark case Katz vs. U.S. The court found it that case that a listening device attached to the outside of a telephone booth violated the Fourth Amendment. (Most of my students have never seen a telephone booth. I show them a picture) The court ruled that the Fourth Amendment prohibition against unreasonable search and seizure was violated since the occupant of the phone booth had a “reasonable expectation of privacy.”

 

In order to reach the holding in Carpenter, however, the Roberts court had to ignore two of its own precedents that held there was no “expectation of privacy” in records held by a third party.  In United States v Miller, the court held there was no expectation of privacy in financial records held by a bank and in United States vs. Smith it held there was no expectation of privacy in records of telephone numbers conveyed to the telephone company.  So, can we reasonably say we have an expectation of privacy when our cell phone data is held by a third party, i.e. the entities that operate the servers over which the data flows or is stored.

 

The Carpenter case had to stretch the rationale for the decision to fit the Expectation of Privacy doctrine. And the way it did so gives us a potential roadmap for how the law will develop in the future.  Given the interdependence of modern technology, the Expectation of Privacy test is either going to have be refined or replaced.

 

I will go into more detail on the Carpenter case in my next blog, but I thought it might be worthwhile to explore how the Court was able to arrive at the decision it did.  It gives us a hint of where the jurisprudence might go.

 

One of the cases the Roberts court cited repeatedly was a decision written by the brilliant Justice Antonin Scalia. The case was actually discussed by the nominee in the Kavanaugh hearings though it went over every senator’s head with exception of Senator Lee from Utah.

 

The case was U.S. vs, Jones. The government attached a GPS device to a car and left it on beyond the time authorized by a warrant.  Scalia, to the consternation of the justices in the minority found it was unnecessary to consider the Katz “Expectation of Privacy” test because the government’s action was a trespass against the Property rights of the car owner.

 

And here we pause. Property Rights?  Are they important anymore?  We might want to pay attention since the Far Left has unleased the dogs of socialism.

 

The Fourth Amendment protects “The right of the People to be secure in their persons, houses, papers and effects against unreasonable search and seizure.”  Note it says nothing about privacy rights; what it does talk about are property rights: “houses, papers and effects.” In Scalia’s historical analysis he argued that the framers plainly included this language to protect against the trespass of these property rights by the government.

 

One more example:  The Fifth Amendment provides that no person shall be “deprived of life, liberty, orproperty, without Due Process of Law”. As originally written the provision was a restriction on only the Federal Government.  The Fourteenth Amendment, passed after the Civil War, made it applicable to the States.  “Nor shall any State deprive any person of life, liberty, or property without Due Process of Law.”

 

Were property rights put on a par with rights to life and liberty by the drafters of the Constitution?  In contemporary society, a premium is put on protecting individual rights and liberties.  Okay.  But did the framers, in their wise and prudent efforts to protect us from governmental oppression, know something we have lost sight of regarding the rights to property?

 

Let’s drill down just a little further.

 

John Locke and the natural rights theory, that is that our rights are given us by our maker not granted to us by a government, led to the explicit protection of unenumerated rights in the Ninth Amendment.  And one of those unenumerated rights is the Right of Privacy which we hold so dear today. Privacy encompasses a broad range of “rights” such as abortion, marriage and, now, Cell phone privacy.  Though we traditionally trace the right of privacy to decisions written by the likes of Justice Douglas in the sixties, ironically, the first time the term was used by the Supreme Court was a business/contract case circa 1938.

 

Besides John Locke there were actually two other early influencers on Hamilton, Jefferson, Madison, and John Adams.

 

And now for some concepts I brazenly lifted from studies on the philosophical underpinnings of the Constitution.  Go ahead and read it.  It won’t hurt.

 

Thomas Hobbes (1588-1679) believed Man is most actuated by self-preservation and, therefore, seeks power in all its forms.  Yet Man is not a beast in the jungle and realizes in anarchy only brute force prevails. Man, therefore, surrenders some of his rights to government, in return for protection and order. He, thereby, insures himself a society where cunning rather than strength is the essence.

 

Hobbes’s attitude toward the nature of Man coincided with the old Puritan doctrine of Man’s depravity and justified the “property consciousness of an acquisitive young society.”  Those same utterances can be traced to the Federalism constructs of Alexander Hamilton.

 

John Locke (1632-1704) differed with Hobbes on many things, though they shared the view of the perverse and predatory nature of Man and agreed that government was necessary to prevent anarchy. The form the government should take was where they differed. Like Hobbes, Locke believed that to curb man’s perversity of his own nature, man creates government and in so doing willingly surrenders some measure of his natural rights in return for security for person and property.  However, man does not sign over a blank check.  To Locke, government is a function of the governed, existing by their consent and responsible to them for its actions.  Government is not a Sovereign but rather a Fiduciary, a property concept.

 

All men, Locke said, have a natural instinct for life, liberty, and property.  The first two of those Man holds in common with beasts, but the third, property, is peculiar to man alone. It is in the view of Locke and others justified by the Bible.  “God has given the earth to the Children of men.”

 

He concludes that the rights of life and liberty can to a large degree be obtained in the state of nature, but the right to property is insured only under government.

 

“The great and chief end,” he says, “therefore, of men uniting into commonwealths and putting themselves under government, is the preservation of their property.”  He felt the right of property was inviolable and that government is bound by social contract to protect that right and may never abrogate it without the consent of the property owner.  He felt that in times of war and emergency, the government can conscript the life and limit the freedom of the individual, but may never arbitrarily remove his possessions.

 

Locke in exalting the three virtues of life, liberty, and property, argued the greatest of these is property.

 

The third philosophical influence, Jacques Rousseau (1712-1778) was a disciple of Locke, but a far more sanguine believer in the natural goodness of Man. He bemoaned Man’s acquisitive nature and discoursed on his belief that in a state of nature where the fruits of the earth are available to all, Man is “a noble savage” ignorant, satisfied, and perfectly free.  When private property is introduced, Man begins to lose his natural goodness.  Government is there, he believed, to protect private property, and therefore is corrupting. A significant concession.  He therefore, advocated for a pure democratic form of government, in which sovereignty rests in the people.

 

Our founders, however, viewed Rousseau’s views dimly and his view that the general good is more important than personal possessions had no appeal to them though his ideas about universal education and the virtues of agrarian life, were later reflected in the views of Jefferson and ultimately, Andrew Jackson.

 

Heavy stuff.

 

But, it does establish that property rights to the framers of the Constitution were extremely important. And to maintain true freedom, they felt, the government should be restricted in interference with an individual’s property rights.  Something we should keep in mind when we contemplate the schemes the government in Sacramento is contemplating.  They have many grand schemes, including universal health care for citizen and non-citizen alike.  They have to pay for many of these grand schemes, not with their money, but with ours. There is no other funding source. And for the average citizens, whose major possessions are their automobiles and homes, one might be concerned that their property rights being whittle away by a government who wants to decide how they are to live, how they are to drive, and how they are to enjoy the property they own.

 

In my next segment I will try to connect this up to how the Supreme Court is going to handle this crossroad.  And how Constitutional law is headed for a collision between Privacy and Property.

 

For more articles on the Constitution and other writings  by Phil Cline, visit philcline.com

 

Laugh like a young man

Laugh like a young man

Trigger Warning. Caution:  This poem tends to glorify being a man.

 

Laugh as a Young Man Laughs

 

Laugh as a young man laughs.

Laugh hearty, laugh out loud,

 

Laugh at facing a day’s hard work,

Laugh at the wobble in your knees

Hauling hundred pound sacks of “taters”

Balanced across your shoulders.

 

Laugh and lug the loads up the ramp,

In the back of the big Mac Truck trailer.

 

Laugh at how damn hot it is gets,

At the sweat dripping off your forehead,

Running in your eyes and stings like hell,

Laugh at the damn forecast cause it’s only going to get hotter.

 

Laugh like a man laughs

As he strips the rotten shingles,

Splashes the black tar, shoots the nails

Into the new shakes on the old roof.

 

Laugh at the beer headache from the night before,

Laugh at needing to piss real bad,

Laugh at the cussing from the young wife

For flirting with a buddy’s girlfriend.

 

Tune up the News, laugh at the stupidity

Of pundits, presidents, prime ministers

And the local councilman

Who sells used cars during the day.

 

Laugh as they scheme to steal your wages

And spend your Money

At night meetings in empty chambers.

Laugh cause you know they’re all thieves,

 

Every one of them.

 

Laugh in your soul at how good to feel

Your muscles strain and push and pull

And dig and wedge, and turn and wrench

Until some mighty thing you’ve decided to move, moves.

 

Sling a sledge, chop an ax down hard,

Split the wood, explode the bark.

Feel the cool sweat return,

Rivulets down the back, over the belly,

 

The way it does when you work hard,

Gets the poison out,

Toughens the sinews, bulges up the arms

Bulks up the shoulders.

 

Breathe in the dirt and dust swirling

From your hits, stomps, kicks, and slams.

Could get you hurt?  Yeah!  And hell, if it does, laugh,

Got to do the work, so the hell with it.

 

Grit your teeth, smile, and “gett’er done” anyway.

Brag, yell, say what you think.  Don’t whisper,

Don’t’ chant, don’t hum nonsensical crap.

Be sure of everything, exclaim your beliefs to everyone,

 

Whoop it up, Shout out, In their face,

Laugh at the soft, weak, snotty effete professors of profanity

Who’ve never thumped a shovel in the ground

Turned over the dark earth, never crumbled clods in their hands

 

And who fear the offense of being a man.

Laugh as they shrink, and if they move to fight, club them back down

Sneer at their bowing and scrapping.

Laugh at their cringe, at their sniveling.

 

Know, by God, you are not wrong.

Laugh and go ahead, go forward,

It’s a job to do and, by God, it feels good to have a strong heart

Beating in a rhythm, a cadence in time with strong legs and arms

 

And the will to build,

Then tear up, then shatter,

Then erect it back up and then

Tear it right down again.

 

Don the pads and take the field

Tackle a runner and slam him to the ground,

Laugh when he moans and utters “good hit.”

Break up a double play and spike the shortstop,

 

Go on the court and Dunk the ball.  Hard!

Make the backboard shake, your defender cower,

Humiliated, mad as hell at you.

Laugh at the fear in his eyes when you drive toward him again.

 

Jump in a muscle car, a combustion engine!

Blow blue smoke in the atmosphere. Break the speed limit.

Hit the pedal, press it all the way down, peg the tach,

Go fast. Push a “vette into a curve too fast and

Pedal down! Accelerate out.

 

Ski head long down the high hills,

Those way beyond your skill.

Walk out on the edge of the cliff

And feel the danger of falling and laugh,

 

Show off and do a funny dance

Almost fall over and down the canyon laughing,

 

Launch on the ocean when its roiling.

Turn the sail boat sideways into the wind,

Race the storm to shore

Dare it to catch you, swamp you.

 

Walk down the avenue in the storm.

Out yell the thunder. Light a smelly cigar,

Lift your face heavenward

And dare the lighting.

 

Shoot a shotgun.  Feel the boom,

The shock, the force, the power,

And laugh at the splitting target.

And fire it again while your ears still ring.

 

Howl and joke with the whores

Standing on the corner.

Laugh cause your wit can never match theirs,

Laugh cause they know how stupid men really are.

 

Jump in the middle of drunken brawl,

Sock somebody in the jaw, sucker punch some dickhead,

Then buy them a drink and grab a hunk of beefsteak or ice pack

For the black eye he gave you right back.

 

And, Man, listen, if they come for us. Go to war. Fight the bastards.

Kill the sons’a’bitches with a knife, a gun, a grenade,

Blow them up with a shell from a tank.

Laugh over their bodies, kick them in the side of the head.

 

Laugh as you ship home

Laugh as you care for the widow and orphan

Because it’s hard, sacrifice is hard,

Duty is hard.

 

But you owe it to your brother

As he owes it to you.

 

And while you’re at it, Kick the bum off your sidewalk.

Laugh at his drunken curses

As he rolls around in the gutter,

Getting his filthy blanket soaked.

 

Then buy him a steak dinner

With mashed potatoes, with all the fixings

And, yes, a beer and laugh at his sorry tale

Cause they are all sorry tales.

 

Drive a cement truck, its big belly spinning.

Keep it going and turning so the cement

Don’t cure, then pour a foundation,

And carve your initials in the wet pavement.

 

Shift the transmission

On the big Caterpillar,

Ram it into gear,

Will it up the mountain road

 

So you can dig out the old road,

Haul it away and scrape level the ground for a new road.

 

Feel the strength in your shoulders and chest

As you wrestle a bridge in place,

Span it over the gorge, build it to last a hundred years.

Laugh at the hundred years.

 

Step heavy and loud into the forest.  Leave the camera.

Fell the redwood tree, chop it down,

Strap it to the long bed truck

And drive it to the mill.

 

Strip the bark, plane it through the giant saws.

Laugh when you tell how you cut off your forefinger

Right up to the knuckle because the damn board jumped

When it bounced off a knot in the wood.

 

Roughhouse with the dog.

Get him fired up and fighting.

Snarling and growling,

See if you can make him bite.

 

And laugh at his barking at you

Because he can’t out rough you.

 

And when you get tired, lay down,

Sprawl across the clean sheets

In your dirty sweaty clothes

And take your pulse and laugh

 

At the life beating, pumping under your wrist,

Deep in your chest, echoing across the canyons and gullies

Of your town, your nation, your region

And reverberating

 

In the laugher of other young men

Of every kind, on every other side of the planet,

In every time and every place.

Laugh it up with the young guys.

 

 

Cline on the Constitution

Cline on the Constitution

Justice Kavanaugh and Letting Sleeping Dogs Lie

 

Tuesday morning the Senate will open hearings on the confirmation of Justice Brett Kavanaugh’s nomination to the Supreme Court.   The candidate has lived an honorable life, is well liked, enjoys a reputation as a good and decent man, and is an experienced and imminently qualified jurist who has served a decade on the most important Court of Appeals in the land.

 

So, what can we expect of the hearing?

 

We can expect the hearing to be interrupted by vulgar screaming demonstrators in mass produced t-shirts, we can expect Justice Kavanaugh and his family to be subjected to sustained scurrilous attacks by self-serving, self-promoting, shameless Senators who have already made up their mind but see theatrical opportunity for personal advancement in permanently damaging the man’s good character.

 

Okay.  We live with that.

 

But hidden among the garbage, we can also expect a few nuggets of Constitutional law worthy of discussion.  Much of it will center on past case decisions of the Supreme Court.  In those discussions, we will probably hear phrases like “Case Precedent” and “Stare Decisis”.  Important concepts.  What do they actually mean? And why are they important?

 

One example relevant to the hearings:  Lines of questioning about Roe v Wade promise to be repetitive. Roe v Wade is the case which first held the Right to Privacy encompasses the right of a woman to terminate a pregnancy under certain circumstances.  The inquiries will concern the nominee’s commitment to Roe v Wade as “Case Precedent” and whether he may or may not vote to overrule the decision. This is where the rules of “Stare decisis” come into play.

 

The words are, obviously, Latin. They mean “standing by the decision.” The term is actually derived the from the Latin phrase, “stare decisis et non quieta movere,”or “stand by matters that have been decided and do not disturb what is tranquil.”

 

A lot of wisdom in that. As Geoffrey Chaucer said in 1380, “it is nought good a slepying hound to wake.” Or as us country boys would say “Let sleeping dogs lie.” But of course, we lawyers have to dress it up a tinge. We say, “It is a fundamental policy of our law that, except in unusual circumstances, a court’s determination on a point of law will be followed by courts of the same or lower rank in later cases presenting the same legal issue.”

 

Makes sense when you think about it.  To the extent possible we want our law to be predictable, stable and secure. We want it to be uniform, efficient and we want courts to act with a modicum of constraint in changing what has become accepted law.

 

One Supreme Court Justice put it thus, “(u)nless we wish anarchy to prevail within the federal judicial system, a precedent of this Court must be followed by the lower federal courts no matter how misguided the judges of those courts may think it to be.”

 

And as the famous Justice Benjamin Cardozo said, “(t)he labor of judges would be increased almost to the breaking point if every past decision could be reopened in every case, and one could not lay one’s own course of bricks on the secure foundation of the courses laid by others who had gone before him.”

 

All fine sentiments, but is the worry that changing the make-up of the Supreme Court could endanger established case precedent real?  After all, Chief Justice Charles Evans Hughes once said, “We are under a Constitution, but the Constitution is what the judges say it is, . . .”

 

In fact, the Court has reversed itself over two hundred times and three quarters of those were Constitutional decisions. The most famous example is the landmark decision of Brown v Board of Education which reversed previous court’s decision which had sanctioned “Separate but Equal” in the field of education.

 

I recently read an article in a legal journal about a book I knew about, but which I’ve never read and don’t intend to.  The book is an 800-page tome named “The Law of Judicial Precedent.” As Justice Neil Gorsuch stated during his confirmation hearings, “It makes an excellent doorstop.”

Interestingly enough, not only was Justice Gorsuch among many other legal scholars a contributing author, but so was Justice Kavanaugh.

 

The book (I choose to rely on the article’s summary in the legal journal than to read such a monstrosity), theorizes the doctrine of stare decisis applies less rigidly in constitutional cases than it does in statutory cases because the correction of an erroneous constitutional decision by the legislature is well-nigh impossible.  For example, the Congress can more easily pass a law correcting a Court decision about a Coal mine than one interpreting Free Speech.

 

On the other hand, the treatise states, “If at least five members of the Court are sufficiently convinced that the law has gone gravely wrong, then the Court will exercise its prerogative to overrule the earlier case and put things aright.”

 

But like legal matters, even Judges (although local ones especially have to be frequently reminded of this) are not free to willy-nilly rule one way or the other.  The values of reliable precedent must be upheld so the court uses factors in analyzing when a prior case should be overruled.  Because of space concerns I won’t go over all of the factors, but it is well to note that the Court used such an approach in its recent decision to overrule case precedents involving “union closed shops.” After weighing the value and reliability of these case precedents, they found it was unconstitutional to require all government employees to pay union dues whether they belonged to the Union or not.

 

The vote was 5-4.  Gorsuch (and Kennedy) was in the majority.

 

For more Cline on the Constitution and other writings by Phil Cline visit philcline.com