No reasonable expectation of privacy

The ‘right to privacy‘ debate was dramatically revived Thursday as news reports spread saying the Obama Administration was seeking a court ruling so they could track cell phone usage, including the time and location of placed or received calls.

Even though police are tapping into the locations of mobile phones thousands of times a year, the legal ground rules remain unclear, and federal privacy laws written a generation ago are ambiguous at best. On Friday, the first federal appeals court to consider the topic will hear oral arguments (PDF) in a case that could establish new standards for locating wireless devices.

In that case, the Obama administration has argued that warrantless tracking is permitted because Americans enjoy no “reasonable expectation of privacy” in their–or at least their cell phones’–whereabouts. U.S. Department of Justice lawyers say that “a customer’s Fourth Amendment rights are not violated when the phone company reveals to the government its own records” that show where a mobile device placed and received calls.

Those claims have alarmed the ACLU and other civil liberties groups, which have opposed the Justice Department’s request and plan to tell the U.S. Third Circuit Court of Appeals in Philadelphia that Americans’ privacy deserves more protection and judicial oversight than what the administration has proposed.

“This is a critical question for privacy in the 21st century,” says Kevin Bankston, an attorney at the Electronic Frontier Foundation who will be arguing on Friday. “If the courts do side with the government, that means that everywhere we go, in the real world and online, will be an open book to the government unprotected by the Fourth Amendment.”

This begs the age-old question – does the Constitution afford a right to privacy? This also poses a dilemma for the GOP, who on one hand has countered for years that a very slim, if any, right to privacy exists – especially when it comes to a woman’s right to choose – and also in terms of warrantless wiretapping. On the other hand, they can’t very well come out and say ‘we support the Administration’s decision to seek authority to track every cell phone in America.’

It also seems a bit hypocritical coming from a Democrat Administration to say there is ‘no reasonable expectation of privacy’ afforded by federal statute or the Constitution. They have, opposite the GOP, for years argued the Bill of Rights creates a right to privacy out of the shadows of other Amendments.

We’re working on the ‘right to privacy’ in my Con Law class right now, so this is an interesting topic. I for one don’t think a right to privacy gives a woman the right to abort a child, even though I think the Framers definitely intended for some zone of privacy to exist when they wrote the Constitution. The principles within the 1st, 3rd, 4th, 5th and 9th Amendments are broad enough to create a right to privacy, regardless of the abortion issue. The Court endorsed this in Griswold many years ago.

Indeed, some of the Constitution’s framers were worried that by enumerating the people’s rights, some would interpret the Bill of Rights to be our only rights. I certainly think there are unenumerated rights not listed in the Constitution. I think those rights, like all of our rights, come from God and while not necessarily as unalienable as are the enumerated rights in the Constitution, they still deserve to be protected. I think a right to privacy is one of those rights.

The difference between the warrantless wiretapping that was endorsed by the Bush Administration and this should be noted. The Bush Administration sought to wiretap the phone calls of terrorists not protected by the Constitution as part of prosecuting a war. The Obama Administration has not made clear how tracking the cell phones of all Americans pertains to the War on Terror, if at all.

With that said, what stands out to me is blatant disregard for the same ‘right to privacy’ the left depends on to defend abortion.

Sabato misses the point

Mount Olympus?

There was quite a fuss over President Obama’s remark in the State of the Union that the Supreme Court opened the floodgates to special interest in its Citizens United opinion.

The President’s comments in full: “With all due deference to separation of powers, last week the Supreme Court reversed a century of law that I believe will open the floodgates for special interests –- including foreign corporations –- to spend without limit in our elections. (Applause.) I don’t think American elections should be bankrolled by America’s most powerful interests, or worse, by foreign entities. (Applause.) They should be decided by the American people. And I’d urge Democrats and Republicans to pass a bill that helps to correct some of these problems.”

There is something to be said about the President’s own inaccuracies, but many have already done so and I won’t be redundant.

I’m writing to address the response by Dr. Larry Sabato. Professor Sabato, as I hope to have the privledge of calling him next semester, responded to the President’s quote, Justice Samuel Alito’s response and the response of the media by writing for Politico.com.

In part he wrote that,

“Mr. Obama’s blunt attack on the Court’s ruling, with the members sitting in front of him, was no doubt stunning and unsettling to some, and it contradicted his frequent calls for bipartisanship and civility.

…

“At the same time, President Obama had every right to denounce a decision that is fundamentally at odds with his beliefs.

…

“Still, I believe the members of the Court are entirely too sheltered by lifetime tenure as well as often-obsequious deference to them during their public appearances. Comfortably ensconced on the constitutional equivalent of Mount Olympus, they can seem oblivious to the real-world consequences of their rulings. It is good for them to be challenged in public by the President and others.

…

“No one wants a brawl, but it is good for the Court to be reminded that it is not a hermetically sealed institution—and it’s good for the President to be reminded that how he says something is often as important as what he says.”

Professor Sabato has written before on his opinion that the Court is far too sheltered from the rest of American political development. He has argued against lifetime tenure, insteading pushing for non-renewable terms.

I think, however, the President’s comments and the response of many to the Court’s ruling exemplifies the very need for lifetime tenure and entirely insulated from “politics.”

Think for a moment if members of the Supreme Court did not have lifetime tenure. Would they have been more or less likely to issue a ruling many members of the current political party in power openly disagree with? Surely, less is the obvious answer. On the other hand, if Republicans were in power would they have been more or less likely to issue the ruling from two weeks ago? Obviously, more.

But because our Judges are appointed for a lifetime and need not to worry about being removed merely because of an opinion, they can issue opinions they deem as proper interpretations of the law.

Much can be said about campaign finance laws that restrict the voice of many, merely because they have more money, but that’s not the point at hand here. It is to say that because judges are relatively unaffected by partisan tides or the ebb and flow of political opinion, they can make decisions that perhaps in the long run are more beneficial to the Union as a whole.

Professor Sabato argues for non-renewable terms in his book “A More Prefect Constitution.” The problem with non-renewable terms is that Judges would still then be forced to worry about what to do once they leave the Supreme Court. A Judge who knows that in 10 years he will need to find another job, in my opinion, is more likely to curry favors or partisanship in his or her opinions.

The Supreme Court is an institution with a valuable role in American political development. The necessity for judicial review of both the Executive and the Legislative branch requires that the Court be immune to the factors that influence those branches and thus be immune to any influence those branches may attempt to exercise.

I think, Professor Sabato, fails to see this argument because he thinks “politics is a good thing” and indeed it is. But for American political development to operate as it was intended to and to ensure the Executive doesn’t ignore the Legislature and to ensure that neither the Executive nor the Legislature ignore the Constitution, an independent Judiciary is absolutely necessary.

On the legality of the death penalty

Later tonight, John Allen Muhammad will be executed for murder. Muhammad was the mastermind of the Washington DC area sniper attacks in 2002.

The Supreme Court and Virginia Governor Tim Kaine have refused clemency for Muhammad.

The man behind the 2002 sniper attacks in and around Washington DC will be put to death later, after a last-ditch appeal was thrown out.
John Allen Muhammad’s lawyers say he is mentally ill, but Virginia Governor Tim Kaine rejected a plea for clemency.

On Monday, the US Supreme Court quashed an appeal for a stay of execution.
Muhammad, 48, will face a lethal injection for the murder of Dean Harold Meyers, one of 10 people killed during the attacks.

There is much contemporary debate over the death penalty – both on its legality and morality. I will touch merely on the legality of the death penalty and leave morality for another day.

The death penalty has long had a presence in the American system of law. Traitors during the American revolution were tried and executed. In the 19th century, felons were hanged for their crimes. Today, the federal government, as well as states, executes criminals for certain crimes.

Regardless, some are opposed and call the death penalty a violation of one’s protection from cruel and unusual punishment via the 8th Amendment of the United States Constitution.

This is clear contradiction of the text itself. The proponents of a ban implicitly admit this and instead rely on an evolving interpretation of the Constitution as a basis for their argument. Writing in Roper v. Simmons, Justice Kennedy and the court decided to ban the death penalty for minors based on the “evolving standards of decency.”

As not to digress to much on this type of interpretation of our Constitution, I will merely leave off at saying I abhor the practice. It leaves our Constitution and the entire framework of law beneath it at the mercy of the conscience of men, or in the case of the Supreme Court, five unelected officers with lifetime appointments. The society has the free will and means to implement their evolving standards of decency in law and needs not the help of an unelected legislature.

The Constitution is to be read as it was written and should mean today what it meant upon its adoption. This is a safe standard by which the liberty of all can be guarded, but it leaves open the opportunity for a sufficient number of people, over the due course of time, to make the changes it feels necessary.

When the Constitution was adopted, the Death Penalty was not only permitted, but also written in to the document itself. If there is an issue where the intention of our framers is more clear, than I have yet to find it. The death penalty for the punishment of crimes committed against liberty and society is permitted by the very document that we recognize as the supreme law of our land.

*As a note, much of the logic of my argument and general thoughts are derived from an article written by Justice Antonin Scalia. Titled “God’s Justice and Ours,” the article appeared in the Christian Law Review, No. 156.