The New York Times has published two reviews of Mel Urofsky’s new biography of Louis Brandeis. I haven’t seen the book yet, but Mel had sent me the page proofs of several chapters earlier this year, and they were great.
Whiles the parts of the book I read struck me as admiring but with appropriate cautionary notes, Brandeis hagiography otherwise appears alive and well. In his review of the book, Alan Dershowitz writes that “the First Amendment’s right of free expression, the Fourth Amendment’s right to privacy and the due process clause’s focus on personal liberty (rather than property) all owe their current vitality to the creative genius of Justice Brandeis.”
With some reservations (Brandeis’s view of the First Amendment was much more utilitarian, in the sense of supporting free speech because he thought it would lead to further Progressive reform, than modern, more libertarian-oriented doctrine), I’ll concede the First Amendment point.
But Brandeis was no great hero of the Fourth Amendment. Brandeis, of course, authored a famous dissent in the 5–4 decision in Olmstead v. United States, holding that the fourth amendment prohibits warrantless wiretapping. But Brandeis was not a consistent advocate of a broad Fourth Amendment. For example, in Carroll v. United States, 267 U.S. 132 (1925), the Supreme Court upheld a warrantless search of a car on suspicion of transporting alcohol. The majority, including Justice Brandeis, concluded that automobiles are distinct from private dwellings for Fourth Amendment purposes. Justice McReynolds, joined by Justice Sutherland, dissented. More generally, the most consistent advocates of Fourth Amendment protections against the excesses of Prohibition enforcement came from several of the “conservative” Justices, especially Justice Pierce Butler, with Brandeis consistently voting in favor of the government.
When the liberal Warren Court chose to strictly enforce the Fourth Amendment, it naturally looked to helpful precedents, and also naturally sought to cite a “Progressive” forebear, and not one of the discredited “conservative” “Four Horsemen.” And therefore Olmstead became a canonical Fourth Amendment case.
With regard to the due process clause and personal liberty, Brandeis had little to do with the application of the due process clause to non-economic rights. The pioneer in this regard was Justice James McReynolds, who wrote the Court’s seminal opinions in Meyer v. Nebraska, Pierce v. Society of Sisters, and Farrington v. Tokushige. Brandeis joined all of these opinions, but he also made it clear in private conversations with Justice Felix Frankfurter that he supported limiting the Due Process Clause to procedural matters, or even repealing it entirely. If the Court was going to insist on applying the clause to substantive matters, however, Brandeis thought that educational freedom and other personal liberties should be given as much weight as economic concerns.
In short, it’s hard to see how Brandeis gets credit for “the due process clause’s focus on personal liberty,” except, again, that his presence in the majority in these cases allowed the Warren Court to rely on them, rather than ignore or dismiss them as products of the reactionary liberty of contract era.
Peter says:
Even though Brandeis was a moderate by later standards when it came to manufacturing rights, he is not without sin.
In his dissent in Olmstead, he inaugurated the hoary practice of extracting rts from multiple constitutional provisions that could not be fairly inferred from one. Thus, he is the actual father of ‘penumbras,’ ‘emanations,’ and similar nonsense.
If I recall correctly, he dissented in Olmstead on the legality of wiretaps of a person’s phone. As Taft properly stated, there was no search of the defendant or his home. only lines outside of his home were tapped.
Brandeis claimed that the fourth and fifth amendments bestowed a ‘right be let alone.’ There is no such general right. The mantra of laissez faire, in another form. Subst due process in defense of civil liberties is just lochnerism is another form.
Perhaps the single most overrated justice in the history of the Sup Ct.
Quote
September 29, 2009, 8:31 amDavid Bernstein says:
FWIW, I think the Olmstead dissent was correct, but only as a Ninth Amendment, not a Fourth Amendment, decision. A wiretap is not a search or seizure, but wiretaps didn’t exist in 1791, so the Framers couldn’t have thought to protect against them. A perfect opportunity to bring in the ninth.
Quote
September 29, 2009, 8:34 amEinhverfr says:
I think that Carroll seems incorrect today because subsequent technological developments have made the distinction unnecessary. I.e. telephonic warrants that an officer could apply for from his/her patrol car did not exist in 1925. The automobile exception was necessary then because the options open to officers where probable cause existed were not very large or satisfactory.
Rather I think that Carroll illustrates a rare flaw in our system of laws. Our courts are fundamentally backwards-looking, and any correction for available technology is very hard to retrofit without major problems. Consequently, a common-sense decision under the facts has lead to absurd results because the cost to change it is too high.
Quote
September 29, 2009, 9:27 amShelbyC says:
Drilling into someone else’s wire to detect the signal going through isn’t a search?
Quote
September 29, 2009, 9:33 amDavid Nieporent says:
I’m sure it is, but it’s a search of the telephone company’s wire, not the defendant.
Quote
September 29, 2009, 10:25 amShelbyC says:
Which is, of course, a different issue, and turns on questions like whether or not the defendant had an expectation of privacy in exchange for paying for the use of the wire, etc.
Quote
September 29, 2009, 10:44 amEinhverfr says:
DB:
Is this because you want to see a strong 9th Amendment?
I see it differently. The purpose of the third and fourth amendments is to protect individuals from undue government surveillance and control. This is done by prohibiting any requirement that soldiers be quartered in one’s home and insisting that searches of papers, persons, and homes must be reasonable and where appropriate subject to a warrant.
Papers do not lose their protected status when being delivered via a common carrier. The government can’t read all mail send through the USPS without a warrant. For this reason, think it is most reasonable to consider electronic communications to be “papers” for the purpose of fourth amendment analysis. (If a message is inscribed on a thin lead plate, folded– hiding the message, and sent via a common carrier, I can’t imagine it would be less protected than would the same message sent via paper. So I can’t see “papers” being distinct from “communications.”)
Quote
September 29, 2009, 10:55 amMartinned says:
I’ve always wondered about the concept of a warrant for the search of a car. It seems a bit drastic. But I guess if “telephonic warrants” are sufficient, the incovenience of the police wouldn’t be very great.
BTW, “rare flaw”? Are you serious? Like all things made by men, the law has many, many flaws. And that’s a good thing, too. What else would we talk about on VC?
Quote
September 29, 2009, 11:08 amEinhverfr says:
We have flaws in our laws, but this is a rare systemic flaw which cannot be reasonably corrected. The only option here is to change policy first, and then change the reading of the Constitution. Otherwise, a change in interpretation is just too disruptive.
Quote
September 29, 2009, 12:05 pmbrentpeterson01 says:
I’m not sure this is right. In Katz v. United States, the case that effectively overruled Olmstead, Justice Stewart didn’t even quote Justice Brandeis’s Olmstead dissent. I often read the claim that the approach in Justice Brandeis’s dissent was later adopted by the Warren Court, but I don’t see much evidence for that claim in the actual case law.
Quote
September 29, 2009, 12:23 pmMartinned says:
I guess it depends on your idea of “systemic flaw”, but I can think of a few more. For example, it turns out we can have perfect democracy and rule of law at the same time. We constantly have to juggle different (constitutional) rights, since those, too, we can’t all have at the same time. The Presidency of the United States seems to alternate between idiots we like and idiots we don’t. Virtually all taxes disrupt the perfection of perfectly free markets, which we can’t have anyway, and which we certainly can’t have unless at least someone pays taxes.
Just this morning I spent an hour listening to a very interesting lecture about the German Constitutional Court’s Lisbon Treaty ruling, which implies, amongst other things, that you can’t democratically abolish democracy. (Or at least Germany cannot, under art. 79(3) Basic Law.) At which point someone in the audience asked whether the Constitutional Court understood the irony of having the most undemocratic of German institutions, one that is well known for generously bossing the other branches of government around, complain that the EU is not democratic enough.
So no, I’m not optimistic. But that’s OK, I guess. Like our mortality, our fallibility is something we all have to come to grips with. It keeps us humble.
Quote
September 29, 2009, 12:24 pmfrankcross says:
I don’t understand how the nonexistence of wiretaps at the time of the Founding could defeat a 4th Amendment claim and yet allow a 9th Amendment claim to proceed.
Quote
September 29, 2009, 1:13 pmDavid Bernstein says:
Frank,
I don’t understand what you don’t understand. If the Fourth Amendment said, specifically, “The government may not stop and inspect a citizen’s horse and buggy without a warrant,” I would say that this right did not apply to a car. But I would think that the underlying right in question, to not have the government arbitrarily stop and search you and your conveyance while traveling, would still have been “retained by the people” under the Ninth Amendment and the Ninth should therefore be read to apply the same principle to cars that the Fourth applied to horses and buggies. The only counter would be if there was some reason to think the Fourth singled out horses and buggies in a way as to make the principle inapplicable to cars, AND that there was no other retained right not to have the government engage in arbitrary inspections of travelers.
Quote
September 29, 2009, 1:25 pmfrankcross says:
I understand the 9th is more expansive. But my thought is that the Founders never intended either amendment to apply to wiretaps, because they did not exist. So the question is should they so apply? This is the issue of how broadly to read language. I think the language of the 4th can easily be read broadly enough to encompass them, as could the language of buggy to include an auto. With the 9th, you have the question of how it is cabined. I think most try to limit it to common law rights recognized at the time, which would not include wiretaps, which would create the same issue as the 4th. Unless you regard the 9th as an unlimited grant of judicial authority.
But if your interpretive view were correct, I would think the Air Force is pretty clearly unconstitutional. While I think the Constitution’s authority for an army and a navy can be read to include an Air Force, your buggy example would clearly seem to preclude it, no?
Quote
September 29, 2009, 2:47 pmShertaugh says:
DB:
David –
1. What do you mean by “the liberal Warrent Court”? Is there another kind?
2. What do you mean by [the un-Safire-esque phrase] “to strictly enforce the Fourth Amendment”? Was the Warren Court wrong to apply the Fourth Amendment as written, which seems to be what your wording implies?
Presently, it seems to me the Fourth Amendment has so many exceptions that it’s unclear what exactly the 4th A stands for anymore . . . at least much beyond the rule that a search warrant listing and incorporating nothing is illegally general — that is, until we get five Justices who believe that as long as the officers executed the general warrant reasonably, the warrant violation become superfluous because, after all, the 4th A only prohibits “unreasonable” searches and seizures.
Quote
September 29, 2009, 4:05 pmShelbyC says:
But isn’t the whole point of the ninth that rights are not cabined? That it’s impossible to come up with an exaustive list of human rights?
Quote
September 29, 2009, 4:33 pmDavid Bernstein says:
Frank, in retrospect the horse and buggy wasn’t the best analogy, because it’s “horse and buggy” is closer to “car” than search and seizure of property is to wiretapping. But I’m unfortunately too busy right now to come up with a new one. The basic point is just because the Framers didn’t conceive of a potential scenario in which a right might be violated doesn’t mean that the right wasn’t “retained by the people.”
Quote
September 29, 2009, 5:57 pmfrankcross says:
I agree with that. But it doesn’t mean the right was retained by the people either. To get under the 9th Amendment, I presume you would have to define precisely what the right is and then establish that the Framers intended that right to be protected. Maybe that exists for wiretapping but I haven’t seen the evidence.
Of course if you’re not an originalist, like me, you’d be happy to find the right in the 9th Amendment, so I would agree with you. But the 9th Amendment is the shakiest grounds for nonoriginalists, because it is so expansive. In most cases, the text can confine nonoriginalism, but not here.
Quote
September 29, 2009, 6:29 pmDavid Bernstein says:
No, I don’t think so. I think the whole point of the Ninth Amendment is that it was impossible to enumerate, or even think of, every right that might be violated, so the Ninth Amendment simply renders the first eight non-exclusive.
Quote
September 29, 2009, 8:30 pmMartinned says:
That would turn the whole concept of the 9th amendment upside down. If they knew what exactly they were trying to protect, they could (and would) have made the Bill of Rights 11 amendments long. Or even 12. The point was to grandfather the body of common law rights into the Bill of Rights, meaning that these rights will continue to develop in a common law manner.
What that means is that the argument runs from the underlying principles articulated in earlier cases to new situations. From the (pre-1788) cases about searches and seizures to a principle of “my home is my castle” to a general right to privacy in certain circumstances to a warrant requirement for wire tapping. You can run that argument solely based on the 4th amendment, with a bit of creativity, or you can do what DB and I apparently agree is better (that has to be a first in the history of VC...) and find a more general right to privacy in the 9th amendment. Whether that right also applies to condoms, abortions and sex toys is a different matter. That has to be decided one case at a time. But I think it is pretty clear, both from the debates at the time of the writing of the constitution and from earlier case law, that the framers did not have much patience with government intrusion into the home. So there’s nothing un-originalist about arguing a warrant requirement for wire taps in the 9th.
(Personally, I’d argue the right to own a gun for self-defence through the 9th as well. But that’s a slightly different situation. I don’t think the framers didn’t think of the right to self-defence, I just think they considered it too obvious to be in need of explicit protection in one of the first 8 amendments, just like when you buy a car you don’t explicitly specify that it has to have wheels.)
Quote
September 30, 2009, 6:21 amJohn Thacker says:
The term for this sort of thing is the Whig View of History, and this is how legal liberals apply it. Society is inevitably progressing towards greater enlightenment, and every age has unambiguous “Good Guys” and “Bad Guys.”
The truth is inevitably more complex than that. For example, it’s difficult to separate the eugenics from early twentieth century Progressivism. You can’t salvage it by saying that the opponents were just as bad or worse, either; Catholic majority countries were much less likely to adopt eugenics because the Church was against it. (William Jennings Bryan’s actual testimony at the Scopes trial was interesting, too.)
Quote
September 30, 2009, 12:50 pm