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More Clues on the NSA Surveillance Program:
Over at Reason Online, Julian Sanchez draws out more details on the NSA domestic surveillance program from Russell Tice.
David M. Nieporent (www):
There still doesn't seem to be any there there with Tice. Every interview I read with him, he never seems to say anything. I recognize that anything he knows would be classified and nondisclosable, but if that's the case, then why is he chasing around reporters everywhere to see his name in print?
1.16.2006 2:11pm
Defending the Indefensible:
Russell Tice doesn't really have much new or interesting to say, it seems to me. Probably he's got a book in the works and needs as much publicity as he can get in order to make a living in the wake of losing his NSA job.

On a more interesting note, however, I haven't seen any discussion here of the Jason Leopold story that the NSA was doing warrantless wiretaps of Americans before 9/11, which clearly precedes any justification based on the AUMF.
1.16.2006 2:31pm
Just an Observer:
Tice very well may know secrets, as he claims. He hasn't told us any. I certainly do not assume he was a source for anything reported in the NYT stories or Risen's book. (That does not mean the reporters never talked to him.)
1.16.2006 2:32pm
Bruce Hayden (mail) (www):
Nothing really that new there. But he did get me thinking a bit. The basic problem the NSA faces is that of a mountain of straw that has to be winnowed into a very small box that can be reviewed by human eyes and/or ears. He was talking about the analysts working closely with the programmers. But that is much, much, too slow and labor intensive. I am thinking that they would more likely be spending resourses on AI and neural networks. Then, the feedback from the analysts could be utilized to train the software to better find what they are looking for.
1.16.2006 3:19pm
bud (mail):
I peg Tice as a bullshitter; evidently, given that he's had NYT reporters (even given that they are BDS sufferers) swallowing it, a pretty good one.

But he throws out a term (Bit Error Rate) in the interview - which has a quite specific meaning in data and telecom - where the context is not at all consistant.

IOW, he's tossing out buzzwords to impress, without really understanding them.

Marketing guys *always* get it wrong. :-)

email is humand readable - aloud
1.16.2006 3:22pm
ras (mail):
I skimmed over the interview. It was hard to read it in detail as he keeps saying nothing over &over.

The occasional reading between the lines implies a little man looking to do something big. For example, he says, "You need to have some huge computers to crunch that kind of stuff."

Anyone actually working with computers these days, esp with large volumes of data, knows full well that you use lots of small computers, lots and lots of them. It's no big deal, but if you were really working with such a system, you'd know this instinctively and your phraseology would indicate as much. Huge computers? That's the old Collossus/HAL bogeyman brought back outta the trunk in the attic.

None of which is definitive, but he keeps saying that such and such "could" be done, not that it is being done. If this is all he's ever gonna say, then perhaps he's best ignored lest he drown out legitimate information.

If he has more to say, for real, he should dial up the Senate Intelligence Committee and tell it to them. Otherwise, no more, please.
1.16.2006 3:49pm
Just an Observer:
DtI,

I read Jason Leopold's article, and the document to which he linked. I could not find a shred of support for his lead sentence:

The National Security Agency advised President Bush in early 2001 that it had been eavesdropping on Americans during the course of its work monitoring suspected terrorists and foreigners believed to have ties to terrorist groups, according to a declassified document.


Rather, the document does say that "American communication and targeted adversary communication will coexist" on the same global networks. It adds that "availability of critical foreign intelligence information will mean gaining access in new places and in new ways." And as one of several "major policy issues," the report says, "To perform both its offensive and defensive missions, NSA must 'live on the network.'"

Altogether, that is essentially a technical tautology coupled with an undisclosed policy proposal. No wonder it is declassified!

While this document is consistent with what Risen and the NYT have reported, it does not seem to break any new ground. I would be surprised if James Risen did not have an old copy of it in a file cabinet.

What is truthout.org? It does seem to be rather polemic. Leopold's "story" would have been spiked by editors at any reputable news organization.

I found the "declassified document" mildly interesting, but not especially newsworthy. Leopold does not really explain what it is or where it comes from. I surmise that it supposed to be an NSA briefing document for the 2001 Bush transition team.

When major controversies such as the NSA surveillance reported by the NYT become hot issues, Washington typically is awash is chaffe. This, I think, is an example.
1.16.2006 3:53pm
KMAJ (mail):
Truthout.org and Jason Leopold are both coming at this from a partisan political perspective. GaO's assessment is pretty much spot on, the story should not be dismissed out of hand, but a skeptic's eye is only reasonable. I do not think it is any secret that the NSA has engaged in data mining for longer than Bush has been in office, Able Danger attests to the fact that the technology existed for such operations and that they were authorized at high levels.
1.16.2006 4:10pm
ChrisAllan (mail):
Everything he "revealed" in the interview has been open source material for over 20 years.
1.16.2006 4:38pm
KMAJ (mail):
I came across this article in the Houston Chronicle by 5th Circuit Court of Appeals judge, Harold R. DeMoss, Jr. ( a Bush 1 nominee). He presents an interesting argument on the 'right to privacy' that is part of this NSA issue, as well as going to the heart of the Alito confirmation and Roe v. Wade. His call for a national referendum is interesting, who would determine the wording on such a national referendum ?

UNACCEPTABLE ARGUMENT
Figment of imagination
There is no constitutional right to privacy. Call a national referendum to settle the issue

By JUDGE HAROLD R. DEMOSS JR.

In this season of politicized and contentious confirmation hearings to fill vacancies on the U.S. Supreme Court, some of the sharpest debate and disagreement concerns a so-called "right of privacy" in the U.S. Constitution.

The advocates of a constitutional right of privacy speak as though that right were expressly stated and enumerated in the Constitution. But the text of the Constitution does not contain the word "privacy" or the phrase "right of privacy."

Consequently, in my view, a constitutional "right of privacy" could only be unenumerated and is therefore a figment of the imagination of a majority of the justices on the modern Supreme Court. Let me explain why.

Webster's Dictionary defines "enumerate" as "to name or count or specify one by one." Roget's Thesaurus states that the synonyms for "enumerate" are "to itemize, list, or tick off." Adding the negative prefix "un" reverses the definitions or synonyms so that "unenumerated" means not named, not counted, not specified, not itemized, or not listed.

The right of privacy is unenumerated because neither the word privacy nor the phrase right of privacy appears anywhere in the Constitution or its amendments. Nor does the text contain any words related to other rights the Supreme Court has found to derive from that right, including the right to an abortion and rights related to sexual preference. Neither "abortion" nor "sexual preference" appear anywhere in the text of the Constitution.

The idea of a constitutional "right of privacy" was not even recognized by the Supreme Court until 1965, when Justice William O. Douglas used the idea in writing for the majority in Griswold v. Connecticut, where the court concluded that a state law criminalizing the use of contraception was unconstitutional when applied to married couples because it violated a constitutional right of privacy. That was 176 years after ratification of the Constitution, 174 years after ratification of the Bill of Rights and 97 years after the ratification of the Fourteenth Amendment.

In his opinion, Justice Douglas cited cases that he maintained, "bear witness that the right of privacy which presses for recognition [in Griswold] is a legitimate one."

Note the phrase "which presses for recognition." That phrase reveals that the right of privacy, that is still hotly debated by the American people today, was first recognized by the Supreme Court in this opinion. Note, also, that if the right of privacy had been "named" or "listed" or "specified" or "itemized" in the Constitution, there would have been no need for it to "press for recognition" in this opinion.

What the Supreme Court was really doing with such language was interpreting some of the specific prohibitions enumerated in the Bill of Rights as indicating the existence of a general right of privacy that is not expressly written, and then finding a new specific right, i.e., the right to use contraceptives, as an unstated part of the unstated general right of privacy.

This same technique was used by the Supreme Court in 1973 in Roe v. Wade, in which the majority stated:

"The Constitution does not explicitly mention any right of privacy. In a line of decisions, however, going back perhaps as far as [1891], the court has recognized that a right of personal privacy, or a guarantee of certain areas or zones of privacy, does exist under the Constitution. In varying contexts, the court or individual justices have, indeed, found at least the roots of that right in the First Amendment, in the Fourth and Fifth Amendments, [and] in the penumbras of the Bill of Rights.

"This right of privacy, whether it be founded in the Fourteenth Amendment's concept of personal liberty and restrictions upon state action, as we feel it is, or as the district court determined, in the Ninth Amendment's reservation of rights to the people, is broad enough to encompass a woman's decision whether or not to terminate her pregnancy."

Just substitute "a woman's right to terminate her pregnancy" (Roe) for "a married couple's right to use contraceptives" (Griswold) and the Supreme Court again found an unstated specific right within the unstated general right of privacy. Note also that the Supreme Court admitted in the first sentence of the above quotation that "the Constitution does not explicitly mention any right of privacy." I think my use of the adjective "unenumerated" in this context is both accurate and appropriate.

The court's choice of the word "penumbra" and the phrase "penumbras of the

Bill of Rights" in these opinions is revealing.

According to Webster's, penumbra comes from two Latin roots: paene, meaning almost, and umbra, meaning shadow. The meaning of penumbra, as stated in the dictionary, that is relevant to our understanding of the Supreme Court's opinions regarding the Bill of Rights is "an outlying, surrounding region."

So the use of the word penumbra by the Supreme Court should be understood to mean that in the court's view the right of privacy exists somewhere in the region that surrounds and lies outside of the Bill of Rights.

But there is absolutely nothing in the text of the Bill of Rights about any such surrounding or outlying area, nor is there any catch-all phrase (like "other similar rights") indicating that the rights specifically enumerated exemplify a larger class of rights that were not enumerated. Consequently, whatever rights might be found in the phrase exist only in the mind, contemplation and imagination of each individual reader and are not part of the constitutional text.

Some proponents of a constitutional right of privacy insist that it can be found in the liberty clause of the Fourteenth Amendment. But the liberty clause of the Fourteenth Amendment is identical to the liberty clause in the Fifth Amendment; and just as in the case of the Bill of Rights, neither the word "privacy" nor the phrase "right of privacy" appear anywhere in the Fourteenth Amendment, much less in the liberty clause.

The fact that the Supreme Court has said that the right of privacy could come from the First, Fourth, Fifth or Fourteenth amendments is solid evidence that the court is just guessing about where it does come from.

The Supreme Court's actions I have just described amount to an attempt to amend the Constitution rather than an interpretation of its text. Let me explain why.

There are two ways to amend a document like the Constitution:

(1) you can delete words that already exist therein; or (2) you can add new words not previously included.

The latter is what the Supreme Court has done, and this action differs fundamentally from the court's legitimate task of interpreting and applying existing words and phrases like "cruel and unusual punishment," "due process," "public use" and "establishment of religion" that appear verbatim either in the text of the Constitution or its amendments.

But the Constitution does not give the Supreme Court the power to amend the Constitution. Neither the Supreme Court (the judicial branch) nor the president (the executive branch) is mentioned in Article V of the Constitution, which defines the process for amending the Constitution.

As defined in Article V, the power to amend lies with the American people, acting through the Congress and the state legislatures. It is "We, the people, of the United States" who are expressly denominated as the acting parties in our original Constitution who "do ordain and establish this Constitution for the United States of America."

Likewise, in our Declaration of Independence, one of the truths we declared to be self-evident is that "Governments are instituted among men, deriving their just powers from the consent of the governed."

Our first president, George Washington, put it this way in his farewell address to the nation in 1796:

"The basis of our political system is the right of the people to make and to alter their constitutions of government.

"If in the opinion of the people the distribution or modification of the constitutional powers be in any particular wrong, let it be corrected by amendment in the way which the Constitution designates but let there be no change by usurpation; for though this in one instance may be the instrument of good, it is the customary weapon by which free governments are destroyed."

Similarly Chief Justice John Marshall wrote as follows in his historic opinion in Marbury v. Madison:

"That the people have an original right to establish, for their future government, such principles as, in their opinion, shall most conduce to their own happiness, is the basis on which the whole American fabric has been erected.

"From these, and many other selections which might be made, it is apparent, that the framers of the Constitution contemplated that instrument, as a rule for the government of courts, as well as of the legislature."

The Constitution does speak to the circumstance of unenumerated rights in the Ninth and Tenth amendments. The Ninth Amendment in simple plain English says, "The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people."

The right of privacy is not one of the rights enumerated in the Constitution, and consequently, the Ninth Amendment gives us two instructions: first, we are not "to deny or disparage" the existence of a right of privacy simply because it is not enumerated in the Constitution; and second, we are required to recognize that any such right of privacy is "retained by the people."

Clearly, a right of privacy exists at some level, but it has not been made subject to the Constitution unless and until the people act to make it so.

Likewise, the Tenth Amendment simply states, "The powers not delegated to the United States by the Constitution, nor prohibited by it to the states, are reserved to the states respectively, or to the people."

The Constitution does not delegate to the Supreme Court (or any other branch of the U.S. government) any power to define, apply, or enforce whatever may be the right of privacy retained by the people. Similarly, the U.S. Constitution does not prohibit any state in particular, nor all states in general, from defining, applying or enforcing whatever the people of that state may choose as the right of privacy. Therefore, as the Tenth Amendment clearly provides, the power to define, apply or enforce a right of privacy is "reserved to the states respectively, or to the people."

By finding a constitutional right of privacy that is not expressly enumerated in the Constitution, the Supreme Court has "usurped" the roles and powers of the people, the Congress, and the state legislatures.

Shed of all semantical posturing, the critical issue becomes: Does the U.S. Constitution permit amendments by judicial fiat?

Some argue that the Constitution must be a "living, breathing instrument" and that it is right and proper for a majority of the Supreme Court to decide when, where and how the Constitution needs to be changed so as to be "relevant to modern times."

These folks operate on the premise that the Supreme Court is infallible and omnipotent, and that once the Supreme Court has spoken, there is no way to change its ruling.

I disagree with that view. But we as a society must decide which view should prevail.

On several occasions the Supreme Court has held that Congress does not have the power to change by legislation a prior Supreme Court decision. Similarly, nothing in the Constitution instills the president with the power to do so. Therefore, to remedy the "usurpation" by the Supreme Court as to a "right of privacy," we must go to the highest authority — the people.

Thus, the ultimate remedy to this controversy lies not with the individual members of the Supreme Court, but with the people whose will could be expressed in the form of a national referendum either affirming or rejecting the Supreme Court's actions.

Such a national referendum would be a win-win situation. For those who support the power of five justices to amend the Constitution as they see fit, it would afford the opportunity to demonstrate that a majority of the people in each of a majority of the states agree with the Supreme Court and that therefore, the right of privacy should be treated as a part of the Constitution, just as if it had been adopted by the amendment process in Article V.

On the other hand, for those of us who believe the Supreme Court has usurped the power of the people to consent or not to consent to a constitutional change, a national referendum would afford the opportunity to demonstrate that a majority of the people in each of a majority of the states reject the power of the Supreme Court to make constitutional changes.

The will of the people would then override any judicially fabricated constitutional amendment, and the right of privacy would not be treated as part of the Constitution.

This referendum could be called by Congress and placed on the November 2006 ballot for Congressional elections.

This controversy has been brewing for more than 30 years with little sign of resolution. The best thing would be to settle this controversy one way or another as quickly as possible by a vote of all of the people.

As a U.S. citizen, I respectfully petition the Congress to call a national referendum to permit the people to just say no or yes to the Supreme Court's usurpation of the power to amend the Constitution. I invite others who share my views to do likewise.
---
DeMoss practiced law in Houston for 34 years before being appointed in 1991 by former President George H.W. Bush to the 5th U.S. Circuit Court of Appeals, where he now serves.
1.16.2006 4:43pm
Just an Observer:
KMAJ,

I don't think anyone has proposed that the privacy ight defined by the 1965 Griswold v Connecticut case, about which Judge DeMoss was writing, has much to do with the NSA surveillance controversy.

To the extent that individual rights are at issue, the Fourth Amendment seems more relevant directly. (Note that not all legal issues involve that amendment. There also are statutory issues of FISA, criminal law and the AUMF, and possibly constitutional issues of separation-of-powers.)

As you correctly point out, the privacy right defined in Griswold has much to do with Roe v. Wade. But then, that is another matter for another thread.
1.16.2006 5:02pm
KMAJ (mail):
JaO,

I agree that DeMoss' article is directed more towards Griswold, and therefore Roe, but the right to privacy is a fundamental part of the argument underlying NSA surveillance and the statutory issues of FISA, criminal law and what powers the AUMF does or does not confer on the executive branch. It was toward that end that I was trying, maybe not adequately, to direct discussion. What effect, if any, would such a national referendum, depending upon the wording, have upon the NSA issue ? Would it be retroactive ? Wouldn't such a referendum, depending on the results, have significant impact on future rulings across a broad spectrum of the Supreme Court and Appeals Courts?
1.16.2006 5:18pm
Noah Klein (mail):
JAO:

I think that you have misread the document. Certainly, it does not as Leopold says demonstrate that the NSA was spying before 9/11, yet it does imply it. Here is a site for the Declassified document. It refers to the need to surveil "U.S. information infrastructure" and the "global net" upon which this infrastructure is based. The NSA document insists that they will respect the Fourth Amendment, but they are currently insisting that the NSA program in question respects the Fourth Amendment. So, it is difficult to make the broad claim that Leopold makes, but it is also important to see the possible problems that could result from this document. Finally, Leopold's claim that Bush authorized the spying before 9/11 is ridiculous. This was document given to the White House not the other way around.

I would also like to congratulate GW on its National Security Archive that holds this document. GO COLONIALS!

KMAJ:

The NSA spying only affects the 'right to privacy' as far as that right is related to the Fourth Amendment. When the Supreme Court said that electronic surveilance required a court order, they did so using the rights under the Fourth Amendment and not the 'right to privacy,' which wasn't recognized in this case but later. I don't think that the 'right to privacy' has anything to do with this case, but I would debate the judge's article in another thread about the 'right to privacy.'

Noah
1.16.2006 5:36pm
Just an Observer:
KMAJ,

The Fourth Amendment in no way depends on the right of privacy defined in Griswold, although the "penumbra" of the latter may depend in part on the Fourth Amendment.

Griswold's 'right to privacy" thus is in no way "a fundamental part of the argument underlying NSA surveillance and the statutory issues of FISA, criminal law and what powers the AUMF does or does not confer on the executive branch," as you suggest.

No suggestion for a referendum -- whether serious or tongue-in-cheek -- need be made for the Fourth Amendment. That matter was quite settled when the Bill of Rights was ratified.
1.16.2006 5:39pm
Just an Observer:
Noah,

I can read into the document that the NSA wanted policies that would enable tapping global communications, and proposed doing so in novel ways. I cannot read into it an implication that surveillance for which FISA warrants was required was actually being performed illegally before 9/11.
1.16.2006 5:51pm
David M. Nieporent (www):
What is truthout.org? It does seem to be rather polemic. Leopold's "story" would have been spiked by editors at any reputable news organization.
Truthout is primarily a leftwing news aggregator site; they occasionally print some original columns, I think.

Jason Leopold is best known as the 'journalist' who was slammed when he tried, back in 2002, to push some story involving Thomas White (Secretary of the Army) and Enron using possibly-fabricated emails. Krugman picked up on it, since Bush-Enron was his bete noire, and wanted to run with it, and was forced to back down. (Leopold's version of this incident is here.) He also plagiarized a significant part of the story -- he claims inadvertently -- and had some other problems, as quickly summarized here.
1.16.2006 5:53pm
KMAJ (mail):
JaO,

Wouldn't the right to privacy be a major issue in the surveillance aspect to gain foreign intelligence ? I have seen many arguments in other strings about an 'expected right to privacy' regarding this issue. I was not addressing it towards a Fourth Amendment referendum. It would have to apply to FISA standards for issuing warrants if such a referendum lowered the standard of privacy rights and would impact interpretation of what scope of power was being perceived as authorized, due to a lowered standard on privacy, by the AUMF. I concede the Fourth Amendment and criminal law aspects would not be as severely impacted, unless the crime is terrorism related. This is already a very murky area because of the overlap of intelligence and criminal aspects of prevention and detection of terrorist activities, with criminal detention playing a major role in prevention.
1.16.2006 6:05pm
Just an Observer:
What I and others have been trying to explain to you is that the "right to privacy" DeMoss was writing about pertained to the right of married couples to use birth control, which was established by the 1965 Griswold case. His point is that he believes the reasoning of that case was flawed because there is no general "right to privacy," in so many words, anywhere in the Constitution.

DeMoss was not questioning the explicit rights defined in the Fourth Amendment, dealing with search and seizure. No one argues that FISA is based on the "right to privacy" DeMoss does question.
1.16.2006 6:20pm
Just an Observer:
KMAJ,

I would add that the concept of an "expectation of privacy" in the context of surveillance had its origin in a different case -- Katz v. United States. That case was based directly on the Fourth Amendment, and held that electronic surveillance was covered by that amendment.

The term "expectation of privacy" thus has a specific meaning as a legal term of art related to surveillance, and was incorporated into the FISA statute. This use of the the word "privacy" is not at all dependent on the word as used in Griswold, which pertained to birth control.
1.16.2006 6:48pm
Bruce Hayden (mail) (www):
For many of you opposed to the NSA evesdropping, I will suggest that strategically, you don't want Griswold involved. Why? Because it is arguably the weak reed upon which Roe v. Wade is based, and this might be an oblique way to chip away at it through the Adminstration's arguments with Article II powers and the AUMF. And an oblique, indirect, attack may be much more attractive than a direct attack, esp. for our newest Justices (assuming, of course, that Judge Alito is by then on the Court).
1.16.2006 6:53pm
Just an Observer:
Bruce Hayden,

In the beginning of the conversation with KMAJ, I was simply educating him about two concepts about which he apparently was confused.

Now, I see a more deliberate effort to distort a controversy over Griswold's use of "privacy" into a convoluted strawman argument. You seem to imply that if one questions Griswold's protection of condoms, one must accept warrantless surveillance of U.S. citizens. RFLMAO.
1.16.2006 7:12pm
Noah Klein (mail):
JAO:

You're right, I think I read too much into it.

Noah
1.16.2006 10:04pm
Just an Observer:
Former Vice President Gore, in his speech at Constitution Hall today, called for a special counsel to investigate the NSA surveillance controversy.

The ACLU proposed such a special counsel several weeks ago. Marty Lederman, addressing that proposal, said that while he sympathized with the goal, a special-counsel probe did not seem legally viable.

As I understand Lederman's analysis, he believes the counsel would be bound to follow the legal opinion of Attorney General Gonzales, who already has found the NSA surveillance program to be perfectly okay as a matter of law:

In order for the Attorney General to appoint a special counsel, the AG must "determine[] that criminal investigation of a person or matter is warranted." 28 C.F.R. 600.1. The AG can't possibly make such a determination here because the AG, and the President, and OLC, have already determined that the conduct in question was lawful. Indeed, without DOJ's sign-off (of "form and legality," required for all Executive Orders), the President would not have issued the orders authorizing NSA to engage in the wiretapping in the first instance.


Apart from the politics of this proposal, could it be made to work legally without additional enabling legislation? Could a counsel be appointed and be free to seek a ruling on the law from a court?
1.16.2006 11:32pm
Mary Katherine Day-Petrano (mail):
My thoughts ... people are really missing the BIG issue, that there is a huge false positive error rate, and this is compounded by the use of the voice-recognition technology notwithstanding efforts to use linguists to help out. How would anyone out there like to be the victim of a false positive; I can assure it is much worse than being the victim of identity theft.

A several volume lenghty voluminous prolix discourse on Roe v. Wade and right to privacy (Uggghhh). Thank God I was born before that case became law, or I might not have been.

Really, it is much simpler to recognize the Americans With Disabilities Act "incorporation" clause, 42 USC 12101(b)(4), by using the word "including" to signify an illustrative list (not exhaustive) allows the ADA to "incorporate" and serve as pre-existing legislation for domestic enforcement of certain treaties. This includes the Convention Against Genocide. By this logic, Roe v. Wade was effectve overruled by Congress's pre-existing ADA legislation, and the Senate and President's ratification of the Ceonvention Against Genocide in 1998, when the treaty prohibitions became "incorporated" in and enforceable through the ADA, thereby eliminating the wanton genocide of fetuses. No big deal, and a lot cleaner than all that right to privacy penumbra stuff. With the right writing style, say Justice Scalia's perfect ability to write about treaties, international law, and statutory construction, this could all be taken care of in one brush of the pen.

However, if one is going to ban abortions in all but extremely necessary cases, then by the same logic, the ADA must be fully enforceable to ensure all those fetuses (especially the disabled ones) who get born are enabled to achieve enough quality of life and ability to work (by requiring accommodations) to avoid the burden on the government of warehousing all these future people vs. enabling them to work and pay their way.

The best place to start in my opinion is to eliminate all the red tape in bar admissions so law school grads walk out of law school with their professional license.
1.17.2006 12:08am
Neal Lang (mail):
When the Supreme Court said that electronic surveilance required a court order, they did so using the rights under the Fourth Amendment and not the 'right to privacy,' which wasn't recognized in this case but later.

Let's see:
Article the sixth [Amendment IV]

The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.

Was amended by the Supremes using one of the Article III penumbra of secret "powers" of the Court to amend the Constitution without adhering to the inconvenient and cumbersome requirements of Article V, to wit:
Article. V.

The Congress, whenever two thirds of both Houses shall deem it necessary, shall propose Amendments to this Constitution, or, on the Application of the Legislatures of two thirds of the several States, shall call a Convention for proposing Amendments, which, in either Case, shall be valid to all Intents and Purposes, as Part of this Constitution, when ratified by the Legislatures of three fourths of the several States, or by Conventions in three fourths thereof, as the one or the other Mode of Ratification may be proposed by the Congress; Provided that no Amendment which may be made prior to the Year One thousand eight hundred and eight shall in any Manner affect the first and fourth Clauses in the Ninth Section of the first Article; and that no State, without its Consent, shall be deprived of its equal Suffrage in the Senate.

The Fourth Amendment now reads:
Article the sixth [Amendment IV]

The right of the people including "foreign agents" of a hostile enemy to be secure in their persons, houses, papers, electronic communications and effects, against unreasonable or reasonable surveilance, searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be suveiled or searched, and the persons or things to be seized.

Thus, a Presidential Executive Order specifically targeting "foreign agents" of an enemy with "electronic surveilance" of their conversations transmitted by radio signals, against whom the Congress has declared war, for the specific purpose of gathering "tactical military intelligence" in order to prevent treason and terrorist attacks against our country are "unconstitutional" (and a "high Crimes and Misdemeanors"), while a Presidential Executive Order specifically targeting "US Residents" with "warrantless searches and seizures of their houses, papers, and effects" is perfectly fine. Go figure!
1.17.2006 11:04am
Neal Lang (mail):
No suggestion for a referendum -- whether serious or tongue-in-cheek -- need be made for the Fourth Amendment. That matter was quite settled when the Bill of Rights was ratified.

Except that "surveillance" of any kind, and verbal "conversations" were "conspicuous by their absence" in said Article when the 4th Amendment was ratified. Those additions to the BoR were added under the penumbra of "powers" delegated the Courts in Article III.

Query: If the President's actions, as Commander-in-Chief, to uphold his sacred oath to "preserve, protect and defend the Constitution of the United States" are "impeachable crimes", why aren't the actions of the Supremes "unilaterally amending the Constitution while ignoring the provisions of Article V also subject to impeachment?
1.17.2006 11:25am
Neal Lang (mail):
What I and others have been trying to explain to you is that the "right to privacy" DeMoss was writing about pertained to the right of married couples to use birth control, which was established by the 1965 Griswold case. His point is that he believes the reasoning of that case was flawed because there is no general "right to privacy," in so many words, anywhere in the Constitution.

DeMoss was not questioning the explicit rights defined in the Fourth Amendment, dealing with search and seizure. No one argues that FISA is based on the "right to privacy" DeMoss does question.

Actually, Justice Powell's decision in Griswold is specifically tied, in part to the "general right of privacy" supposedly found in the Fourth Amendment:
The foregoing 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. See Poe v. Ullman, 367 U.S. 497, 516 -522 (dissenting opinion). Various guarantees create zones of privacy. The right of association contained in the penumbra of the First Amendment is one, as we have seen. The Third Amendment in its prohibition against the quartering of soldiers "in any house" in time of peace without the consent of the owner is another facet of that privacy. The Fourth Amendment explicitly affirms the "right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures." The Fifth Amendment in its Self-Incrimination Clause enables the citizen to create a zone of privacy which government may not force him to surrender to his detriment. The Ninth Amendment provides: "The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people."

The Fourth and Fifth Amendments were described in Boyd v. United States, 116 U.S. 616, 630 , as protection against all governmental invasions "of the sanctity of a man's home and the privacies of life." * We recently referred [381 U.S. 479, 485] in Mapp v. Ohio, 367 U.S. 643, 656 , to the Fourth Amendment as creating a "right to privacy, no less important than any other right carefully and particularly reserved to the people." See Beaney, The Constitutional Right to Privacy, 1962 Sup. Ct. Rev. 212; Griswold, The Right to be Let Alone, 55 Nw. U. L. Rev. 216 (1960). From: GRISWOLD v. CONNECTICUT, 381 U.S. 479 (1965)

What is it about this mythical general "right of privacy", that makes it so sacred to the Court when other specifically stated rights, such as "the people's right to keep and bear arms" free from infringement, can be ignored with impunity?
1.17.2006 11:50am
Just an Observer:
Neal Lang: "Actually, Justice Powell's decision in Griswold is specifically tied, in part to the 'general right of privacy' supposedly found in the Fourth Amendment"

Yes, the finding in Griswold was based in part on the Fourth Amendment. But the Fourth Amendment is not based on Griswold. It speaks for itself.

The Amendment's search-and-seizure provisions are hard-wired into the Constitution. Surveillance is covered directly by the Fourth Amendment, as recognized in Katz v United States, which does not depend on Griswold.

The point is that, however much one quibbles with Griswold, it is simply not relevant to the NSA surveillance matter.
1.17.2006 12:10pm
ditty:
I don't know, the phraseology in the article seems a little hinky to me.

However, I will point out a couple of interesting things. First, he talks about one interesting part. Note how he talks about:

That would lead one to ask the question: "Why did they omit the FISA court?"

I would think one reason that is possible is that perhaps a system already existed that you could do this with, and all you had to do is change the venue.


and then farther down he talks about being the liaison.

Changing the venue?

As far as I know, it isn't a violation of the Fourth Amendment for other countries to monitor the communications of Americans (or "United States Persons", if you will), just as it is not illegal for the United States to monitor the communications of foreigners outside the US, FISA or no FISA.

UKUSA, anyone?
1.17.2006 12:52pm
Neal Lang (mail):
I would add that the concept of an "expectation of privacy" in the context of surveillance had its origin in a different case -- Katz v. United States. That case was based directly on the Fourth Amendment, and held that electronic surveillance was covered by that amendment.

The Katz decsion was based on an "expectation of privacy" to have one's "conversations" in a "public telephone" to be free from governmental "surveillance" that is, according to Justice Stewart found somewhere in the Fourth Amendment. Interestingly, the Fourth Amendment mentions only "the people's houses", and not public places, such as "public telephone booths". It also mentions "unreasonable searches and seizures" and not "probable suspicion" police "surveillance". Finally, this amendment references specifically only "persons, houses, papers, and effects" and not "conversations". Obviously, the "right" of an "expectation of privacy" enjoyed by Mr. Katz when he "converses about illegal activity" in a "public telephone booth" must tbe part of the same "penumbra" of general "rights of privacy" uncovered by Justice Douglas in Griswold.

BTW, Griswold predates Katz. What's truly amazing is that Justice Stewart disagreed with Justice Douglas' opinion in Griswold, to wit:
My Brother STEWART, while characterizing the Connecticut birth control law as "an uncommonly silly law," post, at 527, would nevertheless let it stand on the ground that it is not for the courts to "`substitute their social and economic beliefs for the judgment of legislative bodies, who are elected to pass laws.'"

Footnote 1 ] My Brother STEWART dissents on the ground that he "can find no . . . general right of privacy in the Bill of Rights, in any other part of the Constitution, or in any case ever before decided by this Court." Post, at 530. He would require a more explicit guarantee than the one which the Court derives from several constitutional amendments. This Court, however, has never held that the Bill of Rights or the [381 U.S. 479, 487] Fourteenth Amendment protects only those rights that the Constitution specifically mentions by name. See, e. g., Bolling v. Sharpe, 347 U.S. 497 ; Aptheker v. Secretary of State, 378 U.S. 500 ; Kent v. Dulles, 357 U.S. 116 ; Carrington v. Rash, 380 U.S. 89, 96 ; Schware v. Board of Bar Examiners, 353 U.S. 232 ; NAACP v. Alabama, 360 U.S. 240 ; Pierce v. Society of Sisters, 268 U.S. 510 ; Meyer v. Nebraska, 262 U.S. 390 . To the contrary, this Court, for example, in Bolling v. Sharpe, supra, while recognizing that the Fifth Amendment does not contain the "explicit safeguard" of an equal protection clause, id., at 499, nevertheless derived an equal protection principle from that Amendment's Due Process Clause. And in Schware v. Board of Bar Examiners, supra, the Court held that the Fourteenth Amendment protects from arbitrary state action the right to pursue an occupation, such as the practice of law. From: Douglas' opinion for the Court in Griswold.

Also:
The Court talks about a constitutional "right of privacy" as though there is some constitutional provision or provisions forbidding any law ever to be passed which might abridge the "privacy" of individuals. But there is not. There are, of course, guarantees in certain specific constitutional provisions which are designed in part to protect privacy at certain times and places with respect to certain activities. Such, for example, is the Fourth [381 U.S. 479, 509] Amendment's guarantee against "unreasonable searches and seizures." But I think it belittles that Amendment to talk about it as though it protects nothing but "privacy." To treat it that way is to give it a niggardly interpretation, not the kind of liberal reading I think any Bill of Rights provision should be given. The average man would very likely not have his feelings soothed any more by having his property seized openly than by having it seized privately and by stealth. He simply wants his property left alone. And a person can be just as much, if not more, irritated, annoyed and injured by an unceremonious public arrest by a policeman as he is by a seizure in the privacy of his office or home.

One of the most effective ways of diluting or expanding a constitutionally guaranteed right is to substitute for the crucial word or words of a constitutional guarantee another word or words, more or less flexible and more or less restricted in meaning. This fact is well illustrated by the use of the term "right of privacy" as a comprehensive substitute for the Fourth Amendment's guarantee against "unreasonable searches and seizures." "Privacy" is a broad, abstract and ambiguous concept which can easily be shrunken in meaning but which can also, on the other hand, easily be interpreted as a constitutional ban against many things other than searches and seizures. I have expressed the view many times that First Amendment freedoms, for example, have suffered from a failure of the courts to stick to the simple language of the First Amendment in construing it, instead of invoking multitudes of words substituted for those the Framers used. See e. g., New York Times Co. v. Sullivan, 376 U.S. 254, 293 (concurring opinion); cases collected in City of El Paso v. Simmons, 379 U.S. 497, 517 , n. 1 (dissenting opinion); Black, The Bill of Rights, 35 N. Y. U. L. Rev. 865. For these reasons I get nowhere in this case by talk about a constitutional "right of privacy" as an emanation from [381 U.S. 479, 510] one or more constitutional provisions. 1 I like my privacy as well as the next one, but I am nevertheless compelled to admit that government has a right to invade it unless prohibited by some specific constitutional provision. For these reasons I cannot agree with the Court's judgment and the reasons it gives for holding this Connecticut law unconstitutional.

I repeat so as not to be misunderstood that this Court does have power, which it should exercise, to hold laws unconstitutional where they are forbidden by the Federal Constitution. My point is that there is no provision [381 U.S. 479, 521] of the Constitution which either expressly or impliedly vests power in this Court to sit as a supervisory agency over acts of duly constituted legislative bodies and set aside their laws because of the Court's belief that the legislative policies adopted are unreasonable, unwise, arbitrary, capricious or irrational. The adoption of such a loose, flexible, uncontrolled standard for holding laws unconstitutional, if ever it is finally achieved, will amount to a great unconstitutional shift of power to the courts which I believe and am constrained to say will be bad for the courts and worse for the country. Subjecting federal and state laws to such an unrestrained and unrestrainable judicial control as to the wisdom of legislative enactments would, I fear, jeopardize the separation of governmental powers that the Framers set up and at the same time threaten to take away much of the power of States to govern themselves which the Constitution plainly intended them to have. 16 [381 U.S. 479, 522]

I realize that many good and able men have eloquently spoken and written, sometimes in rhapsodical strains, about the duty of this Court to keep the Constitution in tune with the times. The idea is that the Constitution must be changed from time to time and that this Court is charged with a duty to make those changes. For myself, I must with all deference reject that philosophy. The Constitution makers knew the need for change and provided for it. Amendments suggested by the people's elected representatives can be submitted to the people or their selected agents for ratification. That method of change was good for our Fathers, and being somewhat old-fashioned I must add it is good enough for me. And so, I cannot rely on the Due Process Clause or the Ninth Amendment or any mysterious and uncertain natural law concept as a reason for striking down this state law. The Due Process Clause with an "arbitrary and capricious" or "shocking to the conscience" formula was liberally used by this Court to strike down economic legislation in the early decades of this century, threatening, many people thought, the tranquility and stability of the Nation. See, e. g., Lochner v. New York, 198 U.S. 45 . That formula, based on subjective considerations of "natural justice," is no less dangerous when used to enforce this Court's views about personal rights than those about economic rights. I had thought that we had laid that formula, as a means for striking down state legislation, to rest once and for all in cases like West Coast Hotel Co. v. Parrish, 300 U.S. 379 ; Olsen v. Nebraska ex rel. Western Reference &Bond Assn., 313 U.S. 236 , and many other [381 U.S. 479, 523] opinions. 17 See also Lochner v. New York, 198 U.S. 45, 74 (Holmes, J., dissenting).

The late Judge Learned Hand, after emphasizing his view that judges should not use the due process formula suggested in the concurring opinions today or any other formula like it to invalidate legislation offensive to their "personal preferences," 22 made the statement, with which I fully agree, that:

"For myself it would be most irksome to be ruled by a bevy of Platonic Guardians, even if I [381 U.S. 479, 527] knew how to choose them, which I assuredly do not." 23

So far as I am concerned, Connecticut's law as applied here is not forbidden by any provision of the Federal Constitution as that Constitution was written, and I would therefore affirm.

[ Footnote 1 ] The phrase "right to privacy" appears first to have gained currency from an article written by Messrs. Warren and (later Mr. Justice) Brandeis in 1890 which urged that States should give some form of tort relief to persons whose private affairs were exploited by others. The Right to Privacy, 4 Harv. L. Rev. 193. Largely as a result of this article, some States have passed statutes creating such a cause of action, and in others state courts have done the same thing by exercising their powers as courts of common law. See generally 41 Am. Jur. 926-927. Thus the Supreme Court of Georgia, in granting a cause of action for damages to a man whose picture had been used in a newspaper advertisement without his consent, said that "A right of privacy in matters purely private is . . . derived from natural law" and that "The conclusion reached by us seems to be . . . thoroughly in accord with natural justice, with the principles of the law of every civilized nation, and especially with the elastic principles of the common law. . . ." Pavesich v. New England Life Ins. Co., 122 Ga. 190, 194, 218, 50 S. E. 68, 70, 80. Observing that "the right of privacy . . . presses for recognition here," today this Court, which I did not understand to have power to sit as a court of common law, now appears to be exalting a phrase which Warren and Brandeis used in discussing grounds for tort relief, to the level of a constitutional rule which prevents state legislatures from passing any law deemed by this Court to interfere with "privacy." From: Justice Black's dissenting opinion.

Finally:
Since 1879 Connecticut has had on its books a law which forbids the use of contraceptives by anyone. I think this is an uncommonly silly law. As a practical matter, the law is obviously unenforceable, except in the oblique context of the present case. As a philosophical matter, I believe the use of contraceptives in the relationship of marriage should be left to personal and private choice, based upon each individual's moral, ethical, and religious beliefs. As a matter of social policy, I think professional counsel about methods of birth control should be available to all, so that each individual's choice can be meaningfully made. But we are not asked in this case to say whether we think this law is unwise, or even asinine. We are asked to hold that it violates the United States Constitution. And that I cannot do.

In the course of its opinion the Court refers to no less than six Amendments to the Constitution: the First, the Third, the Fourth, the Fifth, the Ninth, and the Fourteenth. [381 U.S. 479, 528] But the Court does not say which of these Amendments, if any, it thinks is infringed by this Connecticut law.

We are told that the Due Process Clause of the Fourteenth Amendment is not, as such, the "guide" in this case. With that much I agree. There is no claim that this law, duly enacted by the Connecticut Legislature is unconstitutionally vague. There is no claim that the appellants were denied any of the elements of procedural due process at their trial, so as to make their convictions constitutionally invalid. And, as the Court says, the day has long passed since the Due Process Clause was regarded as a proper instrument for determining "the wisdom, need, and propriety" of state laws. Compare Lochner v. New York, 198 U.S. 45 , with Ferguson v. Skrupa, 372 U.S. 726 . My Brothers HARLAN and WHITE to the contrary, "[w]e have returned to the original constitutional proposition that courts do not substitute their social and economic beliefs for the judgment of legislative bodies, who are elected to pass laws." Ferguson v. Skrupa, supra, at 730.

As to the First, Third, Fourth, and Fifth Amendments, I can find nothing in any of them to invalidate this Connecticut law, even assuming that all those Amendments are fully applicable against the States. 1 It has [381 U.S. 479, 529] not even been argued that this is a law "respecting an establishment of religion, or prohibiting the free exercise thereof." 2 And surely, unless the solemn process of constitutional adjudication is to descend to the level of a play on words, there is not involved here any abridgment of "the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the Government for a redress of grievances." 3 No soldier has been quartered in any house. 4 There has been no search, and no seizure. 5 Nobody has been compelled to be a witness against himself. 6

The Court also quotes the Ninth Amendment, and my Brother GOLDBERG'S concurring opinion relies heavily upon it. But to say that the Ninth Amendment has anything to do with this case is to turn somersaults with history. The Ninth Amendment, like its companion the Tenth, which this Court held "states but a truism that all is retained which has not been surrendered," United States v. Darby, 312 U.S. 100, 124 , was framed by James Madison and adopted by the States simply to make clear that the adoption of the Bill of Rights did not alter the plan that [381 U.S. 479, 530] the Federal Government was to be a government of express and limited powers, and that all rights and powers not delegated to it were retained by the people and the individual States. Until today no member of this Court has ever suggested that the Ninth Amendment meant anything else, and the idea that a federal court could ever use the Ninth Amendment to annual a law passed by the elected representatives of the people of the State of Connecticut would have caused James Madison no little wonder.

What provision of the Constitution, then, does make this state law invalid? The Court says it is the right of privacy "created by several fundamental constitutional guarantees." With all deference, I can find no such general right of privacy in the Bill of Rights, in any other part of the Constitution, or in any case ever before decided by this Court. 7

At the oral argument in this case we were told that the Connecticut law does not "conform to current community standards." But it is not the function of this Court to decide cases on the basis of community standards. We are here to decide cases "agreeably to the Constitution and laws of the United States." It is the essence of judicial [381 U.S. 479, 531] duty to subordinate our own personal views, our own ideas of what legislation is wise and what is not. If, as I should surely hope, the law before us does not reflect the standards of the people of Connecticut, the people of Connecticut can freely exercise their true Ninth and Tenth Amendment rights to persuade their elected representatives to repeal it. That is the constitutional way to take this law off the books. 8

The Court does not say how far the new constitutional right of privacy announced today extends. See, e. g., Mueller, Legal Regulation of Sexual Conduct, at 127; Ploscowe, Sex and the Law, at 189. I suppose, however, that even after today a State can constitutionally still punish at least some offenses which are not committed in public.

[ Footnote 8 ] See Reynolds v. Sims, 377 U.S. 533, 562 . The Connecticut House of Representatives recently passed a bill (House Bill No. 2462) repealing the birth control law. The State Senate has apparently not yet acted on the measure, and today is relieved of that responsibility by the Court. New Haven Journal-Courier, Wed., May 19, 1965, p. 1, col. 4, and p. 13, col. 7. [381 U.S. 479, 532] From: Justice Stewart's dissenting opinion

What makes Justice Stewart's dissent in Griswold so amazing is that he concurred with Justice Blacknum's majority opinion, while, however, taking exception to the idea of a "general right of privacy" to be found in the 4th Amendment, to wit:
MR. JUSTICE STEWART, concurring.

In 1963, this Court, in Ferguson v. Skrupa, 372 U.S. 726 , purported to sound the death knell for the doctrine of substantive due process, a doctrine under which many state laws had in the past been held to violate the Fourteenth Amendment. As Mr. Justice Black's opinion for the Court in Skrupa put it: "We have returned to the original constitutional proposition that courts do not substitute their social and economic beliefs for the judgment of legislative bodies, who are elected to pass laws." Id., at 730. 1

Barely two years later, in Griswold v. Connecticut, 381 U.S. 479 , the Court held a Connecticut birth control law unconstitutional. In view of what had been so recently said in Skrupa, the Court's opinion in Griswold understandably did its best to avoid reliance on the Due Process Clause of the Fourteenth Amendment as the ground for decision. Yet, the Connecticut law did not violate any provision of the Bill of Rights, nor any other specific provision of the Constitution. 2 So it was clear [410 U.S. 113, 168] to me then, and it is equally clear to me now, that the Griswold decision can be rationally understood only as a holding that the Connecticut statute substantively invaded the "liberty" that is protected by the Due Process Clause of the Fourteenth Amendment. 3 As so understood, Griswold stands as one in a long line of pre-Skrupa cases decided under the doctrine of substantive due process, and I now accept it as such.


"In a Constitution for a free people, there can be no doubt that the meaning of `liberty' must be broad indeed." Board of Regents v. Roth, 408 U.S. 564, 572 . The Constitution nowhere mentions a specific right of personal choice in matters of marriage and family life, but the "liberty" protected by the Due Process Clause of the Fourteenth Amendment covers more than those freedoms explicitly named in the Bill of Rights. See Schware v. Board of Bar Examiners, 353 U.S. 232, 238 -239; Pierce v. Society of Sisters, 268 U.S. 510, 534 -535; Meyer v. Nebraska, 262 U.S. 390, 399 -400. Cf. Shapiro v. Thompson, 394 U.S. 618, 629 -630; United States v. Guest, 383 U.S. 745, 757 -758; Carrington v. Rash, 380 U.S. 89, 96 ; Aptheker v. Secretary of State, 378 U.S. 500, 505 ; Kent v. Dulles, 357 U.S. 116, 127 ; Bolling v. Sharpe, 347 U.S. 497, 499 -500; Truax v. Raich, 239 U.S. 33, 41 . [410 U.S. 113, 169]

As Mr. Justice Harlan once wrote: "[T]he full scope of the liberty guaranteed by the Due Process Clause cannot be found in or limited by the precise terms of the specific guarantees elsewhere provided in the Constitution. This `liberty' is not a series of isolated points pricked out in terms of the taking of property; the freedom of speech, press, and religion; the right to keep and bear arms; the freedom from unreasonable searches and seizures; and so on. It is a rational continuum which, broadly speaking, includes a freedom from all substantial arbitrary impositions and purposeless restraints . . . and which also recognizes, what a reasonable and sensitive judgment must, that certain interests require particularly careful scrutiny of the state needs asserted to justify their abridgment." Poe v. Ullman, 367 U.S. 497, 543 (opinion dissenting from dismissal of appeal) (citations omitted). In the words of Mr. Justice Frankfurter, "Great concepts like . . . `liberty' . . . were purposely left to gather meaning from experience. For they relate to the whole domain of social and economic fact, and the statesmen who founded this Nation knew too well that only a stagnant society remains unchanged." National Mutual Ins. Co. v. Tidewater Transfer Co., 337 U.S. 582, 646 (dissenting opinion).
Several decisions of this Court make clear that freedom of personal choice in matters of marriage and family life is one of the liberties protected by the Due Process Clause of the Fourteenth Amendment. Loving v. Virginia, 388 U.S. 1, 12 ; Griswold v. Connecticut, supra; Pierce v. Society of Sisters, supra; Meyer v. Nebraska, supra. See also Prince v. Massachusetts, 321 U.S. 158, 166 ; Skinner v. Oklahoma, 316 U.S. 535, 541 . As recently as last Term, in Eisenstadt v. Baird, 405 U.S. 438, 453 , we recognized "the right of the individual, married or single, to be free from unwarranted governmental intrusion into matters so fundamentally affecting a person [410 U.S. 113, 170] as the decision whether to bear or beget a child." That right necessarily includes the right of a woman to decide whether or not to terminate her pregnancy. "Certainly the interests of a woman in giving of her physical and emotional self during pregnancy and the interests that will be affected throughout her life by the birth and raising of a child are of a far greater degree of significance and personal intimacy than the right to send a child to private school protected in Pierce v. Society of Sisters, 268 U.S. 510 (1925), or the right to teach a foreign language protected in Meyer v. Nebraska, 262 U.S. 390 (1923)." Abele v. Markle, 351 F. Supp. 224, 227 (Conn. 1972).

Clearly, therefore, the Court today is correct in holding that the right asserted by Jane Roe is embraced within the personal liberty protected by the Due Process Clause of the Fourteenth Amendment.

It is evident that the Texas abortion statute infringes that right directly. Indeed, it is difficult to imagine a more complete abridgment of a constitutional freedom than that worked by the inflexible criminal statute now in force in Texas. The question then becomes whether the state interests advanced to justify this abridgment can survive the "particularly careful scrutiny" that the Fourteenth Amendment here requires.

The asserted state interests are protection of the health and safety of the pregnant woman, and protection of the potential future human life within her. These are legitimate objectives, amply sufficient to permit a State to regulate abortions as it does other surgical procedures, and perhaps sufficient to permit a State to regulate abortions more stringently or even to prohibit them in the late stages of pregnancy. But such legislation is not before us, and I think the Court today has thoroughly demonstrated that these state interests cannot constitutionally support the broad abridgment of personal [410 U.S. 113, 171] liberty worked by the existing Texas law. Accordingly, I join the Court's opinion holding that that law is invalid under the Due Process Clause of the Fourteenth Amendment.


[ Footnote 1 ] Only Mr. Justice Harlan failed to join the Court's opinion, 372 U.S., at 733 .


[ Footnote 2 ] There is no constitutional right of privacy, as such. "[The Fourth] Amendment protects individual privacy against certain kinds of governmental intrusion, but its protections go further, and often have nothing to do with privacy at all. Other provisions of [410 U.S. 113, 168] the Constitution protect personal privacy from other forms of governmental invasion. But the protection of a person's general right to privacy - his right to be let alone by other people - is, like the protection of his property and of his very life, left largely to the law of the individual States." Katz v. United States, 389 U.S. 347, 350 -351 (footnotes omitted).


[ Footnote 3 ] This was also clear to Mr. Justice Black, 381 U.S., at 507 (dissenting opinion); to Mr. Justice Harlan, 381 U.S., at 499 (opinion concurring in the judgment); and to MR. JUSTICE WHITE, 381 U.S., at 502 (opinion concurring in the judgment). See also Mr. Justice Harlan's thorough and thoughtful opinion dissenting from dismissal of the appeal in Poe v. Ullman, 367 U.S. 497, 522 . From: ROE v. WADE, 410 U.S. 113 (1973)

No wonder the Constitution as "revised" (amended) by activist Justices is so inconprehensible.

As for Justice Hand's "Platonic Guardians" - of course we know just how they are chosen - by the President of the United States with the "advice and consent" of the Senate. (See: Judge Samuel Alito's confirmation hearings as an example.)
1.17.2006 1:39pm
Neal Lang (mail):
Yes, the finding in Griswold was based in part on the Fourth Amendment. But the Fourth Amendment is not based on Griswold. It speaks for itself.

Exactly! And nowhere in the 4th Amendment is the term "surveillance", nor the term "conversations", nor is the term "electronic communications". The very idea that Founders, when they ratified the 4th Amendment, had somehow had in mind a prohibition against the "surviellance" directed at the communications of enemy "foreign agents" (much less common criminals) as said enemy "foreign agents" conspire to destroy the Constitution of United States of America and harm "the People" of the United States is quite bizarre.
Eavesdropping accomplished by means of such a physical intrusion is beyond the pale of even those decisions in [365 U.S. 505, 510] which a closely divided Court has held that eavesdropping accomplished by other electronic means did not amount to an invasion of Fourth Amendment rights. In Goldman v. United States, supra, the Court held that placing a detectaphone against an office wall in order to listen to conversations taking place in the office next door did not violate the Amendment. In On Lee v. United States, supra, a federal agent, who was acquainted with the petitioner, entered the petitioner's laundry and engaged him in an incriminating conversation. The agent had a microphone concealed upon his person. Another agent, stationed outside with a radio receiving set, was tuned in on the conversation, and at the petitioner's subsequent trial related what he had heard. These circumstances were held not to constitute a violation of the petitioner's Fourth Amendment rights.

But in both Goldman and On Lee the Court took pains explicitly to point out that the eavesdropping had not been accomplished by means of an unauthorized physical encroachment within a constitutionally protected area. In Goldman there had in fact been a prior physical entry into the petitioner's office for the purpose of installing a different listening apparatus, which had turned out to be ineffective. The Court emphasized that this earlier physical trespass had been of no relevant assistance in the later use of the detectaphone in the adjoining office. 316 U.S., at 134 -135. And in On Lee, as the Court said, ". . . no trespass was committed." The agent went into the petitioner's place of business "with the consent, if not by the implied invitation, of the petitioner." 343 U.S., at 751 -752.

The absence of a physical invasion of the petitioner's premises was also a vital factor in the Court's decision in Olmstead v. United States, 277 U.S. 438 . In holding that the wiretapping there did not violate the Fourth Amendment, the Court noted that "[t]he insertions [365 U.S. 505, 511] were made without trespass upon any property of the defendants. They were made in the basement of the large office building. The taps from house lines were made in the streets near the houses." 277 U.S., at 457 . "There was no entry of the houses or offices of the defendants." 277 U.S., at 464 . Relying upon these circumstances, the Court reasoned that "[t]he intervening wires are not part of [the defendant's] house or office any more than are the highways along which they are stretched." 277 U.S., at 465 . From: SILVERMAN v. UNITED STATES, 365 U.S. 505 (1961)

Trying to "cipher" the real meaning of the 4th Amendment from multitude of positions taken from the decisions propounded by many different Supreme Courts is like trying ascertain the meaning of a message cryptically written in a "one-time pad".

While the word "privacy" is not mentioned anywhere in the 4th Amendment (nor anywhere else in the Constitution, for that matter), we are told by the Supremes that this amendment protects "the people's right" of an "expectation of privacy" concerning their utterances, whether such "utterances" be criminal in nature or directed towards plots to disturb the "domestic Tranquility". To "get there from here" our "Plotonic Guardians" do not consult the "entrails of an owl", but instead fathom the "real meaning" of variety "rights" from a "penumbra" which apparently some, but by no means all, of their "Holy Order" find hidden somewhere in between lines or in the margins of the Constitution, as ratified. Frankly, I would prefer they used the "entrails of an owl"!
1.17.2006 2:58pm
Just an Observer:
Neal Lang,

Well, I now understand that not only do you consider Griswold to have been wrongly decided, but Katz as well. That, of course, has some serious ramifications for domestic law enforcement and criminal procedure.

In your universe of legal analysis, where you feel free to undo landmark Supreme Court rulings as you see fit to advance your rhetorical case here, I understand how that must seem important to you.

In my universe, legal analysis is compelled to follow Supreme Court precedent. So however much I might be interested in how far you would go in unraveling decades of jurisprudence -- which isn't very interested at all, actually -- this has little bearing on the legal issues at hand.
1.17.2006 5:02pm
Neal Lang (mail):
In my universe, legal analysis is compelled to follow Supreme Court precedent. So however much I might be interested in how far you would go in unraveling decades of jurisprudence -- which isn't very interested at all, actually -- this has little bearing on the legal issues at hand.

Actually, I would prefer that the Constitution is amended the old fashion way - by application of the proscribed Article V methodology.

In your universe does the Supremes have to follow the Constitution? Apparently not. "Decades of jurisprudence" by creative jurists are unraveling our easily understood, plainly written Constitution. Unfortunately, for your "universe", according to Article VI, the law of the land is the Constitution and not a "morphing" precedent of changing Supreme Court majorities.

As demonstrated, the precedent in the area of the mythical Constitutional "right of privacy" changes depending on the composition of the Supreme Court. IMMHO, this is the very essence of government by the "rule of men", as oppose to the "rule of law". Laws are "written down" for a reason. If "the People" feel that the 4th Amendment is lacking in some substantial way, such as their "privacy" desires in making phone calls, then by all means "the People" should get their "elected" representatives to amend the Constitution so as to provide "security" for their telephonic communications, following the "authority" proscribed in Article V to do just that.

I suggest that if these activist Justices feel that Constitution is deficient in some substantial way in order to address "their deepest wants and desires", that they should do the honest thing - resign their Supreme Court office, run for election to Congress, and then get the requisite numbers of their legislative colleagues to support their "vision", along with 3/4 of the States legislatures. There was a good reason the Framers made the Constitution difficult to amend. None expressed the idea that an alternative to the stated Article V method was merely to get 5 of 9 Supreme Court Justices to agree to a specific change. Neither did any of the Framers opine that they included a "penumbra" of stealth "rights", carefully hidden so as to be only be seen by certain future "visionary" Justices. I am afraid that these "Plutonic Guardians" have truly made the Federal Judiciary the real "Despotc Branch"!

One of the problems with amending the Constitution through Supreme Court precedent is that an understanding of just what "rights" have specific Constitutional protected cannot be discerned by simply reading the document. I find it instructive that most of these Constitution changing precedent setting opinions are substantially longer the than the document itself, even as amended. The Framers believed in the simplicity of a written, easily understood Constitution. This is exactly what they ratified. Since the "Plutonic Guardians" havc had their way with our Constitution, not even a lawyer understands it "true" meaning. Instead of a "government of laws" we get a legalistic "crap shoot". BTW, if not plainly written and easily understood by "the People", just how is a "government of laws" possible?
In your universe of legal analysis, where you feel free to undo landmark Supreme Court rulings as you see fit to advance your rhetorical case here, I understand how that must seem important to you.

In my universe, the Federal Judiciary intreprets the Constitution per their Article VI limitations, to wit:
Article VI

This Constitution, and the Laws of the United States which shall be made in Pursuance thereof; and all Treaties made, or which shall be made, under the Authority of the United States, shall be the supreme Law of the Land; and the Judges in every State shall be bound thereby, any Thing in the Constitution or Laws of any State to the Contrary notwithstanding.

Unfortunately, too many Federal Judges don't believe that they are necessarily bound by "This Constitution", and thus continue to bend it to suit their fancy. BTW, since when is "landmark Supreme Court rulings", and not the ratified Constiution, the "supreme Law of the Land"? The Article III "power" of Judiciary is specifically limited to the ratified Constitution, and not "Landmark Supreme Court rulings", according to Section 2 of said Article, to wit:
[Section 2.] The judicial Power shall extend to all Cases, in Law and Equity, arising under this Constitution, the Laws of the United States, and Treaties made, or which shall be made, under their Authority;

The "their Authority" referenced in Article III is the Constitution, Laws and Treaties of the United States, the same as Article VI and not "landmark Supreme Court rulings"!
1.17.2006 7:51pm
Just an Observer:
Neal Lang,

In a different context, in a different thread, there are folks who might be interested in engaging you in a discussion of what landmark Supreme Court cases might have been wrongly decided, and what constitutional theories might lead to different different conclusion.

My point is that this thread is about a real-life controversy -- the NSA surveillance program. If I thought there were the slightest chance that Paul Clement would argue before the Supreme Court in this matter that Katz v United States should be overturned on the basis of your theory, I would find it useful to consider it here.

I don't.
1.17.2006 8:30pm
Neal Lang (mail):
In a different context, in a different thread, there are folks who might be interested in engaging you in a discussion of what landmark Supreme Court cases might have been wrongly decided, and what constitutional theories might lead to different different conclusion.

Please provide the Article, Section, and Clause of the Constitution which states that the "Supreme Law of the Country" is "landmark Supreme Court cases".

As Judge Sam Alito said to that idiot, Senator Chunky Schumer, when the Senator got Alito to agree that "Free Speech" is constitutionaly protect, while the good judge would not "leap" to a similar conclusion regarding abortion - "Because 'Free Speech' is actually in the Constitution." Nowhere in the Constitution does it state that anyone has a "right" to an "expectation of privacy" with regards to their telephone calls. If that is not the case, then please, by all means, point it out to me, when you point out the Article, Section, and Clause which makes "landmark Supreme Court cases", the "Supreme law of the land".
1.18.2006 6:29pm