Skip to comments.Sunday Morning Show *Preview* for 2/19/06 (not the live thread)
Posted on 02/17/2006 3:01:50 PM PST by Phsstpok
Fox News Sunday (Chris Wallace)
NBC Meet The Press (Tim Russert)
CBS Face The Nation (Bob Schieffer)
ABC This Week (George Stephanopoulos)
CNN Late Edition (Wolf Blitzer)
I would particularly ask that anyone with specific knowledge or resources about the topics / guests announced for these shows post them here so that the rest of us can go into the shows with a heads up on what to look for. For example, Will anyone bring up Andrew McCarthy's complete destruction of George Will's column about the legality of the NSA program?
I am watching Heartland w/ John Kasich (yuck)...and he has on Bill Kristol..
And Kristol is talking about a subject that COULD overshadow the Katrina and Cheney stories...even NSA..
and that is the Dubai/UAE acquistion of the British Company that handled the port operations at some American ports...
It seems that Kristol, and a lot of conservatives are angry not just about the approval of the sale, thus installing them as the owners with access to US ports...but also that this allows (because she stuck her finger in the political wind) Hillary to go to the "right" of President Bush on national security...which is HIS main strong suit.
The only person that I have heard speak un-histrionically (is that a word?) about this is Tony Snow...and he seems to find it much ado about not so much.
So...Sunday's "scandal du jour" may be this port story.
As you have said....( I forgot that I had asked you your opinion before)..it is a very complicated question, and in some ways, even what the NSA has done up until now, may be not enough...if they aren't tapping domestic calls between terrorist cells within the USA borders...
However, on a purely political basis....what would these same critics be saying if this NSA program had NOT been started, or if they DID wait for warrants, and an attack had occurred before now...
Don't you think the "impeachment" talk would be even louder than it is for his doing it??
Part and parcel of "expecting pefection," pushing responsibility UP the ladder to the Federal Government, and a tacit PROMISE of "we'll do all we can to stop all the big attacks." See Katrina for a parallel. Thank God we don't get all the government we pay for.
And you'll notice the court cases and legislation use the phrase "foreign intelligence information." In that arena, the President has free reign.
What's a real pisser is when your (nominally foreign) enemy is on your soil, in your schools, at your workplace, and in some cases, are "fellow citizens," etc. Rooting it out in that arrangement will necessarily impinge on innocents. And once terrorism is defined down to the level of "ordinary criminal activity" (meaning the number of victims is not dramatically large), the government has an excuse to surveil everybody, at any time, in order to prevent a harm of the magnitude of "ordinary crime." See e.g., Columbine, D.C. Snipers, Manson.
if you picture a Taliban type government overthrowing our government, by using our system of protecting civil liberties in their quest to overtake us...it makes one wonder at the risk vs. precedent.
I don't worry about the Taliban-type organized overthrow as much as I do a slow suicide by political correctness and widespread willing individual submission to an intrusive protector.
Boy....that was a puny effort compared to YOURS...
You should submit yours to some of these websites...you would knock them over with your thoroughness!
Based on your last post...
Wouldn't you put organized crime in the catagory of individuals being surveilled, but of "ordinary criminal activity"?
And yet, isn't the government allowed to wiretap them under the RICO act??
if I allowed my genius to overwhelm all opposition then I would soon be the target of the snarling mob with their pitchforks.
Now, if you'll excuse me, there's this paper of Professor Einstein's I've been meaning to correct for some time now. Imagine, such a famous man and he forgot to carry the 2!
Yep. And there is no need to invoke RICO to get a sureveillance warrant. All the government has to show is probable cause.
Check Douglas and Brennan's rhetoric in the Katz case. Black's dissent is not as farfetched as one might think, as SCOTUS had expressly ruled that wiretapping (without a warrant) was not a search, and therefore not subject to a requirement to be "reasonable," in Olmstead. Maybe we're headed back to the future on the interpretation of the 4th amendment.
Okay....I am a Black backer in the Katz case...he makes so much sense, because his is using the EXACT language of the 4th Amendment...but, stops cold anyone who wants to use "improve technology" as a reason to "change"...
by, explaining that even the patriots that fought the Revolutionary War used "surveillance" by eavesdropping behind walls, and bushes to learn the plans by "the enemy", and had they felt that listening through walls or behind bushes violated someones privacy, they would have made this a need for judical oversight.
I also noticed, too, that even the other justice excluded the POTUS and AG when it came to surveillance for national security in their concurrence.
BTW...isn't it the 4th Amendment's "right to privacy" that abortion advocates and the court in Roe v. Wade used to justify a woman's right to "choose"???
Sort of, but not entirely. The case in question would be Griswold v. Connecticut. It found the "right to privacy" by three different routes, in four separate opinions within one opinion.
Yes, the "penumbra" most directly cited in Griswold is that of the fourth amendment. The right to be secure in one's own home, and to have security over one's own person, papers and effects. But that is not the only amendment cited for privacy, and indeed, the same conclusion of the case can be reached without touching on the bill of rights.
The majority opinion of the court found the protected right in a combination of penumbras of several amendments. More particularly, in a combination of the 1st, 3rd, 4th and 5th; augmented by the due process clause of the 14th.
A concurring opinion by GOLDBERG, WARREN and BRENNAN found the right not expressed to the people in the bill of rights, but excluded from government regulation, with an argument relying on the ninth amendment (applied against the states by operation of the 14th amendment) instead of on the 1st, 3rd, 4th and 5th.
The concurring opinion of HARLAN finds the right in the 14th amendment's due process clause, without reference to any other amendment.
The concurring opinion of WHITE (I think he got it right, BTW), also bottoms out on the due process clause of 14th amendment, but his analysis is heavily fact based. "What is the object of the law, and how does this law facilitate obtaining that object?" Finding the law is not rationally connected to the object it claims, and also interfering with legitimate personal liberty, he would strike it down - and expressly WITHOUT REFERENCE TO THE BILL OF RIGHTS.
I will, as a matter of having a complete summary, comment also on the dissent of BLACK, joined by STEWART; and of STEWART, joined by BLACK. The essence of their dissents is that correction of this law is NOT within the power of the Court. That if the people find this law offensive or unreasonable, they must petition their legislature for relief, rather than petition the Court.
The dissent of STEWART dismisses the 14th amendment argument by asserting that "due process" refers only to the process of prosecuting offenses, not to what constitutes an offense in the first place. He dismisses the 9th amendment as a "mere truism," and certainly as not giving a power to a federal court to invalidate a state law. He dismisses the 1st, 3rd, 4th and 5th amendment arguments easily, as none of them has been violated.
STEWART flat out sees NO right of privacy in the Constitution, and concludes as BLACK does, that if the people find this law offensive or unreasonable, they must petition their legislature for relief, rather than petition the Court.
A brief aside -- Chief Justice Roberts, in his hearings, noted that his agreement with Griswold was based on due process considerations. I don't recall if he expressly dismissed the "penumbras and emanantions" logic, but he certainly inferred it by pointing out his agreement was based on due process considerations. In ConLaw, the notion is referred to as "substantive due process," and it too has some baggage. But the discussion of "substantive due porcess baggage" would make this already long post, longer.
I will say that I rather like that the NSA terrorist surveillance discussion is being seen as more than a Congress vs. the President issue. At some point the Courts become implicated, and also, to crib some words from Lincoln, the people are implicated too.
Four score and seven years ago our fathers brought forth on this continent, a new nation, conceived in Liberty, and dedicated to the proposition that all men are created equal.
Now we are engaged in a great civil war, testing whether that nation, or any nation so conceived and so dedicated, can long endure. We are met on a great battle-field of that war. We have come to dedicate a portion of that field, as a final resting place for those who here gave their lives that that nation might live. It is altogether fitting and proper that we should do this.
But, in a larger sense, we can not dedicate -- we can not consecrate -- we can not hallow -- this ground. The brave men, living and dead, who struggled here, have consecrated it, far above our poor power to add or detract. The world will little note, nor long remember what we say here, but it can never forget what they did here. It is for us the living, rather, to be dedicated here to the unfinished work which they who fought here have thus far so nobly advanced. It is rather for us to be here dedicated to the great task remaining before us -- that from these honored dead we take increased devotion to that cause for which they gave the last full measure of devotion -- that we here highly resolve that these dead shall not have died in vain -- that this nation, under God, shall have a new birth of freedom -- and that government of the people, by the people, for the people, shall not perish from the earth.
GRISWOLD v. CONNECTICUT, 381 U.S. 479 (1965)
MR. JUSTICE DOUGLAS delivered the opinion of the Court.
Coming to the merits, we are met with a wide range of questions that implicate the Due Process Clause of the Fourteenth Amendment. ... We do not sit as a super-legislature to determine the wisdom, need, and propriety of laws that touch economic problems, business affairs, or social conditions. This law, however, operates directly on an intimate relation of husband and wife and their physician's role in one aspect of that relation.
The association of people is not mentioned in the Constitution nor in the Bill of Rights. The right to educate a child in a school of the parents' choice - whether public or private or parochial - is also not mentioned. Nor is the right to study any particular subject or any foreign language. Yet the First Amendment has been construed to include certain of those rights. ...
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 present case, then, concerns a relationship lying within the zone of privacy created by several fundamental constitutional guarantees. And it concerns a law which, in forbidding the use of contraceptives rather than regulating their manufacture or sale, seeks to achieve its goals by means having a maximum destructive impact upon that relationship. Such a law cannot stand in light of the familiar principle, so often applied by this Court, that a "governmental purpose to control or prevent activities constitutionally subject to state regulation may not be achieved by means which sweep unnecessarily broadly and thereby invade the area of protected freedoms." ...
We deal with a right of privacy older than the Bill of Rights - older than our political parties, older than our school system. Marriage is a coming together for better or for worse, hopefully enduring, and intimate to the degree of being sacred. It is an association that promotes a way of life, not causes; a harmony in living, not political faiths; a bilateral loyalty, not commercial or social projects. Yet it is an association for as noble a purpose as any involved in our prior decisions.
MR. JUSTICE GOLDBERG, whom THE CHIEF JUSTICE and MR. JUSTICE BRENNAN join, concurring.
I agree with the Court that Connecticut's birth-control law unconstitutionally intrudes upon the right of marital privacy, and I join in its opinion and judgment. Although I have not accepted the view that "due process" as used in the Fourteenth Amendment incorporates all of the first eight Amendments, I do agree that the concept of liberty protects those personal rights that are fundamental, and is not confined to the specific terms of the Bill of Rights. My conclusion that the concept of liberty is not so restricted and that it embraces the right of marital privacy though that right is not mentioned explicitly in the Constitution is supported both by numerous decisions of this Court, referred to in the Court's opinion, and by the language and history of the Ninth Amendment. In reaching the conclusion that the right of marital privacy is protected, as being within the protected penumbra of specific guarantees of the Bill of Rights, the Court refers to the Ninth Amendment, ante, at 484. I add these words to emphasize the relevance of that Amendment to the Court's holding. ...
The language and history of the Ninth Amendment reveal that the Framers of the Constitution believed that there are additional fundamental rights, protected from governmental infringement, which exist alongside those fundamental rights specifically mentioned in the first eight constitutional amendments.
The Ninth Amendment reads, "The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people." The Amendment is almost entirely the work of James Madison. It was introduced in Congress by him and passed the House and Senate with little or no debate and virtually no change in language. It was proffered to quiet expressed fears that a bill of specifically enumerated rights could not be sufficiently broad to cover all essential rights and that the specific mention of certain rights would be interpreted as a denial that others were protected. ...
The Ninth Amendment to the Constitution may be regarded by some as a recent discovery and may be forgotten by others, but since 1791 it has been a basic part of the Constitution which we are sworn to uphold. To hold that a right so basic and fundamental and so deep-rooted in our society as the right of privacy in marriage may be infringed because that right is not guaranteed in so many words by the first eight amendments to the Constitution is to ignore the Ninth Amendment and to give it no effect whatsoever. Moreover, a judicial construction that this fundamental right is not protected by the Constitution because it is not mentioned in explicit terms by one of the first eight amendments or elsewhere in the Constitution would violate the Ninth Amendment, which specifically states that "[t]he enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people." ...
I agree fully with the Court that, applying these tests, the right of privacy is a fundamental personal right, emanating "from the totality of the constitutional scheme under which we live." Id., at 521. Mr. Justice Brandeis, dissenting in Olmstead v. United States, 277 U.S. 438, 478 [the "wire tapping is not a search, therefore the 'reasonable' test is not applicable" case], comprehensively summarized the principles underlying the Constitution's guarantees of privacy:
"The protection guaranteed by the [Fourth and Fifth] Amendments is much broader in scope. The makers of our Constitution undertook to secure conditions favorable to the pursuit of happiness. They recognized the significance of man's spiritual nature, of his feelings and of his intellect. They knew that only a part of the pain, pleasure and satisfactions of life are to be found in material things. They sought to protect Americans in their beliefs, their thoughts, their emotions and their sensations. They conferred, as against the Government, the right to be let alone - the most comprehensive of rights and the right most valued by civilized men."
... Although the Constitution does not speak in so many words of the right of privacy in marriage, I cannot believe that it offers these fundamental rights no protection. The fact that no particular provision of the Constitution [381 U.S. 479, 496] explicitly forbids the State from disrupting the traditional relation of the family - a relation as old and as fundamental as our entire civilization - surely does not show that the Government was meant to have the power to do so. Rather, as the Ninth Amendment expressly recognizes, there are fundamental personal rights such as this one, which are protected from abridgment by the Government though not specifically mentioned in the Constitution. ...
In sum, I believe that the right of privacy in the marital relation is fundamental and basic - a personal right "retained by the people" within the meaning of the Ninth Amendment. Connecticut cannot constitutionally abridge this fundamental right, which is protected by the Fourteenth Amendment from infringement by the States. I agree with the Court that petitioners' convictions must therefore be reversed.
MR. JUSTICE HARLAN, concurring in the judgment.
I fully agree with the judgment of reversal, but find myself unable to join the Court's opinion. The reason is that it seems to me to evince an approach to this case very much like that taken by my Brothers BLACK and STEWART in dissent, namely: the Due Process Clause of the Fourteenth Amendment does not touch this Connecticut statute unless the enactment is found to violate some right assured by the letter or penumbra of the Bill of Rights.
In other words, what I find implicit in the Court's opinion is that the "incorporation" doctrine may be used to restrict the reach of Fourteenth Amendment Due Process. For me this is just as unacceptable constitutional doctrine as is the use of the "incorporation" approach to impose upon the States all the requirements of the Bill of Rights as found in the provisions of the first eight amendments and in the decisions of this Court interpreting them. ...
In my view, the proper constitutional inquiry in this case is whether this Connecticut statute infringes the Due Process Clause of the Fourteenth Amendment because the enactment violates basic values "implicit in the concept of ordered liberty," Palko v. Connecticut, 302 U.S. 319, 325 . For reasons stated at length in my dissenting opinion in Poe v. Ullman, supra, I believe that it does. While the relevant inquiry may be aided by resort to one or more of the provisions of the Bill of Rights, it is not dependent on them or any of their radiations. The Due Process Clause of the Fourteenth Amendment stands, in my opinion, on its own bottom.
MR. JUSTICE WHITE, concurring in the judgment.
In my view this Connecticut law as applied to married couples deprives them of "liberty" without due process of law, as that concept is used in the Fourteenth Amendment. I therefore concur in the judgment of the Court reversing these convictions under Connecticut's aiding and abetting statute.
It would be unduly repetitious, and belaboring the obvious, to expound on the impact of this statute on the liberty guaranteed by the Fourteenth Amendment against arbitrary or capricious denials or on the nature of this liberty. Suffice it to say that this is not the first time this Court has had occasion to articulate that the liberty entitled to protection under the Fourteenth Amendment includes the right "to marry, establish a home and bring up children," ... Surely the right invoked in this case, to be free of regulation of the intimacies of the marriage relationship, "come[s] to this Court with a momentum for respect lacking when appeal is made to liberties which derive merely from shifting economic arrangements."
The Connecticut anti-contraceptive statute deals rather substantially with this relationship. For it forbids all married persons the right to use birth-control devices, regardless of whether their use is dictated by considerations of family planning, health, or indeed even of life itself. ...
Rather, the statute is said to serve the State's policy against all forms of promiscuous or illicit sexual relationships, be they premarital or extramarital, concededly a permissible and legitimate legislative goal.
Without taking issue with the premise that the fear of conception operates as a deterrent to such relationships in addition to the criminal proscriptions Connecticut has against such conduct, I wholly fail to see how the ban on the use of contraceptives by married couples in any way reinforces the State's ban on illicit sexual relationships. Connecticut does not bar the importation or possession of contraceptive devices; they are not considered contraband material under state law, and their availability in that State is not seriously disputed. The only way Connecticut seeks to limit or control the availability of such devices is through its general aiding and abetting statute whose operation in this context has been quite obviously ineffective and whose most serious use has been against birth-control clinics rendering advice to married, rather than unmarried, persons. Indeed, after over 80 years of the State's proscription of use, the legality of the sale of such devices to prevent disease has never been expressly passed upon, although it appears that sales have long occurred and have only infrequently been challenged. This "undeviating policy . . . throughout all the long years . . . bespeaks more than prosecutorial paralysis." Moreover, it would appear that the sale of contraceptives to prevent disease is plainly legal under Connecticut law.
In these circumstances one is rather hard pressed to explain how the ban on use by married persons in any way prevents use of such devices by persons engaging in illicit sexual relations and thereby contributes to the State's policy against such relationships. Neither the state courts nor the State before the bar of this Court has tendered such an explanation. It is purely fanciful to believe that the broad proscription on use facilitates discovery of use by persons engaging in a prohibited relationship or for some other reason makes such use more unlikely and thus can be supported by any sort of administrative consideration. Perhaps the theory is that the flat ban on use prevents married people from possessing contraceptives and without the ready availability of such devices for use in the marital relationship, there will be no or less temptation to use them in extramarital ones. This reasoning rests on the premise that married people will comply with the ban in regard to their marital relationship, notwithstanding total nonenforcement in this context and apparent nonenforcibility, but will not comply with criminal statutes prohibiting extramarital affairs and the anti-use statute in respect to illicit sexual relationships, a premise whose validity has not been demonstrated and whose intrinsic validity is not very evident. ...
The traditional due process test was well articulated, and applied, in Schware v. Board of Bar Examiners, supra, a case which placed no reliance on the specific guarantees of the Bill of Rights.
"A State cannot exclude a person from the practice of law or from any other occupation in a manner or for reasons that contravene the Due Process or Equal Protection Clause of the Fourteenth Amendment. A State can require high standards of qualification, such as good moral character or proficiency in its law, before it admits an applicant to the bar, but any qualification must have a rational connection with the applicant's fitness or capacity to practice law. Obviously an applicant could not be excluded merely because he was a Republican or a Negro or a member of a particular church. Even in applying permissible standards, officers of a State cannot exclude an applicant when there is no basis for their finding that he fails to meet these standards, or when their action is invidiously discriminatory."
MR. JUSTICE BLACK, with whom MR. JUSTICE STEWART joins, dissenting.
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. ...
The due process argument which my Brothers HARLAN and WHITE adopt here is based, as their opinions indicate, on the premise that this Court is vested with power to invalidate all state laws that it considers to be arbitrary, capricious, unreasonable, or oppressive, or on this Court's belief that a particular state law under scrutiny has no "rational or justifying" purpose, or is offensive to a "sense of fairness and justice." If these formulas based on "natural justice," or others which mean the same thing, are to prevail, they require judges to determine [381 U.S. 479, 512] what is or is not constitutional on the basis of their own appraisal of what laws are unwise or unnecessary. The power to make such decisions is of course that of a legislative body. Surely it has to be admitted that no provision of the Constitution specifically gives such blanket power to courts to exercise such a supervisory veto over the wisdom and value of legislative policies and to hold unconstitutional those laws which they believe unwise or dangerous. ... While I completely subscribe to the holding of Marbury v. Madison, 1 Cranch 137, and subsequent cases, that our Court has constitutional power to strike down statutes, state or federal, that violate commands of the Federal Constitution, I do not believe that we are granted power by the Due Process Clause or any other constitutional provision or provisions to measure constitutionality by our belief that legislation is arbitrary, capricious or unreasonable, or accomplishes no justifiable purpose, or is offensive to our own notions of "civilized standards of conduct." 5 Such an appraisal of the wisdom of legislation is an attribute of the power to make laws, not of the power to interpret them. The use by federal courts of such a formula or doctrine or whatnot to veto federal or state laws simply takes away from Congress and States the power to make laws based on their own judgment of fairness and wisdom and transfers that power to this Court for ultimate determination - a power which was specifically denied to federal courts by the convention that framed the Constitution. ...
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," 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 knew how to choose them, which I assuredly do not."
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.
MR. JUSTICE STEWART, whom MR. JUSTICE BLACK joins, dissenting.
... 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. ...
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. 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." 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." No soldier has been quartered in any house. There has been no search, and no seizure. Nobody has been compelled to be a witness against himself.
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.
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.
BLACK's dissent is also a bit more complex than you seem to be taking it. He addresses both the Court's power to exclude evidence on a case-by-case basis; and while not expressly, his language admits the possibility of Congressional action to prohibit electronic surveillance.
In fact, by the time of the Katz decision, Congress had already acted in the wake of the Olmstead case, to prohibit certain forms of wiretapping and excluding certain evidence from criminal trials. A darn good summary of the development of the law is at http://caselaw.lp.findlaw.com/data/constitution/amendment04/05.html, and I urge any person interested in learning some details, to READ IT.
My basic objection is twofold: (1) I do not believe that the words of the Amendment will bear the meaning given them by today's decision, and (2) I do not believe that it is the proper role of this Court to rewrite the Amendment in order "to bring it into harmony with the times" and thus reach a result that many people believe to be desirable. ...
While my reading of the Olmstead and Goldman cases convinces me that they were decided on the basis of the inapplicability of the wording of the Fourth Amendment to eavesdropping, and not on any trespass basis, this is not to say that unauthorized intrusion has not played an important role in search and seizure cases. This Court has adopted an exclusionary rule to bar evidence obtained by means of such intrusions. As I made clear in my dissenting opinion in Berger v. New York, 388 U.S. 41, 76, I continue to believe that this exclusionary rule formulated in Weeks v. United States, 232 U.S. 383 , rests on the "supervisory power" of this Court over other federal courts and is not rooted in the Fourth Amendment. See Wolf v. Colorado, concurring opinion, 338 U.S. 25, 39 , at 40. See also Mapp v. Ohio, concurring opinion, 367 U.S. 643, 661 -666. This rule has caused the Court to refuse to accept evidence where there has been such an intrusion regardless of whether there has been a search or seizure in violation of the Fourth Amendment. As this Court said in Lopez v. United States, 373 U.S. 427, 438 -439, "The Court has in the past sustained instances of `electronic eavesdropping' against constitutional challenge, when devices have been used to enable government agents to overhear conversations which would have been beyond the reach of the human ear [citing [389 U.S. 347, 370] Olmstead and Goldman]. It has been insisted only that the electronic device not be planted by an unlawful physical invasion of a constitutionally protected area. Silverman v. United States." ...
The Fourth Amendment protects privacy only to the extent that it prohibits unreasonable searches and seizures of "persons, houses, papers, and effects." No general right is created by the Amendment so as to give this Court the unlimited power to hold unconstitutional everything which affects privacy. Certainly the Framers, well acquainted as they were with the excesses of governmental power, did not intend to grant this Court such omnipotent lawmaking authority as that. The history of governments proves that it is dangerous to freedom to repose such powers in courts.
I also noticed, too, that even the other justice excluded the POTUS and AG when it came to surveillance for national security in their concurrence.
The label "national security" has a different effect than "foreign intelligence."
MR. JUSTICE DOUGLAS, with whom MR. JUSTICE BRENNAN joins, concurring.
While I join the opinion of the Court, I feel compelled to reply to the separate concurring opinion of my Brother WHITE, which I view as a wholly unwarranted green light for the Executive Branch to resort to electronic eaves-dropping without a warrant in cases which the Executive Branch itself labels "national security" matters.
Neither the President nor the Attorney General is a magistrate. In matters where they believe national security may be involved they are not detached, disinterested, and neutral as a court or magistrate must be. Under the separation of powers created by the Constitution, the Executive Branch is not supposed to be neutral and disinterested. Rather it should vigorously investigate [389 U.S. 347, 360] and prevent breaches of national security and prosecute those who violate the pertinent federal laws. The President and Attorney General are properly interested parties, cast in the role of adversary, in national security cases. They may even be the intended victims of subversive action. Since spies and saboteurs are as entitled to the protection of the Fourth Amendment as suspected gamblers like petitioner, I cannot agree that where spies and saboteurs are involved adequate protection of Fourth Amendment rights is assured when the President and Attorney General assume both the position of adversary-and-prosecutor and disinterested, neutral magistrate.
But the President has unfettered power in the area of "foreign intelligence information." Of that there is no argument. And so, I continue to think that the interesting discussion will involve construction of the phrase, "foreign intelligence" working in tension against both Congressional legislation and the words of the 4th amendment.
Here's an academic question ... could a STATE pass a law that forbids interception of intrastate electronic communication of its citizens, unless a Court has issued a warrant upon preexisting probable cause? I don't know the answer, and figure it's irrelevant in practice - but shows another facet of the complexity of our system of government.
Thanks for answering my post...I know the dissent was much more complex...and I read it all...I just pointed out what jumped out to me last night...
You are very right though...the debate between these justices is fascinating...
And, I also believe that you are right about "this new kind of war" ... forcing much debate on the Constitutionality of different ways to fight it.
From the WH website this week, The Federal Response to Hurricane Katrina: Lessons Learned
In addition, as described in the narrative section of this report, the response to Hurricane Katrina demonstrated that our current system is too reactive in orientation. Our decades-old system, built on the precepts of federalism, has been based on a model whereby local and State governments wait to reach their limits and exhaust their resources before requesting Federal assistance. Federal agencies could and did take steps to prepare to extend support and assistance, but tended to provide little without a prior and specific request. In other words, the system was biased toward requests and the concept of "pull" rather than toward anticipatory actions and the proactive "push" of Federal resources.
While this approach has worked well in the majority of disasters and emergencies, catastrophic events like Hurricane Katrina are a different matter. The current homeland security environment--with the continuing threat of mass casualty terrorism and the constant risk of natural disasters--now demands that the Federal government actively prepare and encourage the Nation as a whole to plan, equip, train, and cooperate for all types of future emergencies, including the most catastrophic. ...
The creation of an effective National Preparedness System will require the Federal government to transform the way it does business. The most important objective of this Federal transformation must be to build and integrate operational capability. Each Federal department or agency with homeland security responsibilities needs operational capability--or the capacity to get things done--to translate executive management direction promptly into results on the ground. It includes the personnel to make and communicate decisions; organizational structures that are assigned, trained, and exercised for their missions; sufficient physical resources; and the command, control, and communication channels to make, monitor, and communicate decisions. ...
The imperative, therefore, is to organize coherent, proactive management of responses to catastrophic events. Virtually all elements of the Federal government must be operational--to respond to catastrophic events with unified effort. There are three principal requirements to achieve this transformational goal:
- . Strengthening DHS institutions to manage the Federal response as well as enhancing DHS regional and field elements.
- . Reinforcing the Secretary of Homeland Security's position as the President's manager of the Federal response; and
- . Strengthening the response capabilities--management and field resources--of other Federal departments and agencies.
... First and most important, Federal government response organizations must be co-located and strengthened to manage catastrophes in a new National Operations Center (NOC). ...
LESSON LEARNED: The Department of Homeland Security should develop a comprehensive program for the professional development and education of the Nation's homeland security personnel, including Federal, State and local employees as well as emergency management persons within the private sector, non-governmental organizations, as well as faith-based and community groups. This program should foster a "joint" Federal Interagency, State, local, and civilian team. ...
The challenges of transformation are not limited to the Executive Branch of government. Despite previous calls for transformation from national commissions, the U.S. Congress has not fully transformed itself for homeland security. The numerous congressional committees in both houses that authorize and appropriate funds for homeland security inevitably produce competing initiatives and requirements. For example, the Secretary of Homeland Security and his leadership team were required to testify at 166 hearings before 61 full committees and subcommittees in the Senate and House of Representatives and provided over 2,000 briefings during 2005 as of October 14, 2005. ...
... Compared with the deaths and economic chaos a nuclear detonation or influenza outbreak could unleash, Hurricane Katrina was small. But even these scenarios do not go far enough to challenge us to improve our level of preparedness. Until we can meet the standard set by the most demanding scenarios, we should not consider ourselves adequately prepared....
Today, we operate under two guiding principles: a) that incident management should begin at the lowest jurisdictional level possible, and b) that, for most incidents, the Federal government will generally play a supporting role to State and local efforts. [Here comes the "but," in the form of a "while."]While these principles suffice for the vast majority of incidents, they impede the Federal response to severe catastrophes. In a catastrophic scenario that overwhelms or incapacitates local and State incident command structures, the Federal government must be prepared to assume incident command and get assistance directly to those in need until State and local authorities are reconstituted.
The National Preparedness System must also recognize the role of the Federal government for monitoring and guiding national preparedness efforts. ; In particular, the system must ensure that the Federal government assesses the preparedness of localities across the country with an eye towards identifying the Federal response requirement for each. In addition, Federal, State, local, and private sector partners must agree on a system in which the Federal government responds more actively and effectively while respecting the role of State and local governments. [Three guesses who determines what is agreeable, and the first two guesses don't count.] ...