Letter from Senator Schumer

On Monday I emailed our senators, Charles Schumer and Hillary Clinton, to ask them to oppose the FISA bill. I was surprised and pleased to receive this email in response from Senator Schumer:

Thank you for your e-mail. Each and every piece of correspondence I receive is important because it allows me to better understand the New Yorkers I serve in the United States Senate.
As you can imagine, my office receives a great number of messages every day regarding a variety of issues – this is particularly true of e-mails. It makes me proud to know that my constituents take an active role in our government by corresponding with me, and I look forward to responding to your concerns in greater detail. In the meantime, I just wanted to let you know that your e-mail has been received, and to ask for your patience until I send you a more detailed response.
Again, thank you for writing. Please feel free to visit my website http://schumer.senate.gov to follow my work in the Senate and to learn more about the services my office can provide to you.
Warmest regards

While I don't agree with much of what Senator Schumer stands for, this email caused me to gain some respect for him. I appreciated this acknowledgement - even in an automatically generated email - that he is listening.

Privacy vs. National Security

I just got back from a week at moot court camp at PHC. The camp was extremely intense, perhaps overly so, but moot court itself was a lot of fun. The topic was "National Security vs. Privacy." The problem (you can read it here; note, however, that William Denolf did not appear in the problem we worked with) was extremely complicated and there were no easy answers, but ultimately I came down on the Libertarian side of the issue (surprise!). In brief, the government needed a warrant to surveil Bronner and Comerford.

Here's why (a summary of my petitioner case):

Reasoning
In the 1967 case Katz v. United States, the Supreme Court ruled that an individual is not subject to warrantless search if he has a reasonable expectation of privacy. As we look over the facts of this case, we will see that 1) the petitioners had a reasonable expectation of privacy, 2) the government did not meet the warrant requirement, and 3) the result of these two facts is that the search was unreasonable and therefore unconstitutional.

Bronner and Comerford had a reasonable expectation of privacy. In Katz, the Supreme Court ruled that this must be twofold: it must be subjective, and it must be objective. A subjective expectation of privacy answers the question, "Did the individuals believe that their communication was private?" That Bronner and Comerford did was directly stated in the problem. In Katz the Court ruled that "what an individual seeks to preserve as private, even in an area accessible to the public, may be constitutionally protected." Our problem states that BATM, of which the petitioners were members, "took measures aimed at making additional government surveillance difficult if not unlikely." Obviously, they sought to preserve their communication as private and therefore had a subjective expectation of privacy.

An objective expectation of privacy asks the question, "Was the individuals' expecation of privacy one that society is willing to accept?" The answer to this is a resounding "yes." These were private emails that the government was surveilling. The petitioners were "surely entitled to assume that their communication would not be broadcast to the world" [Katz]. To read the Constitution more narrowly, is, according to Katz, to "ignore the role that public telephone [in this case, wireless internet] has come to play in private communication."

As a result of the petitioners' reasonable expectation of privacy, the government needed a warrant to surveil. In U.S. v U.S. District Court and Katz, the Supreme Court ruled that there are two requirements for a warrant: it must be granted prior to search, and it must be granted by a neutral magistrate. Neither of these requirements were met. The government stumbled upon the information and continued to search without even attempting to apply for any warrant of any kind at any point throughout the case. Obviously, no neutral magistrate was ever involved. None whatsoever.

As a result of Bronner and Comerford's reasonable expectation of privacy and the government's failure to meet the warrant requirement, the search was, in the language of Katz, "per se unreasonable" and therefore, unconstitutional.

On the respondent side, one of the best arguments we had was the international nature of the communication. Regardless of one's beliefs as to the international elements of the case, it remains an undisputed fact that the petitioners' communication was international in nature. And the government has the power to surveil international communication. In U.S. v. Montoya de Herdandez, the Supreme Court noted that at the border, even first class mail may be searched without a warrant. The Court wrote that "the Fourth Amendment's balance of reasonableness is qualitatively different at the international border than in the interior. Routine searches of the persons and effects of entrants are not subject to any requirement of reasonable suspicion, probable cause, or warrant, and first-class mail may be opened without a warrant on less than probable cause." Since the petitioners were communicating through foreign email accounts and foreign servers, the government certainly had the power to search.

This was never discussed in a moot court round, but there is a critical flaw in this argument, and that is that email is not first class mail. The argument implies that if first class mail may be searched at the border, then surely email - a less private form of communication - may be searched also. But the difference between first class mail and email is that with first class mail, something physical crosses the border, whereas with email, electrons cross the border. The purpose of border searches of first class mail is to prevent the introduction of illegal substances into the country; simply glancing at the context of Montoya definitively settles this. The reasoning for warrantless searches of first class mail may not be applied to email.

The issue at stake here is not surveillance, but warrantless surveillance. We should certainly uphold the president's power to preserve national security, but we must insist that he follow the proper channels when doing so.

The Anti-Federalist

Today is Alexander Hamilton's birthday, so it's kind of ironic that today I discovered the Anti-Federalist Papers. Until today, I sided with the federalists, like any loyal American. After all, America wasn't doing well under the Articles of Confederation, and a stronger central government seemed like the clear solution. The Constitution itself seemed very well-planned, well-thought-out, and well-written. I assumed that our problems are solely the result of men dishonestly misinterpreting the Constitution.

Not so. The mess we're in now was actually predicted in 1787. The "Brutus" essays were a series of essays "To the Citizens of New York" that appeared in the newspaper during the same time period as did the Federalist. The author, believed to be New York judge Robert Yates, predicted the misuse of the "necessary and proper" clause and the corruption of the federal judiciary. About the necessary and proper clause, he wrote, "This government is to possess absolute and uncontroulable power, legislative, executive and judicial, with respect to every object to which it extends, for by the last clause of section 8th, article 1st, it is declared "that the Congress shall have power to make all laws which shall be necessary and proper for carrying into execution the foregoing powers, and all other powers vested by this constitution, in the government of the United States; or in any department or office thereof." (Essay I, 18 October 1787)

He continued, "the legislature of the United States are ... by this clause invested with the power of making all laws, proper and necessary, for carrying all these into execution; and they may so exercise this power as entirely to annihilate all the state governments, and reduce this country to one single government. And if they may do it, it is pretty certain they will; for it will be found that the power retained by individual states, small as it is, will be a clog upon the wheels of the government of the United States; the latter therefore will be naturally inclined to remove it out of the way. Besides, it is a truth confirmed by the unerring experience of ages, that every man, and every body of men, invested with power, are ever disposed to increase it, and to acquire a superiority over every thing that stands in their way."

He also wrote that "the powers given by this article are very general and comprehensive, and it may receive a construction to justify the passing [of] almost any law." [emphasis added] This is exactly what has happened.

In essay XI (31 January 1788), the author cautioned about investing federal judges with the power "not only to carry into execution the powers expressly given, but where these are wanting or ambiguously expressed, to supply what is wanting by their own decisions." He wrote that they " will give the sense of every article of the constitution, that may from time to time come before them. And in their decisions they will not confine themselves to any fixed or established rules, but will determine, according to what appears to them, the reason and spirit of the constitution. The opinions of the supreme court, whatever they may be, will have the force of law; because there is no power provided in the constitution, that can correct their errors, or controul their adjudications. From this court there is no appeal. And I conceive the legislature themselves, cannot set aside a judgment of this court, because they are authorised by the constitution to decide in the last resort....

"The judicial power will operate to effect, in the most certain, but yet silent and imperceptible manner, what is evidently the tendency of the constitution: — I mean, an entire subversion of the legislative, executive and judicial powers of the individual states. Every adjudication of the supreme court, on any question that may arise upon the nature and extent of the general government, will affect the limits of the state jurisdiction. In proportion as the former enlarge the exercise of their powers, will that of the latter be restricted." [emphasis added] Again, this is exactly what has happened and is happening today!

Those misinterpreting the Constitution are not the only ones at fault for the problems of today. "Brutus" warned, but nobody listened.

It will be interesting to read more of the Brutus essays and other parts of the Anti-Federalist.

Implications of the end of government

The end of government is the preservation of our rights. Some people agree with this, but argue that the government may take action or pass laws for the purpose of "benefitting society" also. They would say that the public school system, for example, is legitimate because education "benefits society."

The problem with this is that every time the government passes laws that are not to secure our rights, but simply to benefit society, our rights are infringed. In the example of the public school system, the government imposes a heavy tax to fund the schools. This abridges our right to the ownership of property - the government is taking our money without our consent. Rather than fulfilling its purpose of the preservation of our rights, the government is taking away our rights.

The government should stay strictly within its purpose. Therefore, the preservation of our rights - and not societal benefits - should back every law the government makes.

Note that when the government acts according to its purpose, society is benefitted. For example, the government has rightly passed laws banning murder, because murder deprives the victim of his right to life. Banning murder certainly benefits society; however, societal benefits are not and should be the sole backing behind this ban.

The U. S. Constitution

When I was 12 or 13, I read the U. S. Constitution for the first time. I thought I understood it. After all, it seemed pretty straightforward. Since then, however, I've discovered that I actually understood very little of what I had read.

Here are a few of my childish misunderstandings:

• I thought that Congress had only a few, clearly defined powers. (Article I, Section 8)
  
• I thought that the states had the majority of the power, since they had all the power not explicitly granted to Congress. (Amendment 10, 1791)
• I thought that "cruel and unusual punishment" just meant that torture is illegal. (Amendment 8, 1791)
• I thought that the Ninth Amendment meant that all of our rights can't possibly be listed, and that just because they weren't listed in the Bill of Rights doesn't mean that they don't exist.
• I thought that the Fourteenth Amendment clarified the implications of U. S. citizenship, specifically for former slaves.
  
• I thought that the job of the Supreme Court was to decide who is innocent and who is guilty of a certain crime. (Article III, Section 2)
• I thought that the way to learn more about the Constitution and law in this country is to read the Constitution.
  
• I thought that the Constitution is a legally binding document that the federal government simply obeys (Article VII), and that the way to change it is to amend it (Article V).
  

Since then,

• I've learned that Congress's power to "make all Laws which shall be necessary and proper for carrying into Execution the foregoing Powers" means that Congress has the authority to make any and every law. (See Article I, Section 8)
• I've learned that the 10th Amendment is "but a truism" (e.g. see this commentary), because the federal government has all the power it wants.
• I've learned that "cruel and unusual punishment" describes any kind of punishment imaginable.
• I've learned that the Ninth Amendment guarantees rights to homosexuals and other groups not mentioned elsewhere in the Constitution.
  
• I've learned that the Fourteenth Amendment provides for affirmative action, abortion, and just about anything one can think of.
  
• I've learned that the job of the Supreme Court is to decide which laws are "constitutional."
• I've learned that the way to learn more about the Constitution and law in this country is to read Supreme Court precedents, so I'll understand what the Constitution is really saying.
  
• I've learned that the Constitution is a "living" document and that the way to change it is to "interpret" it.

Why is this? Our country is drifting away from our "rule of law" to "rule by men" - exactly what the Founding Fathers fled. We should not need to appeal to what the Supreme Court says the Constitution says; we should appeal to what the Constitution says. Otherwise, we have made the Supreme Court not just the highest court in the land, but the highest law in the land.

(For more on this topic, see John Whitehead's Second American Revolution - a book that I really will get around to finishing someday!)

The end of government

In this post and this post, I've referred to the purpose of government, but my views on that need to be expounded upon for those posts to make sense.

The end of government is the preservation of our rights. By "end," I mean "that which could not be accomplished, or not so well accomplished, by any other thing." (see Plato's Republic, page 32.) This only makes sense; the protection of our rights is the whole reason we have government, and we cannot be guaranteed of our rights unless we have government.

The Founding Fathers recognized this end in the Declaration of Independence:

"We hold these truths to be self-evident, that all men are created equal, that they are endowed by their Creator with certain unalienable Rights, that among these are Life, Liberty and the pursuit of Happiness.--That to secure these rights, Governments are instituted among Men, deriving their just powers from the consent of the governed, --That whenever any Form of Government becomes destructive of these ends, it is the Right of the People to alter or to abolish it, and to institute new Government, laying its foundation on such principles and organizing its powers in such form, as to them shall seem most likely to effect their Safety and Happiness." [emphasis added]

The Founding Fathers borrowed this view directly from John Locke, a key political theorist who was a profound influence on the Founders (Jefferson himself, the author of the Declaration of Independence, cited Locke as one of the men on whose writings "all [the Declaration's] authority rests." - Jefferson, Thomas. The Writings of Thomas Jefferson. Washington, D. C.: The Thomas Jefferson Memorial Association, 1903, 118.) Locke wrote in his Second Treatise of Government (pages 203-204) that

"If man in the state of nature be so free, as has been said; if he be absolute lord of his own person and possessions, equal to the greatest, and subject to nobody, why will he part with his freedom? why will he give up his empire, and subject himself to the dominion and control of any other power? To which it is obvious to answer, that though in the state of nature he hath such a right, yet the enjoyment of it is very uncertain, and constantly exposed to the invasion of others; for all being kings as much as he, every man his equal, and the greater part no strict observers of equity and justice, the enjoyment of the property he has in this state is very unsafe, very unsecure. This makes him willing to quit a condition, which, however free, is full of fears and continual dangers: and it is not without reason, that he seeks out, and is willing to join in society with others, who are already united, or have a mind to unite, for the mutual preservation of their lives, liberties, and estates, which I call by the general name, property.

The great and chief end, therefore, of men's uniting into commonwealths, and putting themselves under government, is the preservation of their property. " [emphasis added]

In other words, men unite themselves under a government for the purpose of securing their rights. The preservation and protection of our rights is the entire purpose of government.

Whenever the government does not uphold this purpose, it acts without authority.

Victimless crimes

Since the government's powers should be limited to interpersonal relationships, the government should not create "victimless crimes."

For example, I do not believe that pornography should be banned. Yes, it exploits women, but the women whom it exploits are choosing to be exploited. Since pornography doesn't infringe upon the rights of others (unlike murder or rape, for example), its harm is not in its effects on relationships between men but its effects on relationships between men and God. The government does not have the authority to make laws relating to a man's relationship with God.

Child pornography is another matter. It exploits children, and children do not have the maturity to choose to be exploited. Child pornography certainly victimizes the child, infringing upon the child's rights, and should therefore be banned.

For the same reason, the government should not abridge our freedom of religion. We have the right to choose how to worship God or whether to worship God. God gives us the choice whether to accept him, and so should the federal government.

Government vs. rights

The government's powers - especially the federal government's powers - should be extremely limited. When they are not limited, they conflict with our rights, one of which is the right to freedom and liberty.

I think (not entirely sure about this yet!) that the government's jurisdiction should be limited to interpersonal relationships. It should NOT concern itself with relationships between men and God. For example, the government should not abridge the freedom of religion.

I also believe that the lawmaker has the responsibility to prove not only that a proposed law will have benefits (e.g. banning murder will result in increased human rights, etc.), but also that the government has the power to make the law ( e.g. the government may ban murder because murder infringes on the rights of the people).

For example, Prohibition had some admittedly beneficial effects: crime rates went down, fewers families were broken, etc. I do not believe, however, that the federal government was justified establishing Prohibition. Banning the sale of alcoholic beverages is simply not something the government is specifically authorized to do, by natural law or logical reasoning (or by the Constitution, but that's another issue). Even the Bible does not condemn any and every use of alcohol!

The government is not automatically entitled to make any law that would have "benefits." Every time it makes a law, it impinges upon our freedoms. It must prove that it is authorized to make a law before it may rightfully do so.