The makers of our Constitution undertook to secure conditions favorable to the pursuit of happiness. They recognized the significance of mans 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.Justice Louis D. Brandeis (1856-1941)
When Justice Louis D. Brandeis referred to the right to privacy as the right to be let alone, it was 1928. He was dissenting in a U.S. Supreme Court opinion called Olmstead v. United States, 277U.S. 438 (1928), in which federal agents tapped the telephone lines of Roy Olmstead and others and recorded their conversations about importing alcohol into the U.S. during Prohibition.
They did so without search warrants.
On the basis of the tapped conversations, Olmstead and his colleagues were convicted of conspiracy to violate federal law.
The Supreme Court upheld their convictions.
The issue in the case was whether the Fourth Amendments prohibition of searches and seizures without a warrant issued by a judge based on probable cause of crime includes surveillance.
When Brandeis dissented in Olmstead, telephones were novel and not in widespread personal use. It would be 39 years before the Supreme Court accepted Brandeis dissent as properly encapsulating the understanding of the Framers when it characterized surveillance as a search.
Stated differently, the language in the Fourth Amendment, which unambiguously prohibits the government from engaging in warrantless searches and seizures, was not interpreted so as to characterize government surveillance as a search until 1967, when the Supreme Court accepted Brandeis rationale.
Since then, it is commonplace that the government needs a warrant to engage in surveillance.
The warrant is a constitutional bulwark against fishing expeditions, and it requires the courts to defer to privacy.
I offer this brief constitutional history so as to address the abuse of the Fourth Amendment, and the consequences of that abuse.
Two weeks ago, the Defense Intelligence Agencyan arm of the Pentagon and one of 16 federal entities that spies on Americans acknowledged publicly that it uses commercial software to monitor the movements and conversations of those on whom it has chosen to spy.
And because it does so without warrants, it spies on whomever it wishes.
It claims that the language of the Fourth Amendment which protects the right of all people to be secure in their persons, houses, papers and effects only restrains law enforcement and does not restrain the balance of the government.
Yet, the whole purpose of the Bill of Rights is to recognize that personal liberty stems from our humanity. When Thomas Jefferson wrote the Declaration of Independence, he referred to our rights to life, liberty and the pursuit of happiness as inalienable from our human nature, and as gifts of the Creator.
The Bill of Rights, too, articulates that our rights are natural. The Ninth Amendment expressly commands that the enumeration of certain rights such as the freedoms of religion, speech and press shall not be construed by any government to deny or disparage other rights retained by the people.
Among the rights retained by the people never given away to the states or the federal government and thus protected by the Ninth Amendment, and since 1967 by the Fourth, is the right to privacy.
The Olmstead decision focused narrowly on whether listening to someones telephone conversations without a warrant is as unconstitutional as rummaging through the persons papers and effects without a warrant.
Brandeis understood that true happiness can only come from the exercise of personal liberty, and James Madison understood this when he wrote the Fourth Amendment.
This understanding, as recognized by the courts today, is that the right to privacy protects intellectual activities, beliefs, thoughts, emotions, sensations, and private communications about them.Who could be happy under a state of surveillance? Privacy is natural there are things we all do that are none of the governments business. Surveillance is totalitarian. It is the manifestation of the tyrants wish to know all about a potential opponent.
The whole purpose of the Bill of Rights is to keep the government at bay off the peoples backs, as Justice William O. Douglas wrote thereby protecting our natural state of freedom so that we can pursue happiness.
The Declaration of Independence underscores, and the Bill of Rights protects, the right to pursue happiness for individuals, not for governments.
Who can be happy while being observed by the government?
A watched person changes behavior and loses liberty on account of being watched.
The liberty to make unfettered choices, the right to shake a metaphorical fist in the tyrants face, the personal power to ignore what the government expects are all dissipated.
A watched person hesitates to exercise freedom.
The more the government gets away with surveillance without warrants, the more people will accept the servitude it brings.
Personal freedom is the unfettered power to exercise natural rights without the approval of the government or the consent of any other person. It is the means to happiness.
Yet, because we live in a society in which we need the governments permission to do nearly anything, is it any wonder that the government wants to know everything about us?
The government that spies continuously has large ears and insatiable eyes.
And on its face there is no smile.
Judge Andrew P. Napolitano, a graduate of Princeton University and the University of Notre Dame Law School, was the youngest life-tenured Superior Court judge in the history of New Jersey. He sat on the bench from 1987 to 1995. He taught constitutional law at Seton Hall Law School for 11 years, and he returned to private practice in 1995. Judge Napolitano began television work in the same year. He is Fox News senior judicial analyst on the Fox News Channel and the Fox Business Network. He is the host of Freedom Watch on the Fox Business Network. Napolitano also lectures nationally on the U.S. Constitution, the rule of law, civil liberties in wartime, and human freedom. He has been published in The New York Times, The Wall Street Journal, the Los Angeles Times, and numerous other publications. He is the author of five books on the U.S. Constitution. Read Judge Andrew P. Napolitanos Reports More Here.
Creators Syndicate Inc.
Originally posted here:
- No-knock search warrants began in Wisconsin, Rep. Myers wants to end them here - Wisconsin Examiner - February 4th, 2021
- Close the Gaps - East Bay Express - February 4th, 2021
- Is Americas Approach to Cannabis Racist? Study Shows Its Worse Than You Think - GreenState - February 4th, 2021
- Federal appeals court allows reporters to sue SWAT officer who tear-gassed them during Ferguson protests - JURIST - February 4th, 2021
- Invoking Scalia, Sotomayor Presses for Broad Fourth Amendment Protections - Reason - October 30th, 2020
- EFF Files Amicus Brief Arguing That Law Enforcement Access to Wi-Fi Derived Location Data Violates the Fourth Amendment - EFF - October 30th, 2020
- Main Points Of The Fourth Amendment To Chinese Patent Law (Approved On October 17, 2020, Effective From June 1, 2021) - Intellectual Property - China... - October 30th, 2020
- Column: Michigan can bring privacy into the 21st century - The Oakland Press - October 30th, 2020
- IMPD dismissed from Dreasjon Reed lawsuit - WTHR - October 30th, 2020
- The Criminal Justice of Amy Coney Barrett - Washington Monthly - October 30th, 2020
- A guide to the statewide constitutional amendments on the ballot in November 2020 - Yellowhammer News - October 30th, 2020
- RUTHS HOSPITALITY GROUP, INC. : Entry into a Material Definitive Agreement, Creation of a Direct Financial Obligation or an Obligation under an... - October 30th, 2020
- Assembly Committee Clears Verrelli & Benson Bill Protecting Employees from Employer Tracking Device Violations - InsiderNJ - October 30th, 2020
- The tyranny of the experts - Leader & Times - October 30th, 2020
- Mike R. Galli is recognized by Continental Who's Who - PRNewswire - October 30th, 2020
- Mail Voting Litigation in 2020, Part II: Submission of Mail-In Ballots - Lawfare - October 30th, 2020
- In its 4th revision to the SEC, Palantir tries to explain what the hell is going on - TechCrunch - September 20th, 2020
- City of Pierre among South Dakota towns ordered to pay a total of $440000 because of forced catheterizations - Drgnews - September 20th, 2020
- Former Torrington officer seeks to have evidence suppressed before trial - Scottsbluff Star Herald - September 20th, 2020
- Council To Have One-Day Session To Learn About Police - The Rhino TImes - September 20th, 2020
- Things to Know Before Your Neighborhood Installs an Automated License Plate Reader - EFF - September 20th, 2020
- Attorney argues Haynes and his brother bribed witness to recant his testimony in 1999 murder case - Kankakee Daily Journal - September 20th, 2020
- Justice Ruth Bader Ginsburgs Lasting Impact on U.S. Traffic Laws - The Art of Gears - September 20th, 2020
- Editorial, August 10, 2020: Your cellphone might be "Big Brother" - Richmond.com - August 10th, 2020
- Legal Brief: Surveillance and the Fourth Amendment - SecurityInfoWatch - August 10th, 2020
- Common Ways to Fight Against a Drug Possession Charge - Student Assembly of the State University of New York - August 10th, 2020
- Trump Judge Casts Deciding Vote to Grant Qualified Immunity on First Amendment Retaliation Claim: Confirmed Judges, Confirmed Fears - People For the... - August 10th, 2020
- Did Judge Reeves Reach the Correct Result in Jamison v. McClendon? - Reason - August 10th, 2020
- The Police Lie. All the Time. Can Anything Stop Them? - Slate - August 10th, 2020
- The Court of Justice of the European Union in Schrems II: The impact of GDPR on data flows and national security - Brookings Institution - August 10th, 2020
- Calls for police reform and racial justice spur a flurry of resolutions before the ABA House - ABA Journal - August 10th, 2020
- Reporters Committee amicus brief in Alasaad v. Wolf - Reporters Committee for Freedom of the Press - August 8th, 2020
- Meet the Judge Who Thinks a Black Man Walking Around Is a Crime - Rewire.News - August 8th, 2020
- Who will police Springfields cops? - The Boston Globe - August 8th, 2020
- 'Defund the police' is not a real reform strategy - The Maine Wire - August 8th, 2020
- Assessing Indias obsession with data localisation - Deccan Herald - August 8th, 2020
- How 9/11 and the US Civil War provided the framework for federal agents in Portland - News@Northeastern - August 7th, 2020
- Senators Graham And Blumenthal Can't Even 'Earn' The EARN IT Act: Looking To Sneak Vote Through Without Debate - Techdirt - August 6th, 2020
- The Constitutional Case Against Trumps Use of the Department of Homeland Security - The New Yorker - August 6th, 2020
- 'Trump's Troops Are Breaking the Law and Creating Chaos' - FAIR - August 6th, 2020
- Portland demonstrates that government spying on citizens has become commonplace, and easy - Washington Times - August 6th, 2020
- Plainclothes NYC police grab protester and throw her into unmarked car - WSWS - August 6th, 2020
- Majority of Kingston aldermen view Kingstonian project tax pact favorably, with conditions - The Daily Freeman - August 4th, 2020
- Officers on the street without ID or insignia is dangerous - News-Press Now - August 4th, 2020
- "It's the decent thing to do" - News - Fowler Tribune - August 4th, 2020
- What would the Founding Fathers do? - Smoky Mountain News - August 4th, 2020
- How the president became the deporter in chief. - Slate - August 3rd, 2020
- Want To Reform The Police? Get Rid Of Qualified Immunity - WBUR - August 3rd, 2020
- Who is Zane James, why were his brother and father detained by police in Cottonwood Heights protest? - MEAWW - August 3rd, 2020
- Unpacking DHS's Troubling Explanation of the Portland Van Video - Lawfare - August 1st, 2020
- Capitol Hill grilling of tech CEOs highlights expansion of 'geofence warrants' - WRAL.com - August 1st, 2020
- R Sikoryaks latest project is a word-for-word adaptation of the U.S. Constitution - Boing Boing - August 1st, 2020
- FBI bulletin exposes another crack in ELD mandate - Land Line - Land Line Media - August 1st, 2020
- Analysis: Is Trump stretching the law to deploy federal police power in cities? - wenatcheeworld.com - July 31st, 2020
- NRA and Tea Party: Where are you now? - Greensboro News & Record - July 31st, 2020
- Fourth Amendment | United States Constitution | Britannica - July 30th, 2020
- Fourth Amendment - the Text, Origins, and Meaning - July 30th, 2020
- "It's the decent thing to do" - News - Pueblo Chieftain - July 30th, 2020
- Trump Judge Casts the Deciding Vote to Reverse District Court Ruling to Suppress Evidence Obtained in Violation of the Fourth Amendment: Confirmed... - July 29th, 2020
- Trump Judge Casts the Deciding Vote to Give Qualified Immunity to Officers Who Violated Fourth Amendment: Confirmed Judges, Confirmed Fears - People... - July 29th, 2020
- How does the Fourth Amendment apply to my child while at school? - Lawyers.com Blog - July 29th, 2020
- Ga. voters will decide thorny 'sovereign immunity' issue this fall - Georgia Recorder - July 29th, 2020
- Shot Twice in the Back: A Case Tests the Fleeing Felon Defense - The New York Times - July 29th, 2020
- Wronged by the Police? How to Defend Your Rights - Legal Reader - July 29th, 2020
- The innocents at home, anti-mask tales of purity - Greensburg Daily News - July 29th, 2020
- Someone who cared about safe cities would try to bring calm to chaos. Trump is doing the opposite to bolster his law-and-order reelection campaign. -... - July 29th, 2020
- Here's Why Cities Won't Be Able to Stop Trump's Secret Police - VICE - July 29th, 2020
- Radio Diary: A Harvard Law Professor Explains Why Federal Officers' Tactics In Portland Are Unlawful - WBUR - July 26th, 2020
- Two DHS Officials Apparently Just Admitted Their Troops Have Been Violating the Constitution - Law & Crime - July 26th, 2020
- John Krull: The innocents at home, anti-mask tales of purity - Terre Haute Tribune Star - July 26th, 2020
- Protester in Portland sues Trump for 'conspiracy to violate the U.S. Constitution' after alleged attack by feds - Pamplin Media Group - July 26th, 2020
- The Federal Coup to Overthrow the States and Nix the 10th Amendment Is Underway - River Cities Reader - July 26th, 2020
- LETTERS TO THE - Central Wisconsin News - Tribune Phonograph - July 26th, 2020
- The Majority of Americans Oppose Qualified Immunity. Where Is Congress? - Reason - July 26th, 2020
- Oregon sues US agencies over protest arrests; what gave feds authority to intervene? - ABA Journal - July 26th, 2020
- Can use of force restrictions change police behavior? Heres what we know - PBS NewsHour - July 26th, 2020
- Judge refuses to dismiss claims Balch Springs police violated rights of murdered teen Jordan Edwards - The Dallas Morning News - July 25th, 2020
- East Bay Homeless Living On Caltrans Property May Be Entitled To Cash - KALW - July 25th, 2020
- As journalism jobs decrease, the future of the discipline might depend on general education - Poynter - July 25th, 2020
- Trenton cop found a flask inside a councilwoman's car after crash, tried covering it up - The Trentonian - July 25th, 2020