According to Chief Justice Roberts, the Constitution makes it easy for presidents to violate the law, but reversing such violations difficult -- especially for their successors.
Suppose President Donald Trump decided to create a nationwide right to carry guns openly. He could declare that he would not enforce federal firearms laws, and that a new “Trump permit” would free any holder of state and local gun-control restrictions.
Even if Trump knew that his scheme lacked legal authority, he could get away with it for the length of his presidency. And, moreover, even if courts declared the permit illegal, his successor would have to keep enforcing the program for another year or two.
That incredible outcome is essentially what happened with the Supreme Court decision last week in Department of Homeland Security v. Regents of the University of California (the latter being my employer, I might add). Regents blocked President Trump’s repeal of the 2012 Deferred Action for Childhood Arrivals (DACA) program, which halted the deportation of aliens brought to the U.S. illegally as children, and a parallel 2014 program that suspended the removal of their parents (DAPA). Until the Trump administration goes through the laborious result of enacting a new regulation to undo DACA and DAPA, approximately 6 million aliens can remain in the U.S. in defiance of federal immigration statutes.
While supporters of broader, more humane immigration policies (among whom I count myself) may have welcomed the result, they may well regret the Court’s disruption of executive power. President Barack Obama could issue his extralegal visa programs for children and their parents aliens by simple executive fiat, according to Chief Justice John Roberts and four liberal Justices (Ruth Bader Ginsburg, Stephen Breyer, Sonia Sotomayor, and Elena Kagan), but President Trump had to pretend the order was legal and use the slow Administrative Procedure Act to reverse them. “Even if it is illegal for DHS to extend work authorization and other benefits to DACA recipients,” Roberts found, DACA “could not be rescinded in full without any consideration whatsoever of a” non-deportation policy other than on the ground of its illegality.
According to Chief Justice Roberts, the Constitution makes it easy for presidents to violate the law, but reversing such violations difficult — especially for their successors.
Such a rule upends the text, structure, and history of the Constitution, which generally prevents the occupants of a branch of government (who are temporary, after all) from binding their successors. The Constitution, for example, contains no system for undoing a statute. When Congress wants to repeal a law, it must pass a new law through the same process of bicameralism (House and Senate approval) and presentment (presidential signature). The Supreme Court effectively repeals past opinions simply by overruling the earlier case, though the Constitution does not expressly provide for such reversals. Brown v. Board of Education famously overruled Plessy v. Ferguson’s rule of separate-but-equal. When a president wants to repeal an executive order, all he need do is issue a new executive order. When agencies want to reverse a regulation, they must resort to the same sluggish method of notice-and-comment rulemaking.
If anything, constitutional law grants presidents the power to reverse the acts of their predecessors even faster. Although Article II of the Constitution requires cabinet officers to undergo both presidential nomination and Senate advice and consent, practices from the earliest years of the Republic as well as Supreme Court precedents recognize the executive right to fire them unilaterally. A president similarly can terminate treaties, as Trump recently did with the Intermediate Nuclear Forces agreement with Russia, even though treaties must also receive Senate approval.
Recognizing a plenary power to reverse previous presidential acts, contrary to the Supreme Court’s DACA rule, comports best with the purposes behind the creation of the executive branch. The Framers created an independent executive branch that could act unilaterally and with dispatch because the president’s swift action was desirable in the execution of his constitutional and statutory responsibilities. They wanted each president to be fully accountable to the electorate for his actions without any diffusion of responsibility. The same reasons that support unitary executive action in the first instance support its potential unilateral reversal. A president may need to reverse his predecessor’s decisions quickly to protect national security or take advantage of a great opportunity.
The Framers’ careful protection against arbitrary government would be turned on its head if one president could insulate his unilateral policies against reversal by a subsequent president — for then the constitutional difficulty of enacting a statutory override would further entrench a tyrannical executive policy against electoral or statutory change.
It is important to understand that this principle applies even more strongly in the case of illegal presidential action. The Constitution vests in the president the responsibility to “take Care that the Laws be faithfully Executed.” The highest form of the law of the land is the Constitution. Under this duty, the president cannot enforce an executive order that violates the Constitution — here, the vesting of the power over immigration in Congress. Upon taking office, for example, President Thomas Jefferson immediately ended all prosecutions under the 1798 Sedition Act, which had made criticism of the government a crime, and pardoned those convicted under it.
This allocation of the power to execute the Constitution to the president reveals the perversity of Chief Justice Roberts’s opinion in Regents. It forces President Trump to enforce an executive program that he believes violates the Constitution and federal immigration law, and hence it forces President Trump to violate the Constitution. This is doubly perverse because Trump supports a legislative solution that would allow DACA and DAPA beneficiaries to remain in the country. Nevertheless, Trump reversed DACA and DAPA because President Obama had no constitutional authority to impose the two policies.
The Obama administration claimed that it could still establish DACA and DAPA as a matter of prosecutorial discretion. The constitutional obligation that presidents enforce the law also includes their right, due to limited resources and time, to set enforcement priorities. Prosecutors cannot bring cases for every violation of every federal law at all times. But Obama’s claim flew in the face of the Constitution by claiming that he could bring the enforcement of a federal law — here the removal provision of the immigration laws — completely down to zero.31
If that were true, President Trump could simply restore the preexisting enforcement levels as a matter of his own exercise of prosecutorial discretion. Each new president’s right to reverse the exercises of executive power by his predecessors means that no level of enforcement can bind any future administrations. If Obama were indeed free to set immigration removal levels to 50 percent of past cases, or even zero, Trump had the constitutional right to restore removals to those that prevailed under the Bush administration.
Trump’s rationale was correct: President Obama had no constitutional authority to refuse to enforce the immigration laws against whole classes of aliens, amounting to 50 percent of the possible removal cases. As the Court in Regents concedes, he had intruded on Congress’s constitutional prerogative to set immigration levels and to establish visa categories. As the lower courts had found, President Obama failed to live up to his constitutional responsibility to take care that the laws are faithfully executed. In such a situation, the Constitution compelled Trump to restore immigration enforcement to pre-DACA and pre-DAPA levels. By ignoring these aspects of the Constitution and presidential power, the Regents Court may have inflicted a harm on the nation that goes far beyond immigration law.
With the anniversary of our independence from Britain just around the corner, the social strife now appearing ubiquitously on social media has many of us questioning what is happening to America. From those whose lineage goes back to the original European settlers to those who earned their citizenship in just the last few years, we’re wondering, some of us, if the nation as we’ve known it can survive.
It can—and it will. We’ve been through worse and come out the better for it. We are not perfect and never have been. We are, however, still what Lincoln called “the last, best hope of earth.”
Are there inequities? Sure, just as there are in any country. Here we have freedoms guaranteed to us by our Founding documents that allow us wide latitude—some would say too wide, these days—to express our concerns about our leaders and about the policies that shape the nation. This is not the case in China, Somalia, Cuba, Venezuela or any of the other dictatorships that many of the young Americans now protesting only know as dots on a globe or listings on Wikipedia. Yet few of them, given the chance, would swap our system of government, the rights we enjoy and the economic realities of living in those countries for life in the United States.
Some are nonetheless cheering on those who’ve chosen violence. Most of us still abhor the rioting and looting and the assaults and murders of police officers and others seeking to keep the peace. We can see no justification for it, no matter how serious the perceived injury might be. That speaks well of the majority. We are not yet the kind of animals those who would bring the entire system crashing down, though some would like to get us there on the fast train.Ads by scrollerads.com
Some of them believe, and they’ve made this abundantly clear, that the social contract has been broken. That the government we have now lacks the consent of the governed and, according to Locke and other Enlightenment philosophers, the people have the right to seek a replacement by any means necessary.
They’re within their rights to think that and to proclaim it. To most of us, though, this is nonsense. And it will continue to be nonsense as long as peaceful means remain available to bring about change in government.
Are we perfect? No, and we never have been. Are we better than every other country? Many would say yes but, to be fair, let’s agree that we at least consistently rank in the top ten. Rather than feel we are inexorably stained by our slaveholding past—a past not unique to this country, and a practice that still exists in other parts of the world—and that there is no way to overcome it, let us celebrate how far we have come. As Independence Day approaches, let us remember how America has consistently led the world, how we have been a haven for the oppressed, how our sons and daughters have given life and limb in the fight against tyranny in many parts of the world and how we remain a beacon to those longing for freedom and as close to a true meritocracy as any nation that has ever existed.
America is the place where you can rise above the circumstances of your birth to accomplish and acquire. It is also where you can fall from great heights, sometimes spectacularly, and lose everything. Elites and establishments do exist in just about every walk of life, but they are more open and democratic here than in most other parts of the world. Meanwhile, we have become the place where, as Dr. Martin Luther King, Jr. said so many years ago, the sons and daughters of former slaves and former slave owners can meet together over the table of brotherhood.
To some, none of that matters. They want to remake America according to what they feel and follow the dictates of largely ill-considered contemporary truths that have failed as governing principles in the other nations that have tried to implement them. They ignore at their peril the eternal truths expressed and refined through thoughtful debate by the Founders who, while not perfect, should be judged by history and by us for the body of their accomplishments and the sum of their lives. “If men were angels,” James Madison said, “no government would be necessary.”
Well, men are not angels and those who conceived and wrote the governing compacts still in force today should be praised for their vision and for their belief that what “this new nation, conceived in liberty and dedicated to the proposition that all men are created equal” had to offer, has to offer, and will have to offer in the future. It is superior to what any other nation on earth at the time could do. Lincoln Steffens was wrong. The future did not work.
Life. Liberty. The pursuit of happiness. The American story is just as much about the ongoing struggle to secure these for everyone, generation after generation, as it is about anything else. Some things have come easier than have others. The struggle endures but shall not end until those objectives have been achieved. Freedom is the aim and always, God willing, shall be.
The United States of America is being tested acutely in the crucible of the COVID-19 emergency. This novel coronavirus outbreak has followed closely at the heels of perhaps the most grievous constitutional crisis in American history. Alternately dubbed “the Russia Collusion” or “the Russia Hoax,” this extremely well organized campaign to delegitimize the 2016 presidential election and its winner Donald J. Trump has been designed to upset the peaceful transfer of executive powers from one administration to the next.
Having started out with a huge bang and having been kept illegally alive for more than three years through the totally baseless Mueller investigation as well as the absurd impeachment proceedings in the House of Representatives, which ended with an embarrassing whimper in the Senate, the attempted coup d’etat by the Democrats against the duly elected President has demonstrated the fragility of the constitutional republic vis-a-vis the nefarious quest of a determined minority for absolute power over the majority.
The only true meaning of the constitutional republic and of its accompanying system of government called democracy is that through the eligible members of the whole society, the majority elects its representatives among those candidates who would govern according to their views, traditions, and morality. Therefore, the objective of democratic elections is to determine the present and future course of a nation, according to the mentality and the ideas of the majority and not to allow a minority to “fundamentally” change, experiment with, or overthrow the practical and spiritual realms of the nation.
On November 8, 2016, the Republican Donald J. Trump beat the Democrat Hillary Rodham Clinton by the electoral margin of 304 to 227. Put it simply, the majority of voters in the majority of states rejected the attempted overthrow of the constitution, its principles, and the Bible-based spiritual order of American society, with the vague notions of duplicitous social justice, fake human rights theories with their multiculturalism and non-existent “white supremacy” lies, economically destructive and baseless global warming hysteria, anti-religious revolution, and the already debunked utopian ideal of Marxism-Leninism-Maoism.
Prior to the 2016 presidential election, in the United States of America, the loser(s) accepted the verdict of the citizenry and organized itself to remain in opposition until the next election in four years. Meanwhile, this opposition labored hard on developing ideas and policies that would meet with the approval of the majority of the electorate. Clearly, constructive opposition has confidence that those ideas and policies are sound enough to win the next presidential election. However, when the opposition does not believe that its ideas and policies are winnable, the only way to gain the coveted political power is to delegitimize, or even to attempt overthrowing the legitimately elected president and his administration. The preferred methods are pseudo-legal, outrightly illegal manipulations with the help of corrupt civil servants, and defamation of character.
The Democrat Party and its representatives have been guilty of all of the above. Moreover, to achieve their illegitimate goals, they have enlisted the unelected and corrupt heads of several intelligence agencies, the equally unelected and corrupt heads of the premier law enforcement agency, the Federal Bureau of Investigation (FBI), as well as the overwhelming majority of the written and electronic media.
In the absence of a constructive opposition, America is devoid of a political middle. What the country has is an extremely radicalized Democrat Party on the proverbial Left, with its presumptive, washed out presidential nominee. On the other side, there is a sitting President fighting for his political future amidst increasingly strong headwinds.
Meanwhile, the victim of this abysmal situation is the United States of America and its citizenry. Judging by the wave of unconstitutional measures under the guise of saving lives at all cost, the Democrat governors and their colleagues in Congress again have been pursuing criminally destructive policies, in order to damage as much as possible President Trump in particular and the Republicans in general. From arbitrary prohibitions to idiotic actions they have been pushing ultrarevolutionary socialist and communist agendas to the detriment of democracy and the rule of law. The most glaring examples have been the violations of the First, Second, Fourth, and Fourteenth Amendments. While selling alcohol and drugs of all kinds as “essential” goods, churches and gun shops have been closed – supposedly for the sake of protecting the health of all Americans. Moreover, the House of Representatives, with its clueless Speaker, has been blackmailing the President and the Senate with her unrealistic economic and financial fantasies, and pursuing vehemently the release of President Trump’s tax returns. To add insult to injury, Representatives Schiff and Nadler have been searching feverishly for new phantoms, which might be grounds to impeach the President again. Finally, former President Barack Obama has shown a new small-minded and vindictive self. Attempting to destroy an American hero just because he hated him, and masterminding a coup d’etat against his successor, are vivid remainders of his true character.
Nobody is perfect. However, President Trump has been fighting against all odds to restore the constitution and the Judeo-Christian ethos of America. On the other side of the aisle, the Democrats have been waging a war against the nation, religion, and family. Their ideas and policies are bad, because they lead to faulty compromises. And bad compromises always end in bottomless vacuums, or hopeless cul-de-sacs. Yet, one could traffic in antithetical ideas but cannot play with contradictory emotions.
Tradition, religious spirituality, respect for the rule of law are the cornerstones of peace and stability in every society. Without those values, no great nation can endure long.
The judge’s temporary restraining order sets the stage in Illinois and perhaps nationally for a legal battle over public health experts’ far-reaching demands for public confinement.
In one of the nation’s first successful legal challenges to mandatory quarantine directives, an Illinois state judge has thrown a wrench into Gov. J.B. Pritzker’s extension of his stay-at-home order until at least May 30.
The judge’s temporary restraining order sets the stage in Illinois and perhaps nationally for a legal battle over public health experts’ far-reaching demands for public confinement against the rising fear about the drastic consequences of a nationwide economic shutdown.
In the case, Downstate Circuit Court Judge Michael McHaney on Monday temporarily restrained Pritzker from enforcing the lockdown order against state Rep. Darren Bailey, a Downstate Republican from tiny rural Xenia. Bailey sued Pritzker for violating a provision of the state Emergency Management Act that allows such drastic closure actions for only 30 days. Because Pritzker originally issued his order on March 8, Pritzker’s authority expired on April 8, Bailey argued.
Bailey said he is “irreparably harmed each day he is subjected to” Pritzker’s executive order. In a statement, he said, “Enough is enough! I filed this lawsuit on behalf of myself and my constituents who are ready to go back to work and resume a normal life.” The judge cited in his order Bailey’s right, in “his liberty interest to be free from Pritzker’s executive order of quarantine in his own home’
The suit follows an argument made earlier made by Northbrook, Illinois attorney Michael Ciesla, who first pointed out on his law firm blog how Pritzker’s extension violated the 30-day provision and that even the governor is required to follow the law. Ciesla’s argumentation was widely ignored while Pritzker, Democratic Chicago Mayor Lori Lightfoot, and the Chicago media scorned or dismissed the suit as a cheap political stunt.
So when McHaney saw enough merit in the lawsuit to issue an injunction against the extension, Pritzker and Lightfoot claimed the action threatens everyone’s health. But they utterly failed to address the heart of the lawsuit—the plain language of the act that clearly lays out the 30-day restriction.
Technically the decision applies only to Bailey, but legal experts agree that the precedent gives weight to any Illinoisan who chooses to challenge the order. Just how seriously Pritzker and Lightfoot take the decision can be measured by the depth of their denunciations.
Pritzker warned that if his order were immediately lifted “people would die” and deaths would “shoot into the thousands by the end of May…. Our hospitals would be full, and very sick people would have nowhere to go.” Lightfoot called the decision “troubling and wrong” and despite it would continue her lockdown policies “to stay the course.”
The “course” is some of the country’s most stringent controls, such as Lightfoot’s closing of parks and other outdoor activities. Pritzker’s new order, effective May 1, would among other things require everyone in Illinois to wear a face mask outdoors, while including some modifications such as opening state parks.
Bailey says he was hoping to push Pritzker into creating a “more realistic plan” reflecting the fact that Illinois is such a diverse region, requiring different approaches for the mostly rural Downstate and metropolitan Chicago. Bailey’s hometown of Xenia has a population of 364. It’s located about 100 miles east of St. Louis in Clay County, which has recorded just two confirmed coronavirus cases and no deaths.
Chicago’s Cook County has 31,953 confirmed cases and 1,347 deaths, but the most feared outcome hasn’t materialized. The city’s sprawling exhibition hall, McCormick Place, had been fitted with 3,000 emergency beds to handle the expected overflow from jammed hospitals, but because of low usage, 2,000 beds are now being removed.
Tensions between the state’s two regions are an historic constant. Most recently those differences show up in a growing movement by Downstaters to separate Chicago from the rest of the state. In this, Illinois is but a microcosm of how heavily infected, urbanized New York and vast swathes of Middle America are vastly different and require tailored approaches in the fight against the coronavirus pandemic. It also reflects the argument—opposed by many liberals—that the fight is best carried on the local level.
Illinois’ regional differences will play out in an expected high-speed appeal of McHaney’s stay. The Downstate appeals court that would hear the case is dominated by Republicans, who, being elected, would not be expected to overturn McHaney’s decision. The Illinois Supreme Court, which could hear the appeal directly, is controlled by Democrats, and considered likely to ultimately back Pritzker.
Still, with growing sentiment that the various shutdown orders have gone too far, with increasing public protests against the restrictions, crushing unemployment, and the unease that epidemiologists and their models are running the country, what’s happening in Illinois could presage even more objections to unprecedented assaults on liberty.
The change would ensure that the business of Congress could go on during crises such as the coronavirus pandemic.
Multiple members of the House have reported positive tests or exposure to the coronavirus, the worst being 45-year-old Utah Democrat Ben McAdams, who was hospitalized with breathing troubles over the weekend. In the Senate, Rand Paul has tested positive, and Amy Klobuchar reported that her husband is hospitalized and receiving oxygen.
It’s time for Congress to follow the rest of the country and work remotely. That means taking unprecedented steps that both houses have resisted for years. While it would be a good thing to expand remote voting capacity permanently, now is not the time to leverage a crisis into long-term reforms; short-term measures that prove workable can be assessed later for their long-term viability. Remote voting should be passed immediately as a short-term emergency measure and reevaluated after the present crisis has passed.
Remote voting could never be a full substitute for the presence of Congress in Washington. Our representatives frequently need to meet with each other and their staffs and receive briefings, many of them involving information that is more securely delivered in person in the Capitol than over any network. Public hearings require physical presence. But much of Congress’s staff work could already be done outside of D.C., and the challenges of security for 535 people voting on bills are not significant. If necessary, each member could still have a (younger, D.C.-resident) staff proxy on site to verify the vote cast. Remote voting would ensure that the business of Congress could go on without large physical gatherings of infected or vulnerable representatives. If it proves workable, it could also lengthen the amount of time members of Congress could spend in their home states and districts without ignoring their core duties.
The need is bipartisan, but it would prevent the vagaries of illness from unsettling the partisan balance of power. President Trump has supported the idea, and Dick Durbin and Rob Portman have proposed a resolution:
Durbin called for establishing “a verifiable technology and procedure so members do not have to be physically present.” “Five of our Senate colleagues were unable to come to the floor of the Senate and vote because they’re in self-quarantine at this moment,” he said. “The numbers could grow to the point it could reach an extreme where there’s a question of an actual quorum on the floor of the Senate.”
Portman and Durbin’s resolution would give the Senate majority and minority leaders joint authority to allow secure remote voting for up to 30 days during emergency situations such as the current pandemic. Under the measure, the Senate could vote to extend the initial authority in additional 30-day increments.
The need in the case of the Senate should be particularly obvious: Five Senators are between the ages of 83 and 86, and more than a quarter of the chamber is age 70 or over. Senate traditionalists such as Mitch McConnell and Roy Blunt have thus far proven resistant, given their hesitance to open broader questions about changing the rules, but they should reconsider given the exigencies of the situation.
The Constitution should not be an insuperable obstacle, although it might preclude either House from going to remote voting without the other. Article I, Sections 4-5 provide:
The Congress shall assemble at least once in every Year, and such Meeting shall be on the first Monday in December, unless they shall by Law appoint a different Day [which they have]. [In each House], a Majority of each shall constitute a Quorum to do Business; but a smaller Number may adjourn from day to day, and may be authorized to compel the Attendance of absent Members, in such Manner, and under such Penalties as each House may provide. Each House may determine the Rules of its Proceedings. . . . Each House shall keep a Journal of its Proceedings, and from time to time publish the same, excepting such Parts as may in their Judgment require Secrecy; and the Yeas and Nays of the Members of either House on any question shall, at the Desire of one fifth of those Present, be entered on the Journal. Neither House, during the Session of Congress, shall, without the Consent of the other, adjourn for more than three days, nor to any other Place than that in which the two Houses shall be sitting.
Obviously, when the Framers wrote the requirements that Congress “assemble” and do so in the same “Place,” and that various rules be determined by those “present,” they anticipated physically assembling in the same location. But nobody in 1787 would have thought that this excludedpresence by telecommunication, as no such thing was possible at the time. The best methods of long-distance communication in America in 1787 were crude tools such as smoke signals. Samuel Morse’s telegraph would not be invented for another half a century; its French predecessor was not publicly demonstrated until 1793. Constitutional interpretation typically tries to apply old rules to new technology by finding analogous Founding-era practices, but there is really no contemporary analogue to being present in a legislative chamber by remote technology. The best answer is instead to leave interpretation of these requirements to the House and Senate themselves.
The Supreme Court, in its 2014 decision in NLRB v. Noel Canning, ruled that President Obama could not make recess appointments during pro forma sessions. Those pro forma sessions, at which no Senate business was conducted, were held precisely to prevent short recesses in the Senate’s calendar from giving Obama an excuse to make recess appointments. Calling short recesses and interrupting them with pro forma sessions were practices unknown at the Founding, when it was not practical for senators to travel to and from the capital in a few days.1
The Court gave strong weight to the Senate’s determination that it was not in recess during the pro forma sessions, notwithstanding the fact that it was transparently engaged in a legalistic interpretation of a “session” in order to thwart the president. The Court stressed “the Constitution’s broad delegation of authority to the Senate to determine how and when to conduct its business”:
The Constitution . . . gives the Senate wide latitude to determine whether and when to have a session, as well as how to conduct the session . . . when the Journal of the Senate indicates that a quorum was present, under a valid Senate rule, at the time the Senate passed a bill, we will not consider an argument that a quorum was not, in fact, present.
The Court emphasized that its deference may not be absolute in every case, but in Noel Canning, it considered the question closed so long as the Senate was sufficiently present to be capable of doing business. If both chambers changed their rules to consider remotely present members to be present and able to vote, that standard would be satisfied.
The business of the nation requires Congress to remain on duty during a crisis such as this one. Changing the rules to ensure the functioning of the national legislature is the responsible thing to do.
As part of its ambitious “1619” inquiry into the legacy of slavery, The New York Times revives false 19th century revisionist history about the American founding.
Across the map of the United States, the borders of Tennessee, Oklahoma, New Mexico, and Arizona draw a distinct line. It’s the 36º30′ line, a remnant of the boundary between free and slave states drawn in 1820. It is a scar across the belly of America, and a vivid symbol of the ways in which slavery still touches nearly every facet of American history.
That pervasive legacy is the subject of a series of articles in The New York Times titled “The 1619 Project.” To cover the history of slavery and its modern effects is certainly a worthy goal, and much of the Project achieves that goal effectively. Khalil Gibran Muhammad’s portrait of the Louisiana sugar industry, for instance, vividly covers a region that its victims considered the worst of all of slavery’s forms. Even better is Nikole Hannah-Jones’s celebration of black-led political movements. She is certainly correct that “without the idealistic, strenuous and patriotic efforts of black Americans, our democracy today would most likely look very different” and “might not be a democracy at all.”
Where the 1619 articles go wrong is in a persistent and off-key theme: an effort to prove that slavery “is the country’s very origin,” that slavery is the source of “nearly everything that has truly made America exceptional,” and that, in Hannah-Jones’s words, the founders “used” “racist ideology” “at the nation’s founding.” In this, the Times steps beyond history and into political polemic—one based on a falsehood and that in an essential way, repudiates the work of countless people of all races, including those Hannah-Jones celebrates, who have believed that what makes America “exceptional” is the proposition that all men are created equal.
For one thing, the idea that, in Hannah-Jones’ words, the “white men” who wrote the Declaration of Independence “did not believe” its words applied to black people is simply false. John Adams, James Madison, George Washington, Thomas Jefferson, and others said at the time that the doctrine of equality rendered slavery anathema. True, Jefferson also wrote the infamous passages suggesting that “the blacks…are inferior to the whites in the endowments both of body and mind,” but he thought even that was irrelevant to the question of slavery’s immorality. “Whatever be their degree of talent,” Jefferson wrote, “it is no measure of their rights. Because Sir Isaac Newton was superior to others in understanding, he was not therefore lord of the person or property of others.”
The myth that America was premised on slavery took off in the 1830s, not the 1770s. That was when John C. Calhoun, Alexander Stephens, George Fitzhugh, and others offered a new vision of America—one that either disregarded the facts of history to portray the founders as white supremacists, or denounced them for not being so. Relatively moderate figures such as Illinois Sen. Stephen Douglas twisted the language of the Declaration to say that the phrase “all men are created equal” actually meant only white men. Abraham Lincoln effectively refuted that in his debates with Douglas. Calhoun was, in a sense, more honest about his abhorrent views; he scorned the Declaration precisely because it made no color distinctions. “There is not a word of truth in it,” wrote Calhoun. People are “in no sense…either free or equal.” Indiana Sen. John Pettit was even more succinct. The Declaration, he said, was “a self-evident lie.”
It was these men—the generation after the founding—who manufactured the myth of American white supremacy. They did so against the opposition of such figures as Lincoln, Charles Sumner, Frederick Douglass, and John Quincy Adams. “From the day of the declaration of independence,” wrote Adams, the “wise rulers of the land” had counseled “to repair the injustice” of slavery, not perpetuate it. “Universal emancipation was the lesson which they had urged upon their contemporaries, and held forth as transcendent and irremissible [sic] duties to their children of the present age.” These opponents of the new white supremacist myth were hardly fringe figures. Lincoln and Douglass were national leaders backed by millions who agreed with their opposition to the white supremacist lie. Adams was a former president. Sumner was nearly assassinated in the Senate for opposing white supremacy. Yet their work is never discussed in the Times articles.
In 1857, Chief Justice Roger Taney sought to make the myth into the law of the land by asserting in Scott v. Sandford that the United States was created as, and could only ever be, a nation for whites. “The right of property in a slave,” he declared, “is distinctly and expressly affirmed in the Constitution.” This was false: the Constitution contains no legal protection for slavery, and doesn’t even use the word. Both Lincoln and Douglass answered Taney by citing the historical record as well as the text of the laws: the founders had called slavery both evil and inconsistent with their principles; they forbade the slave trade and tried to ban it in the territories; nothing in the Declaration or the Constitution established a color line; in fact, when the Constitution was ratified, black Americans were citizens in several states and could even vote. The founders deserved blame for not doing more, but the idea that they were white supremacists, said Douglass, was “a slander upon their memory.”
Lincoln provided the most thorough refutation. There was only one piece of evidence, he observed, ever offered to support the thesis that the Declaration’s authors didn’t mean “all men” when they wrote it: that was the fact that they did not free the slaves on July 4, 1776. Yet there were many other explanations for that which did not prove the Declaration was a lie. Most obviously, some founders may simply have been hypocrites. But that individual failing did not prove that the Declaration excluded non-whites, or that the Constitution guaranteed slavery.
Even some abolitionists embraced the white supremacy legend. William Lloyd Garrison denounced the Constitution because he believed it protected slavery. This, Douglass replied, was false both legally and factually: those who claimed it was pro-slavery had the burden of proof—yet they never offered any. The Constitution’s wording gave it no guarantees and provided plentiful means for abolishing it. In fact, none of its words would have to be changed for Congress to eliminate slavery overnight. It was slavery’s defenders, he argued, not its enemies, who should fear the Constitution—and secession proved him right. Slaveocrats had realized that the Constitution was, in Douglass’s words, “a glorious liberty document,” and they wanted out.
Still, after the war, “Lost Cause” historians rehabilitated the Confederate vision, claiming the Constitution was a racist document, so that the legend remains today. The United States, writes Hannah-Jones, “was founded…as a slavocracy,” and the Constitution “preserved and protected slavery.” This is once more asserted as an uncontroverted fact—and Lincoln’s and Douglass’s refutations of it go unmentioned in the Times.
No doubt Taney would be delighted at this acceptance of his thesis. What accounts for it? The myth of a white supremacist founding has always served the emotional needs of many people. For racists, it offers a rationalization for hatred. For others, it offers a vision of the founders as arch-villains. Some find it comforting to believe that an evil as colossal as slavery could only be manufactured by diabolically perfect men rather than by quotidian politics and the banality of evil. For still others, it provides a new fable of the fall from Eden, attractive because it implies the possibility of a single act of redemption. If evil entered the world at a single time, by a conscious act, maybe it could be reversed by one conscious revolution.
The reality is more complex, more dreadful, and, in some ways, more glorious. After all, slavery was abolished, segregation was overturned, and the struggle today is carried on by people ultimately driven by their commitment to the principle that all men are created equal—the principle articulated at the nation’s birth. It was precisely because millions of Americans have never bought the notion that America was built as a slavocracy—and have had historical grounds for that denial—that they were willing to lay their lives on the line, not only in the 1860s but ever since, to make good on the promissory note of the Declaration.
Their efforts raise the question of what counts as the historical “truth” about the American Dream. A nation’s history, after all, occupies a realm between fact and moral commitments. Like a marriage, a constitution, or an ethical concept like “blame,” it encompasses both what actually happened and the philosophical question of what those happenings mean. Slavery certainly happened—but so, too, did the abolitionist movement and the ratification of the Thirteenth, Fourteenth, and Fifteenth Amendments. The authors of those amendments viewed them not as changing the Constitution, but as rescuing it from Taney and other mythmakers who had tried to pervert it into a white supremacist document.
In fact, it would be more accurate to say that what makes America unique isn’t slavery but the effort to abolish it. Slavery is among the oldest and most ubiquitous of all human institutions; as the Times series’ title indicates, American slavery predated the American Revolution by a century and a half. What’s unique about America is that it alone announced at birth the principle that all men are created equal—and that its people have struggled to realize that principle since then. As a result of their efforts, the Constitution today has much more to do with what happened in 1865 than in 1776, let alone 1619. Nothing could be more worthwhile than learning slavery’s history, and remembering its victims and vanquishers. But to claim that America’s essence is white supremacy is to swallow slavery’s fatal lie.
As usual, Lincoln said it best. When the founders wrote of equality, he explained, they knew they had “no power to confer such a boon” at that instant. But that was not their purpose. Instead, they “set up a standard maxim for free society, which should be familiar to all, and revered by all; constantly looked to, constantly labored for, and even though never perfectly attained, constantly approximated, and thereby constantly spreading and deepening its influence, and augmenting the happiness and value of life to all people of all colors everywhere.” That constant labor, in the generations that followed, is the true source of “nearly everything that has truly made America exceptional.”
This essay is part of a RealClearPolicy series centered on the American Project, an initiative of the Pepperdine School of Public Policy. The project looks to the country’s founding principles to respond to our current cultural and political upheaval.
The Declaration of Independence served a dual function at the momentous occasion of its adoption, July 4, 1776. The first was that it was the issuance of a statement of political independence containing within it a rational defense of our dramatic break with the government of Great Britain and its unaccountable king. The second, however, was the annunciation of the principles animating that declaration. According to the Founders, it was the violation of these principles that justified separation; their defense demanded the birth of a new nation.
These principles are outlined in the document’s most famous line: “We hold these truths to be self-evident, that all men are created equal, that they are endowed with certain unalienable Rights, that among these are Life, Liberty and the pursuit of Happiness.” The rights to life and to liberty suggest the autonomy of the individual, whereas the statement that men are created equal highlights the universal dignity of all. The dynamic tension between these two principles, liberty and equality, underlies the ongoing left-right dialectic that has characterized American politics from the beginning. For this reason, it may be easy to overlook the last phrase in this statement, “the pursuit of Happiness.” It reads to modern eyes, perhaps, like a poetic after thought to the weightier philosophical statements that precede it. Yet it is in the pursuit of happiness that we are called upon to exercise the virtues needed to weave the fabric of a nation.
It is the role of virtue in realizing happiness through community — especially a community of free and equal citizens — that conservatism should remind us of today.
What is virtue? Before offering an answer, it is worth noting that it is a term that exists in our moral vocabulary today largely as an artifact of classical literature and our Christian heritage — rather like a poetical term sapped of substantive meaning. We think of moral questions today predominantly in deontological or consequentialist terms, rather than in terms of the virtues. Deontological ethics holds that an action is right or wrong depending on whether it conforms to some rule or maxim (“It is always wrong to do X,” “It is my duty to do Y.”). Consequentialism, by contrast, holds that we should evaluate an action based on its outcomes or consequences. In the political sphere, we often waver between these two, incompatible approaches to moral questions.
Take just about any debate in the realm of policy. The right to own a firearm or the right to health care is often met with arguments about why such alleged rights may or may not be practical. The right to bear arms makes it too easy for bad actors to buy guns; universal health care is too expensive or will have other harmful consequences, etc. Some oppose abortion on the basis of the right to life for unborn children, whereas opponents object with practical arguments about the difficulty of raising children in certain conditions. These disagreements, however legitimate, leave us speaking conflicting moral languages that offer no path to resolution. More importantly, both moral languages overlook the importance of moral character, which is what yields meaningful happiness and establishes the basis of flourishing community.
The virtues are habits of moral character. In the classical tradition, these include such qualities as fortitude or courage, prudence, temperance, and justice. The Christian tradition adds the “theological virtues:” faith, hope, and charity (love). We might easily add qualities such as honor, nobility, fairness, equanimity, and wisdom (the cornerstone of the good life, according to Aristotle). According to the tradition of virtue ethics, we should aspire to cultivate these habits, which conduce to lives of human flourishing, rather than basing our actions on rules or consequences.
This classical understanding informed the founding of the United States. Though the empirical orientation of the Enlightenment had much to do with setting us on a course away from virtue as the ground of morality, the founding fathers nevertheless recognized the indispensability of moral virtue in securing the project of liberty, representative government, and the pursuit of happiness. As Benjamin Franklin put it: “Only a virtuous people are capable of freedom. As nations become more corrupt and vicious, they have more need of masters.” Or Thomas Jefferson: “A nation as a society forms a moral person, and every member of it is personally responsible for his society.” Or, finally, George Washington: “There is no truth more thoroughly established, than that there exists … an indissoluble union between virtue and happiness.”
This is not to downplay the glaring vices present in American society at the founding. The point is that the Founders were at least minimally aware of the vital role virtue plays in establishing a political society capable of securing individual liberty and the common good. Whence the motivation for John Adams’ saying: “Public virtue cannot exist in a nation without private, and public virtue is the only foundation of republics.”
American society today has reaped the benefits of a prosperous economy aided by a political system that is the legacy of previous generations of Americans bound by more than the pursuit of riches. Indeed, the political liberalism of the Enlightenment has had much to do with the quest for a more egalitarian society in America, rooted in the dignity of the individual. However, the moral basis not merely of the Founding but also many of the great periods of moral progress in our history since the Founding can be traced to a religious consciousness that has stirred popular demands for social reforms, expressed through a moral language preserved by a Christian culture far older than classical liberalism.
Examples of this include the Abolitionist Movement, the Women’s Suffrage Movement and the Civil Rights Movement. William Lloyd Garrison, apart from Frederick Douglass perhaps the most well-remembered figure of the late abolitionist movement, might be described as less orthodoxly Christian than some of his peers in the movement. Yet, he could not have been more Christian in the framing of his moral arguments against slavery and the institutions that abided it, decrying both South and North in the years preceding the Civil War for their complicity:
The reason why the South rules, and the North falls prostrate in servile terror, is simply this: with the South, the preservation of slavery is paramount to all other considerations above party success, denominational unity, pecuniary interest, legal integrity, and constitutional obligation. With the North, the preservation of the Union is placed above all other things-above honor, justice, freedom, integrity of soul, the Decalogue and the Golden Rule-the infinite God himself.
Such language leans heavily upon conceptions of virtue harvested from Christian ethical teachings. Similarly, the sermons of Quaker minister and women’s rights activist Lucretia Mottemphasized the ethical substance of New Testament teachings against dogmatic interpretations that justified the subjugation of women, emphasizing religious behavior over rigidity of doctrine.
The nonviolent philosophy of Martin Luther King, Jr., should be understood as the application not only of the methodology of Gandhi but also the moral substance of the Gospels. “Christian love” demanded more than a belief in equality. One of the most important and distinguishing elements of nonviolence, according to Reverend King, was that it “avoids not only external physical violence but also internal violence of spirit. The nonviolent resister not only refuses to shoot his opponent but he also refuses to hate him. At the center of nonviolence stands the principle of love.” Love was not only the preeminent value but also the preeminent virtue of the Nonviolent Civil Rights Movement. The embrace of love as a virtue required the embrace of attendant virtues such as patience, courage, forgiveness, humility, and the suite of moral attributes that lent such ethical force to the work of King and those who followed his moral path.
If the importance of virtue is evident in great social movements it is also visible in the ideational edifice of America’s long-standing institutions. The United States Armed Forces is not merely as a functional organization that safeguards our national security, it is also, at its best, an institution that models and cultivates in its soldiers many of the virtues that we associate with what is most admirable in the American character. “The Army Values” lists seven key virtues that soldiers are trained to adhere to: loyalty, duty, respect, selfless service, honor, integrity, and personal courage. In a similar way, the judicial oath taken by every judge or justice of the United States requires that they “administer justice without respect to persons, and do equal right to the poor and the rich,” and to do so “faithfully and impartially,” clearly implying the virtues of faithfulness and impartiality as necessary to the moral character of a proper judge or justice. Even the traditional etiquette of reference that attends the addressing of members of congress (‘the honorable senator…’) expresses the hope that our elected officials possess, or should be held accountable to, the virtue of honor.
It may not be an exaggeration to say that virtue alone serves as the enforcer of all social contract and civic obligation. There are practical arguments that may justify the existence of our institutions, and there are rules, more or less reasonable, that might compel certain behavior from individuals or groups. But if the inward motivation to act in accordance with these rules or to seek the common good through participation in these institutions is lacking, what prevents any of us from subverting our institutions and social relationships for our own gain or becoming altogether alienated from them and one another?
The institution of marriage requires its participants to practice the virtues of selflessness and fidelity in order for it to be sustained. To be a proper friend, one must exhibit the qualities of understanding, patience, and helpfulness. To be a good parent, educator, or really anyone in a position of authority, one must be temperate, fair-minded, and balanced. To be a good student, employee, or soldier, one should be humble and coachable. To be a good leader, one ought to have courage, integrity, and, perhaps, even nobility.
Virtue, as opposed to legal compulsion or mere rationality, forms the basis of genuine interpersonal and social trust. The more we are able to see in and demonstrate for each other those habits of character necessary for flourishing, the more we find ourselves able (as both a reflection of our own virtues and those of our fellows) to collaborate with others, bear with each other’s faults, accept each other’s legitimate authority, and refrain from doing one another harm, whether out of fear, contempt or ambition.
Individual virtue breeds communal virtue, and vice versa, making virtue the great nourisher of our social fabric. If virtue seems to be vanishing from our social, political, and cultural spheres — if it is no longer something that we even pretend to demand of our politicians — this may be because virtue is vanishing from our moral language. At a moment when our political discourse is increasingly limited to our commitments to equality or individualism, and the policies they may seem to imply, American conservativism would do well to reintroduce the virtues into our moral vocabulary — those inward qualities of moral character have always formed the basis for our national excellence and our political community.
By the Editors • National Review
In the past two weeks, two different airports have blocked Chick-fil-A from the premises. First, the city council of San Antonio banned the chain because, in the words of councilman Robert Trevino, “everyone should feel welcome when they walk through our airport.” Then, two weeks later, a New York Democratic assemblyman, Sean Ryan, announced that the Buffalo airport food vendor was prohibiting Chick-fil-A from operating in its food court. Ryan was explicit about the reason, declaring in a statement that “the views of Chick-fil-A do not represent our state or the Western New York community.”
The immediate justification for the bans was a ThinkProgress allegation that the Chick-fil-A foundation supported “groups with a record of anti-LGBTQ” discrimination.” ThinkProgress was resurrecting a 2012 controversy over Chick-fil-A contributions to an affiliated foundation that gave grants to conservative Christian groups, including groups that opposed same-sex marriage, and over comments by Chick-fil-A president Dan Cathy supporting the traditional, biblical definition of marriage. There was no allegation that Chick-fil-A discriminated against gay customers or gay employees.
In 2012, a wave of Democratic city officials, including the mayors of Boston and San Francisco, threatened to block Chick-fil-A from opening restaurants in their cities, and Chick-fil-A’s customers responded with Continue reading
By Dan McLaughlin • National Review
The latest enthusiasm from progressive pundits and activists for replacing the American system of self-government is to abolish the Electoral College and choose presidents by national popular vote. As with all such enthusiasms — expanding the Supreme Court, abolishing the filibuster and the Senate itself, lowering the voting age to 16, letting convicted felons and illegal aliens vote, adding D.C. and Puerto Rico as states, automatic voter registration, abolishing voter ID, etc. — the scarcely concealed argument is that changing the rules will help Democrats and progressives win more.
Also as with all such enthusiasms, Democratic presidential contenders have been unable to resist its siren song. Multiple prominent Democratic senators, including Kirsten Gillibrand (N.Y.), Minority Whip Dick Durbin (Ill.), and Dianne Feinstein (Calif.), the ranking Democrat on the Judiciary Committee, are introducing a proposal this week in the Senate to make it happen, the second such proposal by Senate Democrats this month. As radical an idea as this is, its support in high places demands to be taken seriously.
The Electoral College has been with us since the Founding, and in its present form since the election of 1804. Some of the reasons for its creation may be obsolete now, and the original concept of the electors themselves as important actors in the presidential selection process has long since left us. But the fundamental system of electing presidents by 50 simultaneous statewide elections (plus D.C.) rather than a raw national popular vote has long served America well. It isn’t going anywhere, and it shouldn’t.
Uniting the States of America
What would American politics look like without the Electoral College? Changing our current system would unsettle so many of the assumptions and incentives that drive presidential politics that the outcomes could easily be unpredictable. But first, consider the immediate changes. Continue reading
By Sumantra Maitra • The Federalist
During the dying days of the Roman Republic, with effete senators stabbing each other in the back when they were not busy in orgies, Julius Caesar followed the exact trajectory of a Leviathan—what Thomas Hobbes described beautifully hundreds of years later. Caesar, by this time opposed to the Senate, which obstructed his imperial aims, decided to cross the river Rubicon, thereby declaring war on the last vestiges of the craven republic.
After crossing the river, Caesar famously said Alea Eacta Est, or the die is cast. Thus crossing the Rubicon is now considered a revolutionary act that aims to destroy the status quo, structure, and balance, from which there’s no return. The only way forward is through chaos.
The current Democratic presidential frontrunners, with their war cries of Electoral College abolition and reduction of the voting age, signify another crossing the Rubicon moment. That’s because without the Senate, and without the Electoral College, there would be no states in the United States of America. Essentially, there would be no republic anymore. And if history is a good teacher, every time there was direct democracy, it has led to a Caesar—or worse. Continue reading
Senator Elizabeth Warren has joined a growing chorus within the Democratic party in calling for the abolition of the Electoral College. Speaking at a forum in Mississippi on Monday night, Warren said that she hoped to ensure that “every vote matters” and proposed that “the way we can make that happen is that we can have national voting, and that means get rid of the Electoral College.”
Warren’s lofty rhetoric notwithstanding, a large portion of the Democratic party’s present animosity toward the Electoral College is rooted in rank partisanship. Since they watched their supposed “blue wall” evaporate in the small hours of the 2016 presidential election, many Democrats have felt sufficient anger with the system to seek to remake it. This habit has by no means been limited to the Electoral College. Indeed, no sooner has the Democratic party lost control of an institution that it had assumed it would retain in perpetuity than that institution has been denounced as retrograde and unfair. In the past year alone, this impulse has led to calls for the abolition or reinvention of the Senate, the Supreme Court, and more.
Insofar as there does exist a serious argument against the Electoral College, it is increasingly indistinguishable from the broader argument against the role that the states play within the American constitutional order, and thus from the argument against federalism itself. President Reagan liked to remind Americans that, far from serving as regional administrative areas of the nation-state, the states are the essential building blocks of America’s political, legal, and civic life.
In our era of viciously divisive politics, the states are arguably more necessary than they have ever been. Critics of the Electoral College bristle at the insistence that it prevents New York and California from imposing their will on the rest of the country. But the Electoral College guarantees that candidates who seek the only nationally elected office in America must attempt to appeal to as broad a geographic constituency as possible — large states and small, populous and rural — rather than retreating to their preferred pockets and running up the score. The alternative to this arrangement is not less political contention or a reduction in anger; it is more of both.
In addition to protecting the political diversity for which the United States is famous, the Electoral College brings with it a number of practical advantages that are crucial to good government. Under the current system, the result of presidential elections tends to be clear almost immediately — there is no need, for example, to wait three weeks for California to process its ballots; it is nigh-on impossible for voters to return a tie or disputed outcome; and, because presidential elections are, in effect, fifty-one separate elections, accusations of voting fraud and abuse hold less purchase than they would if all franchisees were melted into a single, homogenous blob. The freak occurrence that was Bush v. Gore is often raised as an objection against the status quo. Less attention is paid to the obvious question: What if that recount had been national?
Impressively, Elizabeth Warren’s plan for straight abolition is not the worst reform being touted at the moment. Impatient at the lack of progress that the #Resistance has made in pulling the wiring out of America’s constitutional engine, a handful of states have adopted the “National Popular Vote” plan, which binds their electors to cast their ballots for the candidate who wins a majority of votes nationwide. Until enough states have signed on to tip the balance past 270 — and, indeed, until the inevitable litigation has been concluded — adoption of the NPV will remain purely symbolic. Should it be put into action, however, it would achieve the remarkable feat of removing all of the benefits that the Electoral College provides while preventing the electors of each state from voting for the presidential candidate whom a majority in that state had picked. Who knew that the outsourcing craze would extend to democracy?
The U.S. Constitution is a complex document that, as Whitman might have put it, contains multitudes. At once, it boasts guarantees of democracy and protections against it; hosts an outline for national action, and a blueprint for localism; and serves as a vehicle for the majority, while including guarantees that the most significant decisions must be broadly agreed upon. The Electoral College is one of the many finely tuned institutions within the charter that have ensured stability and continuity in America for more than two centuries. To destroy it in a hail of platitudes, civic ignorance, and old-fashioned political pique would be a disastrous mistake.
By John Yoo & James Phillips • National Review
We now hold the equivalent of yesterday’s supercomputers in our pockets. Communications occur instantly, from encrypted messages to Twitter blasts that reach millions. Entrepreneurs make fortunes by analyzing and harvesting the 2.5 quintillion bytes of data produced each day. Governments search the data to find terrorist networks or launch foreign propaganda. From business to politics, success depends on reading the tea leaves we electronically leave behind with social-media posts, texts and emails, or Google searches.
As inevitably as the weather, the hand of regulation has followed. While using the data for itself, the state seeks to regulate the businesses and individuals that create it. We have only begun to figure out whether the rules of privacy that governed paper records, telephone calls, and the mails will continue to apply, and how, to emails, texts, video clips, and social media. Not only does technology create more data that individuals want to protect; it also expands the government’s ability to search and manipulate. Where the line will fall between new technologies, regulation, and privacy will likely become the greatest legacy of Chief Justice John Roberts’s Supreme Court.
The Court will have the opportunity to correct the mistakes of its past. In the 1950s and ’60s, the Supreme Court under Chief Justice Earl Warren sought to adapt constitutional rules to electronic technologies such as the telephone. The liberal Warren Court ignored the Bill of Rights’ text and original meaning as part of a broader effort to remake the criminal procedure of the Constitution in its own image. We may again be facing a similar revolution, not out of fear of police and prosecutors, but out of unfounded worries about a Big Brother government. How the Roberts Court handles these coming issues will reveal much about how originalist the Court actually is.
In an ideal world, we might expect the political process to make the fundamental choices about the balance between privacy, government power, and the new communication and information technologies. But ever since the Warren Court, the Supreme Court has claimed that the Fourth Amendment gives it a right to set the rules. The text of the Fourth Amendment states:
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.
Scholars and judges generally agree that the Framers of the Fourth Amendment sought to prevent general warrants, which officers of the British Crown had used to search American colonists at any time, for any reason. But during the Warren years, the Justices transformed this ban into a requirement that the government could not conduct a constitutional search without a Fourth Amendment warrant based on probable cause, with a specific description of the persons and places to be searched. In Mapp v. Ohio (1961), the Warren Court extended the notorious exclusionary rule, which excludes from trial any evidence gathered in violation of the Fourth Amendment to all courtrooms throughout the nation. As even the liberal justice Benjamin Cardozo had complained as early as 1926, “the criminal is to go free because the constable has blundered.”
This general rule flies in the face of the text of the Fourth Amendment. Instead of assuming that only searches with warrants satisfy the Constitution, we ought to understand the amendment as composed of two parts: the search-and-seizures clause and the warrants clause. The text of the amendment fundamentally requires reasonable searches. If a search or seizure were reasonable, in the ordinary meaning of the word, then it would be legal, regardless of whether a specific warrant had been issued. Why then the warrant requirement? Such a requirement makes sense if the Framers considered search or seizure supported by a specific, judge-issued warrant to be per se reasonable. A warrant protected constables from lawsuits that, while more common during the Founding, have largely disappeared because of the Court’s immunity doctrines. The amendment recognizes two paths to reasonable, and thus legal, searches and seizures.
To be sure, some originalists defend the Warren Court, in part. They observe that the Pennsylvania and Massachusetts state constitutions contained nearly identical language, with one minor but clarifying difference: The relationship between the two clauses was not an “and” but a “therefore.” This difference would suggest that a specific warrant and reasonableness were one and the same. Further, according to this view, “unreasonable” meant against reason, which meant against the common law. And under the common law at the Founding, a warrant was necessary for a search or seizure unless law enforcement caught someone in the act of committing a felony.
Even if this reading of the Fourth Amendment were correct, the Warren Court made no attempt to base its policymaking on the amendment’s original meaning. Instead, it eagerly sought to impose a regime of judicial supervision over virtually all government searches, even over technologies that would have appeared to be magic to the Framers. No case exemplifies the Court’s approach better than Katz v. United States (1967). In Katz, the Warren Court found that the Fourth Amendment required a warrant to allow the police to place a listening device in a public phone booth. The defendant had used the phone in a public place outside his house, and his call was electronically intangible — the Fourth Amendment protects only tangible things: “persons, houses, papers, and effects.” But the Court found that his conversation fell within a “reasonable expectation of privacy” that was recognized by society. Rather than allowing Congress and the states to decide how much protection to give phone calls or any other electronic means of communication, the justices took for themselves the power to decide what would qualify as privacy.
As they did in other areas we have already examined, the justices assumed the roles of philosopher-kings. How do courts know that society views an expectation of privacy as objectively reasonable? According to Katz, they just do. How will courts determine what society thinks? Opinion polls? And why does the Fourth Amendment expand or contract depending on what society thinks should be private? Katz’s definition of privacy fails not only because judges cannot determine society’s view on privacy (that is, after all, the job of legislatures), but because it is utterly circular. Instead of providing any certainty with clear rules, the federal courts turned themselves into the arbiters of privacy, the definers of the legal scope of every new technology, and the monitors of all police investigations.
Under Chief Justice William Rehnquist, and majorities formed by Reagan and Bush judges, the Supreme Court tried to pare back the Warren Court’s activism. The Rehnquist Court created exceptions for searches conducted under exigent circumstances (such as evidence found while pursuing fleeing felons or protecting the lives of others), in good faith (such as operating under a defective warrant), at random (such as random drug-testing and drunk-driver checkpoints), or in plain view (public spaces, observation on the street). In these decisions, the Rehnquist Court began to recognize that while searches with a warrant were reasonable, not all reasonable searches need a warrant. Some observers believed that the Rehnquist Court might even overturn the exclusionary rule or Katz, but it never took that controversial step.
One of the chief surprises of the Roberts Court is that the justices have turned away from their predecessors’ project of restoring reasonableness as the constitutional touchstone. When faced with the new technologies, a majority of justices have ignored the original understanding of the Fourth Amendment and reverted to the Warren Court’s free-floating approach to privacy and government search. They have placed significant restrictions on the government’s use of new technology for policing and anti-terrorism operations, even as foreign nations escalate their use of cyber weapons to steal valuable data (such as the security and background files of almost every federal employee), hack infrastructure, and interfere with elections. The Court has precipitously plunged into the complexities of technology and privacy, where its competence is not high, instead of allowing the people’s elected representatives to make the fundamental choices.
The early signs of this high-tech activism first emerged under the Rehnquist Court. In Kyllo v. United States (2001), the Court confronted a case where a Department of Interior officer had used a new technology to search for indoor marijuana growers. The officer used a thermal imaging device that could measure the heat emitted by a building, but did not allow agents to see or listen to the activity within the house. In an opinion written by Justice Scalia, an unusual majority composed of Clarence Thomas, David Souter, Ruth Bader Ginsburg, and Stephen Breyer held that the Fourth Amendment prohibited the search, even though past opinions had found that evidence in plain view or in public outside the home did not require a warrant before search. “We think that obtaining by sense-enhancing technology any information regarding the interior of the home that could not otherwise have been obtained without physical ‘intrusion into a constitutionally protected area,’” Scalia wrote, “constitutes a search at least where (as here) the technology in question is not in general public use.” According to the majority, “this assures preservation of that degree of privacy against government that existed when the Fourth Amendment was adopted.” The dissent properly observed that the officer observed something outside the house, much as an officer might hear screams coming from within or witness smoke pouring from a window. But unfortunately, the Court thought it should set the standard for advanced sensor technology, rather than allowing the elected branches to decide — either Congress through legislation or the executive branch via regulation.
Despite its conservative reputation, the Roberts Court picked up where the Rehnquist Court’s Kyllo decision left off. In United States v. Jones (2012), the Court addressed police use of a device that used the Global Positioning System to track a car’s movements. Without getting a warrant, Washington, D.C., police attached a device to a suspected drug dealer’s Jeep that reported its movements 24 hours a day for a month. Writing for the majority, Justice Scalia held that the placement of the device constituted a physical invasion of the car. All of the justices agreed that the GPS monitoring device violated the Fourth Amendment, though some justices believed that shorter time periods might satisfy the Constitution. But the Court’s decision did not persuasively address why the GPS device amounted to an illegal search, while the exact same work conducted by human beings – having police officers conduct round-the-clock surveillance – would not violate the Constitution. In both cases, the tracker or the police officer simply follows the public movements of a suspect’s car. The tracking device only saves time and resources, and even intrudes less on privacy because it would observe only the location of the car and not what happened inside. The Court’s approach only invites more intrusive surveillance, such as deploying an aerial drone, which would never come into physical contact with the car, or even need to use enhanced sensors, to follow a suspect and report its movements instead. It is difficult to believe that the justices would forbid the police the use of night vision, in the way they forbade GPS, in public places to pursue fleeing felons. Police could simply follow a car when it travels on public roads and record video of its movements in real time.
The Roberts Court’s most recent opinion, Carpenter v. United States (2018), might prove its most sweeping. In a 5–4 decision, the chief justice joined the Court’s four liberals in finding that a person had an expectation of privacy in records kept by a telephone company of his cellphone’s location. Dissenting Justices Kennedy, Thomas, Alito, and Gorsuch argued that the third-party exception to the Fourth Amendment meant no warrant was required. Under existing doctrine, and the plain text of the amendment, individuals lose their claim to privacy over records or information that they willingly hand over to a third party. Upon this understanding, the Court has allowed warrantless searches such as “pen registers,” which record dialed telephone numbers, and for business records such as credit-card and financial transactions, because the original owner voluntarily gave the information to someone else. In this case, the owner of the cellphone allows the device to constantly “ping” the wireless cellphone network, which notifies the telephone company of its location. Police used the information to show that the suspects — who had, ironically, sought to rob cellphone stores — were present at the time and place of a series of crimes.
Nevertheless, the Court held that such nonprivate information received the protections of the Fourth Amendment. The Court did not find that the means to gather the information violated the text of the Constitution, but that somehow the data violated the Fourth Amendment because the government had come to have too much information. Chief Justice Roberts concluded that such commercial records still fell within the suspect’s “anticipation of privacy in his physical location” because “the time-stamped data provides an intimate window into a person’s life,” not just now, but well into the past. The problem with Chief Justice Roberts’s approach is that it provides no clear rule about how much information is too much information for the government to have, how courts and police are to decide, or why the Fourth Amendment even places limits on how much knowledge the government can have about its citizens’ public activities. Chief Justice Roberts, for example, might believe that the Fourth Amendment would bar government agencies from examining social media, even though individuals choose to blog and post so that many people can see, or financial data, which we transmit to banks and companies. He inevitably “invites courts to make judgments about policy, not law,” as Justice Thomas wrote in dissent.
These cases demonstrate that the Court, though now composed of a conservative majority appointed by Republican presidents, may still drift in a liberal direction. It is most likely to do so when, as here, it leaves behind the constitutional text and history in favor of judgments — no matter how reasonable or popular — that fall within the province of the elected branches of government. Technological advances will continue to pressure the Court to get creative with the Constitution over the intersection of privacy and law enforcement. So the justices have a choice. They can tread the constitutionally dubious path laid out by the Warren Court and invent whatever doctrine or test they think will be optimal from a policy perspective, per Katz and Carpenter.
Or they can leave that to the nation’s policymakers: Congress and the president. There is precedent for the elected branches making decisions related to the intersection of privacy and law enforcement. In 1968, Congress passed the Omnibus Crime Control and Safe Streets Act, in part as a response to Katz, which was handed down just a year earlier. The act allowed the institution best able to weigh the competing policy interests of privacy and safety — the legislature — to make the balancing determination. The Constitution’s federal structure also encourages states to experiment with different balances of privacy and security. Of course, the text and history of the Constitution provide a floor. But if society wishes to provide greater protection for privacy at the cost of some security, it should make that decision through the same political process that it uses for other public policies.
As technological development continues to accelerate, the Court will have a decision to make. Will it usurp the authority of the people and their representatives to decide how to best move forward in this new world, or will it succumb to the temptation of playing platonic guardians who know better how to navigate the future? Time will tell which path the Court chooses, but the Constitution has an answer, if they choose to consult it.
By Alex Griswold • Washington Free Beacon
In a rare move, Rep. Tulsi Gabbard rebuked Democrats–including a fellow Hawaii Democrat, Sen. Mazie Hirono–for questioning a judicial nominee about his membership in Catholic organizations.
Nebraska attorney and former attorney general candidate Brian Buescher was nominated by President Donald Trump to serve on the state’s U.S. District Court. In written questions, Hirono questioned the Catholic lawyer about his membership in the Knights of Columbus, a Catholic fraternal organization with over two million members that upholds Church teachings on social issues.
“I do not recall if I was aware whether the Knights of Columbus had taken a position on the abortion issue when I joined at the age of eighteen,” Buescher answered at one point. Continue reading
By David French • National Review
The proposed Title IX rules highlight how bad things have become on campus.
The Department of Education has issued its long-awaited proposed regulations reforming sexual-assault adjudications on college campus. Not only will these rules restore basic due process and fairness to college tribunals, but they also — given how basic the changes are — highlight just how ridiculous university kangaroo courts have become.
First and perhaps most important, the rules will not only require colleges to permit cross-examination of witnesses (including the accuser), but will also prohibit universities from relying on the statements of any witness who refuses to submit to cross-examination.
Cross-examination is so fundamental to adversary proceedings that it’s is simply incredible that some universities have been prosecuting and expelling students without permitting the accused’s representative to question his accuser. Continue reading
by Aryssa Damron • The Washington Free Beacon
Ken Dilanian, a reporter for NBC News, tweeted on Monday that the idea of North Dakota and New York having the same amount of senators “has to change” because of the confirmation of Justice Brett Kavanaugh to the Supreme Court.
“It may not happen in our lifetimes, but the idea that North Dakota and New York get the same representation in the Senate has to change,” Dilanian tweeted, linking to a Washington Post article about the confirmation of Kavanaugh. “Senators representing less than half the U.S. are about to confirm a nominee opposed by most Americans”
It may not happen in our lifetimes, but the idea that North Dakota and New York get the same representation in the Senate has to change. “Senators representing less than half the U.S. are about to confirm a nominee opposed by most Americans” https://t.co/DAZWYT9Txg
— Ken Dilanian (@KenDilanianNBC) October 6, 2018