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
By David French • National Review
Every now and then the Ninth Circuit Court of Appeals — arguably the nation’s most progressive federal circuit — can offer up a legal surprise. Yesterday, it gave us a legal shock, when a divided panel of its judges affirmed last year’s federal district-court injunction temporarily blocking enforcement of California’s confiscatory ban on so-called large-capacity magazines.
Under California law, any person who possesses a legally purchased magazine capable of holding more than ten rounds of ammunition must either remove the magazine from the state, sell it to a licensed firearm dealer, or hand it over to law enforcement. Those citizens who retained their magazines after the law went into effect risked a fine or up to one year’s imprisonment in county jail.
The district court’s 66-page opinion was a legal tour-de-force that not only dismantled California’s justifications for the ban, but also reiterated and reinforced the constitutional and historical basis for the right to keep and bear arms. As I wrote last year, this paragraph from the district-court opinion is nearly-perfect:
By Cameron Cawthorne • Washington Free Beacon
Sen. Joe Manchin (D., W.Va.) on Wednesday praised President Donald Trump’s Supreme Court nominee for having “all the right qualities.” But he stopped short of giving a full endorsement, saying he will listen to his constituents about their opinions of the nominee.
Manchin appeared on West Virginia MetroNews, a statewide radio station, where host Hoppy Kercheval asked him whether he was going to to support nominee Brett Kavanaugh.
“Do you have a lean today?” Kercheval asked.
“No, I don’t have a lean. I think he seems to be a very fine person of high Continue reading
Partisanship and Violence in Congress — Not All partisanship Is Bad, but Some partisanship Is Catastrophic
Washington is a city that has long been known for partisanship. Even as respected and honored as he was, George Washington was viciously and unjustly attacked by partisans.
Thomas Paine who helped build support for America’s independence by writing the historic political pamphlet “Common Sense,” accused Washington of corruption and wrote that “the world will be puzzled to decide whether you are an apostate or an impostor; whether you have abandoned good principles, or whether you ever had any.”
Partisans for Thomas Jefferson and John Adams viciously attacked each other with such labels as: atheist, tyrant, coward, fool, hypocrite, and weakling. Jefferson’s allies accused Adams of having a “hideous hermaphroditical character, which has neither the force and firmness of a man, nor the gentleness and sensibility of a woman.” Adam’s partisans called Jefferson “a mean-spirited, low-lived fellow, the son of a half-breed Indian squaw, sired by a Virginia mulatto father.”
By David Harsanyi • The Federalist
It’s odd, isn’t it, that so many of the folks who warn us about the authoritarianism of the GOP also happen to support an array of policies that coerce Americans to do things they don’t want to?
Take, for example, the four reliably liberal Supreme Court justices, all of whom believe it’s OK to compel Americans to pay dues to political organizations they disagree with, to coerce them to say things they abhor, and to compel them to create things that undermine their principles.
For some, myself included, the prospects of a court run by people who ignore the Constitution was the best argument for Donald Trump in 2016. The question was, “What’s scarier, a Trump presidency or a progressive Supreme Court?” I imagine the answer is becoming a bit clearer for many conservatives.
In three cases this term — the rulings Continue reading
By Clifford Humphrey • The Federalist
It is no secret that the United States is a severely divided nation. In fact, division seems to be one thing that unites Americans today. Across the country, citizens disagree on kneeling, bathrooms, guns, and free speech. Californians are so divided they are actually considering splitting up their beloved republic into three separate states.
The important question on matters of disagreement is: Who gets to settle these differences? The answer, of course, is “We the people,” but we are disagreeing more and more about what that phrase even means. This disagreement is based in part on the fundamental distinction between a democracy and a republic.
Our Founders did not believe that the people have a right to enact whatever laws the majority necessarily want, but, rather, that the people have a right to enact whatever laws the people as a whole think are just. That higher aspiration requires Continue reading