Geoffrey R. Stone's Blog, page 9

États-Unis: Le mariage pour les couples de même sexe, c'est maintenant

ÉTATS-UNIS - Qu'est-ce que la Cour Suprême a changé avec sa décision en faveur du mariage pour les couples de même sexe?



Premièrement, avec une décision adoptée à cinq contre quatre, la Cour a déclaré le Defense of Marriage Act (loi fédérale pour la défense du mariage, ndlr) comme étant inconstitutionnel. Pour faire ce choix, le juge Kennedy -- qui a rendu l'avis de la Cour public -- a déclaré s'être intéressé au fait que cette loi était une loi fédérale qui intervenait sur un sujet, le mariage, traditionnellement géré par les états.



Ce dernier a donc été clair: même si le Doma (Defense of Marriage Act) est inconstitutionnel cela ne signifie pas pour autant qu'une loi d'état interdisant aux couples de même sexe de se marier est, elle aussi, inconstitutionnelle. Un état, d'après le juge, peut revendiquer des intérêts légitimes à définir le mariage autrement que le gouvernement fédéral.



Néanmoins, en invalidant le Doma, le juge Kennedy s'est adressé avec sympathie et passion à celles et ceux qui souhaitaient obtenir le droit de se marier. Voici quelques extraits du verdict de la Cour écrit par ses soins:

"Jusqu'à récemment, de nombreux citoyens n'avaient même pas envisagé la possibilité que deux personnes du même sexe puissent espérer avoir le même statut et la même dignité qu'un homme et une femme légalement mariés. Que le mariage se fasse entre un homme et une femme était considéré sans aucun doute comme étant essentiel à la définition même de ce terme de 'mariage' mais aussi à son rôle et sa fonction dans l'histoire de la civilisation. Cette croyance, pour nombre de ceux qui l'ont partagée, a été encore plus chérie et adulée quand elle a été remise en question. Pour d'autres, cela a été le début de nouvelles perspectives, de nouvelles possibilités.




Lentement, puis plus rapidement, les lois de New York ont fini par reconnaître l'urgence pour les couples de même sexe qui voulaient affirmer leur engagement mutuel devant leurs enfants, leur famille, leurs amis et leur communauté. Cet état a donc modifié ses lois pour ouvrir le mariage aux couples de même sexe. New York, tout comme 11 autres états et le district de Columbia -- à l'heure où cet avis est écrit -- ont décidé que les couples de même sexe devaient avoir le droit de se marier, de vivre avec fierté leur union à l'instar des autres personnes mariées.



Le Defense of Marriage Act cherche à nuire à ces citoyens que New York cherche à protéger. Dans ce sens, cette loi viole les principes de la sécurité juridique et de la protection égale applicable au gouvernement fédéral. Quand New York a adopté une loi autorisant le mariage pour les couples de même sexe, la ville a cherché à enrayer l'inégalité. Un objectif que le Doma empêche d'atteindre, son effet principal étant d'identifier une partie des mariages contractés puis de les rendre inégaux.



Le Doma porte atteinte à la signification publique et privée des mariages entre personnes de même sexe célébrés par les états car il annonce à ces gens, et au monde entier, que leur mariage initialement légal ne mérite pas d'être reconnu au niveau fédéral. Cela humilie ces couples, dont les choix sexuels et moraux sont protégés par la Constitution, et cela humilie les dizaines de milliers d'enfants élevés par ces couples.



Cette loi ne peut être valide car elle n'a pas d'autre objectif majeur que celui de dénigrer et de nuire à ceux qu'un état, grâce à ses lois régissant le mariage, cherche à protéger individuellement et dignement."

Les quatre juges conservateurs -- Roberts, Scalia, Thomas et Alito -- se sont opposé à cette décision. D'après eux, le Doma et les lois d'état interdisant aux couples de même sexe de se marier sont manifestement constitutionnelles. D'après eux, le sujet du mariage pour les couples homosexuels n'est pas une question constitutionnelle sérieuse. Voici un extrait représentatif du point de vue exprimé par le juge Scalia:

"Peu de controverses publiques touchent une institution aussi centrale dans la vie de tous et peu de controverses inspirent de telles passions de la part de gens honnêtes, quel que soit leur point de vue. Peu de controverses publiques démontreront si bien la beauté de ce que nos pères fondateurs nous ont offert, un cadeau que la Cour met aujourd'hui au clou pour s'acheter une présence sous le feu des projecteurs: un système de gouvernement qui nous permet de nous diriger nous-même. Nous nous sommes peut-être couverts d'honneur aujourd'hui en promettant aux partisans et aux opposants qu'il leur appartenait de trouver une solution et que nous respecterions leur choix. Nous avons peut-être laissé le peuple décider. Mais cela, la majorité ne le fera pas.



Certains se réjouiront de la décision prise aujourd'hui, d'autres la regretteront. C'est le lot de toute polémique importante aux yeux d'un grand nombre. Mais la Cour s'est moquée des deux camps en volant aux partisans une honnête victoire et en volant aux opposants la paix qui suit la défaite. Les deux camps méritaient mieux de notre part. Je fais dissidence."

Pour le juge Scalia, le point de vue du juge Kennedy est "stupéfiant", "infondé", "autoritaire", "déraisonnable", "maladroit", "erroné" et "humiliant pour la Cour en tant qu'institution".



La position adoptée par ces quatre juges opposés à la décision est profondément ironique (certains diront même hypocrite) lorsque l'on sait que ces derniers ont répété maintes fois vouloir faire preuve d'un langage tout en retenue au cours de ce débat. Après tout, ce sont les quatre mêmes juges qui ont déclaré le Voting Rights Act inconstitutionnel, qui ont considéré que la discrimination positive était inconstitutionnelle, qui ont décrété les lois en faveur du contrôle des armes comme étant inconstitutionnelles et qui soutenu que la loi limitant les financements politiques par des entreprises était inconstitutionnelle.



Lors de ces débats, il n'a jamais été question de "retenue". Il n'a jamais été question de respecter la décision du "peuple". Sur ces sujets, le "peuple" a débattu et trouvé des solutions -- pas des solutions que Roberts, Scalia, Thomas et Alito étaient prêts à "respecter". Heureusement qu'ils se "couvrent d'honneur"...



Deuxièmement, la Cour n'a pas décidé de la constitutionnalité de la Proposition 8. Dans une autre décision à cinq contre quatre, les juges ont plutôt argumenté que cette affaire n'avait pas été correctement présentée devant la Cour.



Troisièmement, que peut-on attendre de la Cour sur ce type de sujet à l'avenir? Un état peut-il constitutionnellement refuser aux couples de même sexe de se marier? C'est là, bien évidemment, la question principale. Comme je l'ai déjà dit, les juges Robert, Scalia, Thomas et Alito ont d'ores et déjà répondu à la question. En votant en faveur du maintien du Doma, ils ont clairement fait comprendre que, d'après eux, ce problème n'était pas constitutionnel. C'est une question qui regarde le "peuple". Pour eux, la garantie constitutionnelle d'une "protection égale" n'est pas enfreinte par le refus d'un état d'accorder aux gays et lesbiennes le droit de se marier. Comme le juge Scalia l'a dit sans ménagement, d'après lui "la Constitution n'interdit pas au gouvernement d'imposer des normes morales et sexuelles traditionnelles". Un point c'est tout.



Pour ce qui est des cinq autres juges -- Kennedy, Ginsburg, Breyer, Sotomayor et Kagan -- seul le temps nous renseignera sur leur position. Le langage utilisé dans la décision écrite par le juge Kennedy sous-entend sa compréhension de la profonde injustice qui réside dans le fait d'interdire aux couples de même sexe de se marier. Mais le juge Kennedy a par ailleurs été très clair en annonçant que la Cour ne se pencherait pas sur cette question immédiatement.



Je pense que ces cinq juges vont lentement, mais surement, adopter cette position -- qui est sans aucun doute la bonne. Qu'un état puisse interdire aux couples de même sexe de se marier enfreint totalement la garantie constitutionnelle qu'aucun état ne peut refuser à qui que ce soit "une protection égale par la loi".



Autre certitude, étant donné que la majorité penche de plus en plus vers ce type d'argumentation,: furieux, les quatre juges conservateurs vont continuer à piquer de grosses colères.

Same-Sex Marriage as of... Now

What did the Supreme Court do in its decisions on same-sex marriage?



First, in a five-to-four decision, the Court, in an opinion by Justice Kennedy, held that the federal Defense of Marriage Act is unconstitutional. In reaching this result, Justice Kennedy emphasized that he was focusing on the peculiarity that DOMA is a federal law that is making judgments about what is traditionally a matter of state concern -- marriage.



He therefore made clear that although DOMA is unconstitutional, that does not necessarily mean that a state law that denies same sex couples the freedom to marry is also unconstitutional. A state, in Justice Kennedy's view, can assert legitimate interests in defining the parameters of marriage that are beyond the purview of the federal government.



Nonetheless, in invalidating DOMA, Justice Kennedy wrote sympathetically and passionately about those who seek the right to marry. Here a few excerpts from his opinion for the Court:



Until recent years, many citizens had not even considered the possibility that two persons of the same sex might aspire to occupy the same status and dignity as that of a man and woman in lawful marriage. For marriage between a man and a woman no doubt had been thought of by most people as essential to the very definition of that term and to its role and function throughout the history of civilization. That belief, for many who long have held it, became even more urgent, more cherished when challenged. For others, however, came the beginnings of a new perspective, a new insight.



Slowly at first and then in rapid course, the laws of New York came to acknowledge the urgency of this issue for same-sex couples who wanted to affirm their commitment to one another before their children, their family, their friends, and their community. And so New York amended its marriage laws to permit same-sex marriage. New York, in common with, as of this writing, eleven other States and the District of Columbia, decided that same-sex couples should have the right to marry and so live with pride in themselves and their union and in a status of equality with all other married persons.



DOMA seeks to injure the very class New York seeks to protect. By doing so it violates basic due process and equal protection principles applicable to the Federal Government. When New York adopted a law to permit same-sex marriage, it sought to eliminate inequality; but DOMA frustrates that objective. DOMA's principal effect is to identify a subset of state-sanctioned marriages and make them unequal.



DOMA undermines both the public and private significance of state sanctioned same-sex marriages; for it tells those couples, and all the world, that their otherwise valid marriages are unworthy of federal recognition. This demeans the couple, whose moral and sexual choices the Constitution protects, and it humiliates tens of thousands of children now being raised by same-sex couples.



DOMA is invalid, for no legitimate purpose overcomes the purpose and effect to disparage and to injure those whom the State, by its marriage laws, sought to protect in personhood and dignity.



The four conservative justices -- Roberts, Scalia, Thomas and Alito -- dissented. In their view, both DOMA and state laws denying same sex couples the freedom to marry are clearly and unequivocally constitutional. In their view, the issue of same-sex marriage is not a serious constitutional question. Here is representative excerpt from Justice Scalia's dissenting opinion:



Few public controversies touch an institution so central to the lives of so many, and few inspire such attendant passion by good people on all sides. Few public controversies will ever demonstrate so vividly the beauty of what our Framers gave us, a gift the Court pawns today to buy its stolen moment in the spotlight: a system of government that permits us to rule ourselves. We might have covered ourselves with honor today, by promising all sides of this debate that it was theirs to settle and that we would respect their resolution. We might have let the People decide. But that the majority will not do.



Some will rejoice in today's decision, and some will despair at it; that is the nature of a controversy that matters so much to so many. But the Court has cheated both sides, robbing the winners of an honest victory, and the losers of the peace that comes from a fair defeat. We owed both of them better. I dissent.



In the course of his opinion, Justice Scalia characterized Justice Kennedy's opinion as "jaw-dropping," "rootless," "high-handed," "unreasoned," "overcooked," "clumsy," "untrue," and "demeaning of the Court as an institution."



There is a deep and disturbing irony (one might say hypocrisy) in the position of the four dissenters, who on the issue of same sex marriage repeatedly and emphatically invoked the language of "judicial restraint." These are, after all, the same four justices who just held the Voting Rights Act unconstitutional, who just (once again) held affirmative action unconstitutional, who held gun control laws unconstitutional, and who held laws restricting political expenditures by corporations unconstitutional.



On those issues, there was no talk from these four justices of "judicial restraint." There was no talk of respecting the judgments of "the People." In those situations "the People" debated and resolved the issues -just not in a way that Roberts, Scalia, Thomas and Alito were prepared to "respect." So much for justices covering themselves with "honor."



Second, the Court did not decide on the constitutionality of Proposition 8. Rather, in another five-to-four decision, the justices held that that issue was not properly before the Court.



Third, what can we expect from the Court on this issue in the future? Can a state constitutionally refused to allow same-sex couples to marry? This is, of course, the most fundamental issue. As I already noted, Chief Justice Roberts and Justices Scalia, Thomas and Alito have squarely answered that question. In voting to uphold DOMA, they made clear that, in their view, this is not a constitutional question -- it is a matter for "the People" to sort out for themselves. In their view, the constitutional guarantee of "equal protection of the laws" is not violated by a state's refusal to allow gays and lesbians to marry. As Justice Scalia rather bluntly put the point, in his view "the Constitution does not forbid the government to enforce traditional moral and sexual norms." And that's the end of that.



For the other five justices, however -- Kennedy, Ginsburg, Breyer, Sotomayor and Kagan -- only time will tell. Much of the language in Justice Kennedy's opinion implies a deep understanding of the profound injustice of denying same-sex couples the freedom to marry. But Justice Kennedy also made clear that the Court was not deciding that issue now.



My guess is that these five justices will move slowly, but irresistibly, towards that -- undoubtedly correct -- resolution. For a state to deny same-sex couples the freedom to marry plainly violates the constitutional guarantee that no state shall deny to any person "the equal protection of the laws."



The other thing that is certain is that, as majority gradually works its way to that conclusion, the Court's four conservative justices will continue to throw ever-more furious tantrums of outrage.

Affirmative Action and the Future

What follows is a condensed version of a statement by a group of constitutional scholars offering an explanation and assessment of the Supreme Court's decision on affirmative action in Monday's decision in Fisher v. University of Texas at Austin:



The U.S. Supreme Court's decision in Fisher v. University of Texasreaffirms thirty-five years of precedent upholding the compelling interest in educational diversity in higher education, and clarifies the legal standards that courts and educational institutions must follow in order to comply with the Constitution.



Consistent with the Court's previous rulings, the Court in Fisher upheld the value of diversity in promoting important educational benefits, in addressing racial isolation and stereotypes, and in preparing students for leadership in a diverse society. At the same time, the Court reinforced its earlier rulings that university admissions policies must be narrowly tailored and necessary to advance the compelling interest in diversity.



The Court's opinion in Fisher reaffirmed its 2003 decision in Grutter v. Bollinger, in which the Court concluded that the promotion of diversity in higher education is compelling: "We have repeatedly acknowledged the overriding importance of preparing students for work and citizenship, describing education as pivotal to 'sustaining our political and cultural heritage' with a fundamental role in maintaining the fabric of society. . . . For this reason, the diffusion of knowledge and opportunity through public institutions of higher education must be accessible to all individuals regardless of race or ethnicity." Moreover, as the Court stated in Grutter, higher education "must be inclusive of talented and qualified individuals of every race and ethnicity, so that all members of our heterogeneous society may participate in the educational institutions that provide the training and education necessary to succeed in America."



At the same time, the Court in Fisher clarified the standard that courts must apply in determining whether the means colleges employ to pursue diversity satisfy the Constitution. The Court disagreed with the lower court's assumption that the university's "serious, good faith consideration of workable race-neutral alternatives" was sufficient to justify the consideration of race in university admissions. Rather, academic institutions must demonstrate "that available, workable race-neutral alternatives do not suffice" to achieve their objectives.



The Court in Fisher emphasized that courts must closely scrutinize university admissions plans to determine that the university has fully exhausted race-neutral means of achieving diversity before resorting to race-conscious policies. Because the lower courts misinterpreted the Grutter standards by allowing too much deference to the University of Texas's judgment about the need for a race-conscious policy, it remanded the case to the lower courts to evaluate the evidence under the correct legal standard. The Court also clarified that the lower courts must determine that an admissions process works in a way that each applicant is evaluated as an individual and that race or ethnicity is not a defining feature of the application.



The decision in Fisher, like the 2003 ruling in Grutter, clearly rejects a constitutional requirement of an absolute race-blind approach to higher education admissions. Admissions programs that consider race as one of many factors in the context of an individualized consideration of all applicants can clearly pass constitutional review if they are shown to be necessary to promote diversity.



In sum, Fisher makes clear that promoting diversity in higher education can justify race-conscious admissions policies when they are carefully designed and consider race only as part of a flexible and individualized review of all applicants. There is nothing in this opinion that should lead universities to abandon affirmative action. We encourage universities to more fully document the factual necessity of their plans and the reasons why some limited consideration of race in a holistic review process is the only practical way to achieve the diversity they think necessary to serve compelling educational interests. Such a showing should not unduly burden universities or undermine their efforts to achieve diversity.



Erwin Chemerinsky

Raymond Pryke Professor of First Amendment Law

Founding Dean and Distinguished Professor of Law

UCI School of Law



Drew Days III

Alfred M. Rankin Professor of Law

Yale Law School



Martha Minow

Morgan and Helen Chu Dean and Professor of Law

Harvard Law School



Rachel Moran

Dean and Michael J. Connell Distinguished Professor of Law

UCLA School of Law



James Ryan

William L. Matheson & Robert M. Morgenthau Distinguished Professor of Law

University of Virginia School of Law



Theodore M. Shaw

Professor of Professional Practice

Columbia University School of Law



Geoffrey Stone

Edward H. Levi Distinguished Service Professor

University of Chicago School of Law



Laurence H. Tribe

Carl M. Loeb University Professor and Professor of Constitutional Law

Harvard Law School



For the full version of the Statement, see http://civilrightsproject.ucla.edu/le...

Edward Snowden: "Hero or Traitor"?

I was amused this evening to catch a glimpse of a CNN show asking this question, as if either characterization is correct. In my judgment, based on what I know from the media thus far, Snowden is neither a hero nor a traitor, but he is most certainly a criminal who deserves serious punishment.



I say this as someone who believes strongly in government transparency, but even more strongly in the orderly rule of law. Snowden knowingly accepted a position of trust in his relation to the government. He did not have to accept his job, but he did. A clear condition of that job was his voluntary agreement not to disclose any classified information - that is, information the disclosure of which could reasonably endanger the security of the nation.



The government cannot always attach conditions to employment. For example, it cannot constitutionally require its employees to agree never to criticize the president or never to get an abortion or never to invoke their rights under the Fourth Amendment. But it is well-settled that the government can require its employees to agree to some conditions, and one of them is not to disclose classified information.



As the Supreme Court held in Snepp v. United States in 1980, not only can government employees constitutionally be required to agree not to disclose classified information, but they can even be required to agree, as a condition of employment, not to publish "any information or material relating to . . . intelligence activities" even after they leave the government service without "specific prior approval." As the Court emphasized, an employee's disclosure of "material relating to intelligence activities can be detrimental to vital national interests."



But what if the employee decides, in his own wisdom, that some classified information doesn't need to be classified or that it would be good for the public to know the classified information? Should the employee be allowed to make that judgment? Merely to state the question is to answer it. There is no reason on earth why an individual government employee should have the authority, on his own say so, to override the judgment of the elected representatives of the American people and to decide for the nation that classified information should be disclosed to friends and enemies alike. Such an act is a complete usurpation of the rule of law.



Now, this is not to say that there might not be situations in which it would be in the national interest for certain classified information to be disclosed to the public. It is easy to think of situations in which the decision to classify certain information is misguided, corrupt and dangerous to the nation. In some situations the information may be classified not to protect the national security, but to protect public officials from exposure. Perhaps they have acted foolishly, callously, unlawfully or unconstitutionally.

Perhaps it is important for the American people to know what their representatives are doing - even though the information is classified. Sometimes, the disclosure may be harmless to the national interest, sometimes the harm caused by disclosure may be outweighed by the benefits of disclosure.



The problem, and it is a problem that must be taken seriously, is who gets to decide when classified information should be made public? Who gets to put the national security at risk? The solution must be the creation of a clearly defined and credible procedure through which would-be leakers can bring their concerns to an independent panel of experts who can make a formal and professional determination whether the information at issue should be declassified. The absence of such a procedure leaves would-be leakers, who think they are acting heroically, with no recourse but to keep silent or plunge ahead in ignorance, with potentially grievous consequences for the nation.



In the absence of such a procedure, what should Edward Snowden have done? Probably, he should have presented his concerns to senior, responsible members of Congress. But the one thing he most certainly should not have done is to decide on the basis of his own ill-informed, arrogant and amateurish judgment that he knows better than everyone else in government how best to serve the national interest. The rule of law matters, and no one gave Edward Snowden the authority to make that decision for the nation. His conduct was more than unacceptable; it was criminal.

Government Secrecy and the Nation's Security

In recent weeks, a series of disclosures has raised important issues about how the Obama administration deals with the inherent tension between government secrecy and government accountability. Revelations about the government's secret investigation of the phone records of the Associated Press and of Fox News reporter James Rosen, its secret access to private phone records held by Verizon, and its secret PRISM initiative that gives the government access to the records of international Internet providers all raise fundamental questions about government transparency and the state of American democracy.



These disclosures pose at least three central issues: (1) Is the government's action unconstitutional or otherwise illegal? (2) Is the government's action, even if constitutional and lawful, nonetheless bad public policy? (3) Is the government's decision to keep such actions secret legitimate in a free and self-governing society?



With respect to the first question, my tentative conclusion, based on the facts that have been made public, is that these government actions are neither unconstitutional nor otherwise unlawful under existing law. Although I would personally like to see the interpretation of the Constitution and the state of federal legislation changed in particular ways that might alter this conclusion, it seems reasonably clear to me that these actions, though controversial, do not in any obvious way violate current law.



With respect to the second question, I simply do not know enough to make an informed judgment about whether these actions reflect sound public policy or unwarranted government overreaching. The plain and simple fact is that the very secrecy of these actions makes it difficult, if not impossible, for responsible members of the public to make thoughtful decisions about whether these actions reflect a proper balancing of the competing interests in individual liberty and national security. To make sound evaluations about such matters, we would need to know much more than we do about the ways in which these programs are carried out and the actual importance of the programs in protecting the national security. Secrecy stands in the way of such judgments.



This brings me to the third issue: secrecy. All of these actions were meant to be secret. Neither the targets of the investigations nor the American people were meant to know what the government was up to. In a self-governing society, government secrecy is presumptively illegitimate. Our elected representatives are just that -- our representatives -- and we are entitled to know what they do in our name. This is at the very heart of self-governance.



The notion that we should blindly "trust" our public officials to do what is best for us is naïve, reckless and irresponsible. Such an approach invites illegitimate, inefficient and self-interested governance. Even well-meaning public officials make bad policy decisions because of political and personal self-interest.



Indeed, if government officials are permitted to keep their actions secret from the American people, all sorts of mischief is possible. Human nature being what it is, we can be sure that, in the long run, secrecy can -- and will -- be used by public officials (who are no better or worse than the rest of us) to hide stupidity, corruption, partisan abuse, discrimination, ineptitude, and outright criminality.



As I said before, government secrecy is presumptively illegitimate. But note the word "presumptively." Government secrecy is presumptively, but not absolutely, illegitimate. Despite the grave dangers of government secrecy, there are undoubtedly circumstances in which secrecy is essential.



Most important in terms of the issues now confronting us, government secrecy may at times be necessary for the government to be able to keep the nation safe. To offer a simple example, suppose the government taps the phone of a suspected terrorist in order to learn the identities of his co-conspirators. If the government were required by law to disclose the wiretap to the suspect before it is instituted so the suspect can challenge its legality, this would defeat the very point of the wiretap. Similarly, if the government has a covert operative inside a terrorist cell, secrecy is essential to enable the agent both to gather information and, perhaps, to survive.



These simple illustrations suggest the dilemma. Why does the government want secrecy when it examines the phone records of a reporter in order to determine the identity of the government employee who unlawfully leaked classified information to the reporter?



On the one hand, the government may want to be free to do this in secret for the illegitimate reason of avoiding the hassle of a bitter public fight with the press over the legality or wisdom of its action. On the other hand, the government may legitimately want to do this in secret because it wants to catch the leaker and it recognizes that if it informs the reporter of the investigation, and the reporter then challenges the investigation in court, the leaker will likely learn that he is under suspicion and either flee or immediately leak additional classified information before he can be arrested.



The problem is that, in the real world, government officials, like all of us, often have mixed motives for our actions. Sorting them out is extraordinarily difficult. Nonetheless, because of the demands of a self-governing society, we should operate on the assumption that government secrecy is presumptively illegitimate and that the government should be legally authorized to act in secret (this includes classifying information) only when there is a clear and overriding justification for secrecy. This requirement should be taken seriously.



Moreover, when the government does act in secret, it should always have in place careful checks-and-balances that prevent self-interested or misguided (even if well-meaning) public officials from abusing their authority to keep information from the American people. This is why the Fourth Amendment ordinarily requires the police to obtain a search warrant from a neutral and detached judge before invading an individual's privacy. That same principle should apply whenever government officials claim the awesome authority to act in secret. "Trust us" is simply not a recipe for good government.

Same-Sex Marriage in Illinois: The Role of the Black Church

The Illinois House failed Friday to act on pending legislation that would have allowed same-sex couples in Illinois to marry. The bill had passed the Illinois Senate on Valentine's Day, Illinois Governor Pat Quinn had proudly promised to sign the bill into law, both of Illinois' United States senators enthusiastically endorsed the legislation, the speaker of the Illinois House, the Illinois attorney general, every major newspaper in Illinois, and a majority of Illinois' citizens supported the legislation.



Nonetheless, Representative Greg Harris, the sponsor of the legislation, declined at the last moment to call the bill for a vote. After many months of tireless work by many thousands of Illinois citizens, Harris, who is a hero on this issue, tearfully announced that he did not have the votes to enact the law because "several of my colleagues have indicated that they would not be willing to cast a vote on this bill today." And so the matter was shelved for another day.



How did this happen? Marriage for same-sex couples is a sharply partisan issue. Democrats overwhelmingly support it (69 percent in favor); Republicans overwhelmingly oppose it (27 percent in favor). It is also an ideological issue. Liberals overwhelmingly support it (80 percent in favor); conservatives overwhelmingly oppose it (28 percent in favor). Predictably, the vote in the Illinois Senate, which is controlled by Democrats, followed clear party/ideological lines. Only one Republican in the Illinois Senate voted in favor of the legislation, but it passed on a pretty much party-line vote of 34 to 21.



One might then have expected clear sailing in the Illinois House, where the Democrats hold a 71 to 47 majority. But it did not work out that way. By all accounts, a major reason for the disappointing outcome in the House was the opposition/hesitancy/anxiety of the House Black Caucus, which includes 20 African-American Democrats. Given the political makeup of the Illinois House, the House Black Caucus clearly had the numbers to dictate the outcome. And on Friday, the members of the House Black Caucus chose to derail the effort to legalize marriage for same-sex couples in Illinois.



Now, in light of what I noted earlier about the positions of Democrats and liberals on this issue, this should be surprising. Not only are African-Americans predominantly Democrats and liberals, but they are more Democratic and more liberal than any other racial or ethnic group in the nation. Although 43 percent of whites are Democrats, 83 percent of African-Americans are Democrats, and African-Americans are 20 percent more likely than whites to identify as liberal. One might therefore have expected the members of the House Black Caucus to lead the charge in favor of a right of same-sex couples to marry. That is, after all, the dominant position of both Democrats and liberals.



Moreover, given the long and historic struggle of African-Americans to achieve equality for themselves in the United States, it might have seemed obvious that African-American legislators would be especially sensitive to and supportive of the demand of gays and lesbians for equality under the law.



But that was not to be. The usual liberalism of the House Black Caucus apparently does not extend to protecting the equality rights of gays and lesbians. That they pulled the plug on same-sex marriage in Illinois is therefore both disappointing and perplexing.



The explanation for this apparent puzzle seems to rest less in the views of the members of the House Black Caucus themselves than in the politics of religion in the African-American community. The ministers of many of the African-American churches in Illinois turned this issue into a crusade. As the Chicago Sun-Times reported, the members of the House faced "a withering lobbying blitz against" the legislation from black ministers. The message of the ministers was direct: "Vote against us on this issue and we will defeat you in the next election." Faced with such pressure, members of the House Black Caucus caved, at least for the moment.



An interesting thing about African-Americans in the United States is that they are both the most liberal and the most religious racial or ethnic group in the nation. 84 percent of African-Americans describe themselves as very religious, compared to 63 percent of whites. For many members of the African-American Protestant churches, homosexuality is a sin and same-sex marriage an abomination. On this score, African-American Protestants are even more hostile to same-sex marriage than Catholics. Despite the strictures of institutional Catholicism, 50 percent of all Catholics now support same-sex marriage, compared to only 34 percent of African-American Protestants.



It is clear, then, that for a major segment of the African-American community, when it comes to gays and lesbians, religion trumps liberalism. It is, of course, the right of individuals in our society to follow and propound their own religious beliefs without government interference. But that is not the issue here. The issue here is whether those holding particular religious beliefs can legitimately use the authority of government to impose their religious beliefs on others who do not share them. "My God forbids this conduct so the government must forbid it" is not a legitimate basis for government action in the American constitutional system.



It is especially distressing that these African-American ministers would act in such clear disregard of the fundamental American principle of separation of church and state. "My God forbids this" was precisely the argument that white supremacists used to defend slavery, Jim Crow and especially anti-miscegenation laws that forbade blacks and whites to marry.



When white segregationists intoned that "God forbids the marriage of whites and blacks," civil rights leaders -- including African-American minister -- courageously stood up for the right of individuals to marry whomever they loved - regardless of what others thought their God decreed. It is therefore particularly disheartening to see African-American ministers, who were once so eloquent in defending their own right to marry in the face of religious bigotry, now raising their voices so emphatically in order to deny that very same right to others.

Freedom of the Press and Criminal Solicitation

Several years ago, the FBI obtained a search warrant authorizing it to review two days' worth of Fox News reporter James Rosen's emails after demonstrating to a judge it had probable cause to believe that Rosen had committed a crime by soliciting the disclosure of classified information from a government official. The government official was later indicted for leaking classified information.



Since this development came to light, members of the media have insisted that the assertion that Rosen violated the law by soliciting the disclosure of classified information is wholly incompatible with the First Amendment. As Michael Clemente, Fox News executive vice president, exclaimed, "We are outraged to learn today that James Rosen was named a criminal co-conspirator for simply doing his job as a reporter... We will unequivocally defend his right to operate as a member of what up until now has always been a free press."



It is more complicated than that. At the outset, it is worth noting that two facets of this situation are clear. First, as a general rule, the First Amendment does not give government employees a constitutional right to disclose to reporters properly classified information. We can therefore reasonably assume, absent evidence to the contrary, that in this situation the source committed a federal crime by disclosing the classified information to Rosen.



Second, except in truly extraordinary circumstances, the First Amendment does give the press a constitutional right to publish even properly classified information when that information comes into its hands through no wrongdoing of its own. It might seem anomalous that the government employee has no right to leak the information but, if he does, the press has a right to publish it, but it is through these two seemingly-conflicting doctrines that the Supreme Court has long tried to balance the rights of the press with the legitimate and competing interests of the government.



In any event, we can assume that if in this situation the source had simply and on his own initiative turned over the classified information to Rosen, the source could have been criminally punished for the leak and Fox News would have had a constitutional right to broadcast the information.



That brings us to the question posed in the current situation, for here the source did not turn over the information to Rosen on his own initiative. Rather, Rosen allegedly persuaded him to do so. Has Rosen committed a crime, as the government alleged?



In general, it is unlawful for one person to solicit another to commit a criminal act. If X persuades Y to kill Z, for example, X can be punished for criminal solicitation of murder. This is a broad principle that, we can assume, ordinarily would apply to Rosen's apparently successful effort to persuade the source unlawfully to leak the classified information.



But is Rosen, as a reporter, exempt from the ordinary law of criminal solicitation? Does the First Amendment give a reporter a constitutional right to do what other citizens have no right to do? The claim, of course, is that unlike the situation in which X solicits Y to kill Z, Rosen's solicitation was undertaken for the public good, because Fox News, after all, has a constitutional right to publish the information. There is, in other words, no good reason to give X a right to solicit Y to kill Z, but there is a good reason to give Rosen a right to persuade the source to disclose the information to him (even though it is a crime for the source to do so). Confused yet?



The problem with this argument is that, in interpreting the First Amendment, the Supreme Court almost never accepts such claims. For example, suppose someone walks down the street naked to protest laws against obscenity, or speeds to get to a political rally in time to give a speech, or refuses to pay his taxes so he can give larger contributions to his favorite political candidates. In all of these situations there is a speech-related reason why the actor wants an exemption from a law of otherwise general application, but the Court has consistently, and quite reasonably, rejected such claims.



Similarly, in the Free Press context, suppose a journalist commits an illegal burglary in order to obtain information about a possible scandal, or conducts an illegal wiretap in order to prove that a congressman took a bribe, or steals a sophisticated camera in order to take better photos for her website. In none of these situations will the journalist be able, under current law, to assert a First Amendent right to commit the criminal offense because she did so in order to be a more effective journalist.



If we take that doctrine as the baseline, then the question is whether a journalist has a First Amendment right to engage in an otherwise unlawful criminal solicitation in order to obtain and then publish classified information. Fox News' argument seems to be that because reporters have always done this, it's too late to change the rules now. This is not as silly an argument as it sounds. The Supreme Court has often taken traditional practice into account in giving meaning to constitutional provisions, and it is not impossible that it would -- and should -- do so here. But that is far from a self-evident proposition.



The truth is that striking the right balance between the government's legitimate need for confidentiality, the press's legitimate need to obtain information about government action, and the public's "right to know" what its representatives are up to, is a difficult and delicate task. All three branches of the federal government have a role to play in striking this balance. The president can exercise restraint (indeed, no reporter has ever been criminally prosecuted for soliciting classified information, even though it is apparently a common practice), the Congress can (and should) enact laws defining criminal conduct in this context more clearly, and the judiciary can better define the protections of the First Amendment. All three branches need to think harder about this issue.



In the meantime, though, it is important to keep in mind that the government in this situation has not filed any criminal charges against James Rosen, or suggested in any way that it plans to do so. It merely stated, quite accurately I suspect, that under current law he committed a crime.

The AP 'Scandal': The Straight Scoop

We've read a lot lately about the AP "scandal." In short, on May 7, 2012, the Associated Press released a story that disclosed classified details of a CIA operation in Yemen that prevented an airliner bombing around the anniversary of the killing of Osama bin Laden.



In an effort to determine the identity of the government employee who leaked the classified information to the AP, the Justice Department, after conducting an extensive investigation without success, subpoenaed from the AP's phone company the records for more than twenty telephone lines used by the AP and its journalists. The hope was that, by examining the incoming and outgoing phone numbers, it could identify the leaker and prevent him or her from releasing additional classified information in the future.



According to the media (to say nothing of Republicans and Fox News), in pursuing this investigation the Obama administration brutalized the Constitution and flagrantly violated the law. The hysteria of the media's response is predictably self-involved and self-interested and the reaction of Republicans is predictably hypocritical.



Let me say at the outset that I am a card-carrying member of the ACLU, a strong proponent of press freedom and a staunch believer in both a robust First Amendment and a vibrant Fourth Amendment. But I also care about rational public discourse, and the furious condemnation of the Department of Justice in this situation is way over the top.



The Fourth Amendment prohibits "unreasonable searches and seizures." Almost forty years ago, in a regrettable decision, the conservative justices on the Burger Court held that individuals have no "reasonable expectation of privacy" in information we voluntarily reveal to third parties. The Court therefore held that for the government to obtain our financial records from our bank, or our phone records from our phone company, is not an "unreasonable search or seizure" within the meaning of the Fourth Amendment.



This understanding of the Fourth Amendment is regrettable because it ignores the reality that in the modern world we often, as a matter of practical necessity, expose what we quite reasonably regard as private information to third parties, such as banks, Internet providers and phone companies. That we reveal such information to those entities does not in any way suggest that we are indifferent to the privacy of the information.



Nonetheless, that is the prevailing interpretation of the Fourth Amendment and there is no possibility that the current conservative majority on the Supreme Court will change it. Thus, the subpoena of AP phone records from the phone company does not violate the Fourth Amendment.



The First Amendment prohibits government to abridge the "freedom of the press." Does it violate the First Amendment for the government to gather information about the AP's phone records? The media argue that because this action will reveal the identity of confidential sources, it abridged "the freedom of the press."



Forty years ago, in another regrettable decision, the conservative justices on the Burger Court held that the government can constitutionally require reporters to disclose the names of confidential sources. The Court held, in effect, that the "freedom of the press" does not give members of the press any special rights not enjoyed by other individuals.



Although the government cannot constitutionally discriminate against the press (for example, by charging higher sales taxes for newspapers than for other products), the Court held that if other individuals can be compelled to disclose information relevant to law enforcement, then journalists can be compelled to do so as well.



This understanding of the First Amendment is regrettable because there are clearly circumstances in which the government should be constitutionally required to recognize and respect the distinctive harm its investigations might have on our ability to preserve a vibrant, robust public discourse. But, because of the settled state of First Amendment law on this question, it is clear that the Department of Justice's action did not violate the First Amendment (despite the outraged complaints of the media).



In short, then, nothing the Department of Justice did in this investigation violated the Constitution as currently understood. Nor did anything it did violate federal law. Although proposals to enact legislation restricting the ability of the government to compel the disclosure of information about the identity of confidential sources -- a so-called "Shield Law" -- have been presented repeatedly in Congress over the past decade, Republican lawmakers have consistently -- and shamefully -- blocked such legislation on the theory that it might weaken the national security. Thus, it is also clear that the Department of Justice's use of a subpoena to require the phone company to turn over the call records of the AP did not violate any federal law.



Legally, then, the Department of Justice could constitutionally and legally have sought the phone records of the AP at any time and in any manner it pleased. As a measure of good government, though, since Watergate, the Department of Justice has acted with self-restraint. For the past forty years, the Department has imposed upon itself specific, voluntary limitations on when it will exercise its lawful authority to ascertain the identities of confidential sources.



Thus, as set forth explicitly in Department of Justice regulations, the Department, "in recognition of the importance of freedom of the press to a free and democratic society," has promulgated regulations providing that "the prosecutorial power of the Government should not be used in such a way that it impairs a reporter's responsibility to cover as broadly as possible controversial public issues." These regulations provide that the Department will not subpoena the phone records of a member of the news media unless certain conditions are satisfied, including



(a) balancing in each instance "the public's interest in the free dissemination of ideas and information with the public's interest in effective law enforcement,"



(b) "taking all reasonable steps to attempt to obtain the information through alternate sources or means,"



(c) fashioning the subpoena "as narrowly as possible to obtain the necessary information in a manner as minimally intrusive and burdensome as possible," and



(d) negotiating "with the affected media" before resorting to a subpoena "unless such negotiations" might "pose a substantial threat to the investigation."



Although these regulations are, in my view, insufficiently protective of the interests of a free press, they are as protective as the Department of Justice has ever been, and they are more protective than either the Constitution (as interpreted by conservative justices) or federal law requires.



It is, of course, possible that the Department of Justice did not comply with its own regulations in the AP investigations. Perhaps the subpoena could have been more narrowly drawn. Perhaps the Department should have negotiated with the AP before issuing the subpoena. I do not have sufficient information to speculate about these issues, but nor do the media. What is clear, though, is that the overblown claims that this investigation is some huge "scandal" that threatens the very foundations of our free society are nothing short of absurd.

Justice Ginsburg, Roe v. Wade and Same-Sex Marriage

I had the honor of having a public "conversation" yesterday with Justice Ruth Bader Ginsburg before a large audience at the University of Chicago Law School. The topic of the event was the 40th Anniversary of Roe v. Wade. Justice Ginsburg offered many interesting observations about the women's rights movement, in which she herself was a pivotal actor. But I suspect some of her reflections on Roe v. Wade must have surprised the audience.



Because Justice Ginsburg has always been a strong proponent of a woman's right to choose, I suspect members of the audience expected her to celebrate Roe v. Wade as one of the great achievements in the history of the Supreme Court. Instead, though, Justice Ginsburg was quite critical of the decision.



Justice Ginsburg's critique of Roe is especially interesting at this moment in time because it has implications for the same-sex marriage cases currently pending before the Court. Of course, Justice Ginsburg did not herself draw any of such parallel, and it would have been inappropriate for her to do so. But the connection could not have been lost on the audience.



As it happens, I disagree strongly with Justice Ginsburg's take on Roe. Perhaps the most surprising facet of Justice Ginsburg's critique of Roe is her claim that the Court in Roe went "too far, too fast." Until the 1960s, every state made abortion a crime unless it was necessary to save the life of the woman. In the late 1960s and early 1970s, however, in large part because of the women's movement, several states began to ease their restrictions on abortion, and four states went so far as to legalize abortion in the first twenty-four weeks of pregnancy.



When the Court decided Roe in January of 1973, it held that a woman has a constitutional right to control her own body and to make decisions for herself about such a fundamentally personal matter as whether to bear a child. The Court therefore held that laws prohibiting abortion in the first twenty-four weeks of pregnancy are unconstitutional. Roe invalidated the abortion laws of almost every state in the nation. It had an immediate and dramatic effect on the freedom of women to terminate unwanted pregnancies.



Justice Ginsburg argues that the Court in Roe v. Wade should have been more modest in its decision. It should have held only that the Texas law before it in Roe, which prohibited abortion unless necessary to save the life of the woman, was unconstitutional, leaving for the future the question of what other restrictions on abortion might be constitutional. By instead reaching out to decide the much more broader question - whether any prohibition of abortion is constitutionally permissible in the first twenty-four weeks - the Court, in her view, short-circuited the democratic process and failed to allow the states to work out for themselves how best to regulate abortion.



Justice Ginsburg's objection is that, by issuing so bold and far-reaching a decision, the Court infuriated the opponents of choice and triggered a bitter and divisive response, manifested in the Moral Majority and conservatives more generally, that has polarized the nation to this day. Put simply, Justice Ginsburg believes that Roe v. Wade triggered a political "backlash" that not only poisoned American politics but also energized the resistance to abortion and thus undermined the very goals Roe sought to achieve.



If this understanding of Roe has force, then it does seem to suggest that the Supreme Court should go slow on the issue of same-sex marriage, because a decision holding that same-sex couples have a constitutional right to marry might trigger a similar reaction to the one arguably triggered by Roe. Were that to happen, it could further polarize the political process, damage the Court as an institution, and frustrate the long-terms interests of gays and lesbians.



The problem, in my view, is that Justice Ginsburg is wrong in her assessment of Roe. This is so for several reasons. First, it is important to remember that at the time Roe v. Wade was decided it was not thought to be a particularly difficult or ideological decision. The vote was seven-to-two, and three of Richard Nixon's four "conservative" nominees supported the decision, including Chief Justice Warren Burger.



Although the Catholic Church, which had strenuously opposed abortion well before Roe, was vigorous in its condemnation of the Court, the vast majority of Americans supported the decision. Indeed, at the time Roe was decided, Americans by a two-to-one margin agreed that "the decision to have an abortion should be made solely by a woman and her physician," and even 56 percent of Catholics agreed with this proposition. When Justice John Paul Stevens was nominated to serve on the Supreme Court in 1975, not a single senator asked him about Roe. In short, Roe itself did not produce a "backlash."



What did produce the political polarization over abortion was the effort of Republican Party strategists, both before and after Roe, to use the issue of abortion to help pry Catholic voters away from their traditional home in the Democratic Party and to help energize Evangelicals by portraying the Democrats as the party opposed to school prayer and in favor of evolution, equal rights for women, abortion and "sex, drugs and rock 'n roll." These Republican strategists, particularly in the Reagan era, successfully brought these social issues to the very heart of American politics.



Second, Justice Ginsburg suggested that just as no-fault divorce swept the nation at more or less the time as Roe, the same might have happened with abortion. That is, left to their own devices, and without the Supreme Court's aggressive intervention, the states might eventually have come to the same position on abortion through the process of democratic decision-making that Roe v. Wade imposed upon them as a matter of constitutional interpretation.



This seems to me unrealistic in the extreme. Even by 1973 the gradual movement towards more liberal abortion laws had slowed and it is difficult to believe that most states would have come around to that position anytime soon. The obvious difference between no-fault divorce and abortion in terms of the depth of feeling about the status of the fetus renders the no-fault divorce analogy unpersuasive. The plain and simple fact is that the same factors that have generated opposition to abortion for the past forty years would have played out in more or less the same way with or without Roe v. Wade.



Third, even if the Justices at the time of Roe had been able to anticipate that the decision would cause a "backlash," it is not at all clear that they should have given this much weight in deciding what the Constitution in fact means. The essential nature of constitutional rights is that they protect fundamental personal liberties even though others do not want to recognize them. In that sense, the Constitution is necessarily counter-majoritarian. If majorities could be counted upon to protect constitutional rights, we wouldn't need a Bill of Rights.



For the Supreme Court to have failed to protect what the justices firmly believed to be the constitutional right of a woman to terminate an unwanted pregnancy because of a fear that recognizing that right would anger other citizens would have been a betrayal of their most fundamental responsibility. Indeed, had the Court in Roe taken a gradualist approach and allowed the democratic process to work it way pure, millions of women would have needlessly faced the cruel dilemma of either risking dangerous back-alley abortions or carrying to term millions of unwanted children. This is too great a price to pay for judicial incrementalism once seven justices have concluded that a right in fact exists -- as the Court itself expressly observed in Roe.



Finally, Justice Ginsburg opined that even if Roe v. Wade had never been decided, a woman who could not legally get an abortion in her own state of residence could always hop on a bus, train or plane and have an abortion performed in a state in which abortion was legal. Thus, in some sense Roe was unnecessary. As I expressed in our "conversation," I found this an odd argument to make in the realm of constitutional rights.



Be that as it may, it is worth noting that this argument, whatever its merit, has no bite in the context of same-sex marriage. If Alabama refuses to recognize a same-sex marriage performed in Massachusetts, then the ability of Alabama residents to go to Massachusetts to get married is of no value to them when they return to Alabama. In this sense, abortion is fundamentally different. A resident of Alabama can travel to New York for an abortion and return home no longer pregnant. A same-sex couple can travel to New York, marry, and return home to Alabama with their legal status unchanged.



I am a great admirer of Justice Ginsburg. But in her criticisms of Roe v. Wade, I must dissent. Roe transformed the lives of tens of millions of women in this nation. It was the right decision . . . and its time had come.

The Boston Bombing, The Right of Privacy and Surveillance Cameras

We live in a world of ever-shrinking individual privacy. More and more can be learned about us by friends and strangers alike by a quick search on the Internet. Businesses track our searches and our transactions and sell that information to others who can readily piece together a profile of our likes, our interests, the books we read, the movies we watch, and the names of our friends. The practice of using surveillance cameras to record our comings and goings is ever-expanding, and will certainly expand still further after the Boston bombings.



A central question is whether we do -- or should -- care about our privacy. Critics of the right of privacy argue that people have nothing to hide if they don't do anything wrong. The right of privacy therefore protects only wrongdoing and is thus not an important social value. Even worse, they argue, the right of privacy is really nothing more than a right to deceive others about who we really are and is therefore of negative social value.



According to these critics of the right of privacy, if you don't want others to know that you were once arrested for shoplifting or had an abortion or voted for Barack Obama or bought a pornographic novel or met a former lover for a drink or have a learning disability or are gay or spent a drunken weekend in Bermuda or have saggy breasts when naked, then what you are really doing is trying to mislead others into thinking that you are a "better" person than you really are. Why, they ask, should the law protect that interest? To keep such information private from those who would think less of us if they knew the truth, they argue, is just a form of personal false advertising.



Although this argument may be superficially intriguing, it is ultimately unpersuasive. The individual right of privacy is deeply engrained in our culture for many reasons. It protects the ordinariness of life. That is, it enables us to go about our business on a day-to-day basis without having constantly to worry that we will be judged by others now or in the future for everything we do. It enables people to live down their mistakes and to become better persons without forever being captive to the errors of the past. It frees people to make decisions and to lead their lives in ways that they believe to be right without having constantly to justify themselves to others who would condemn their decisions. That is, indeed, an important part of what it means to be free.



The right of privacy also recognizes that, human nature being what it is, we often place too much weight on what we deem to be the mistakes of others, leading us to judge them unreasonably. Indeed, the law recognizes this facet of human nature in many ways. In criminal trials, for example, jurors are prevented from learning of the prior crimes of the defendant, because such knowledge might prevent them from reaching a a fair and unbiased judgment about whether the defendant actually committed the crime at issue trial.



Finally, where the government is involved, there is a special dimension to the right of privacy. If the government could learn everything it wants about every one of us, it would be difficult if not impossible for citizens to keep in mind that the government works for them, rather than the other way around. The right of privacy is thus an essential element is preserving the citizen's own sense of dignity and autonomy vis a vis the government. This is critical to maintaining a system of political self-governance. Indeed, it is for these reasons that the Fourth Amendment expressly guarantees "the right of the people to be secure in their persons, houses, papers and effects, against unreasonable searches and seizures."



This brings me, finally, to the question of surveillance cameras. There is no doubt that having such cameras in every public place will deter some types of crime. But constant and systematic searches of our homes, our persons, our cars, and our briefcases and purses would also deter some types of crime. The Fourth Amendment, like every constitutional guarantee of individual liberty, comes at a price.



In deciding whether surveillance cameras in public violate the Fourth Amendment, three issues are paramount. First, taken literally, the Fourth Amendment doesn't seem to deal with surveillance cameras because it deals only with "searches and seizures." Video surveillance isn't a seizure, but is it a "search"?



In the 1920s, in Olmstead v. United States, the Supreme Court first confronted the question whether wiretapping constituted a "search" within the meaning of the Fourth Amendment. The Court, over the dissenting votes of Justices Oliver Wendell Holmes and Louis Brandeis, held that at the time the Fourth Amendment was enacted a "search" required a physical intrusion into a physical place, such as a home, an envelope or a pocket. Applying this form of "originalism," the majority therefore held that a wiretap is not a "search" because it does not require the police to enter into the suspect's home.



In 1967, in Katz v. United States, the Supreme Court revisited and overruled Olmstead, holding that "the Fourth Amendment protects people, not places," and that the central question in defining a "search" is whether the government, in attempting to gather information about individuals, intrudes upon "reasonable expectations of privacy." Because people have "a reasonable expectation of privacy in the telephone conversations," a wiretap is a "search" even though it does not involve any physical intrustion into the individual's home or office.



The second question, then, is whether individuals have a reasonable expectation of privacy in their comings and goings in public. An originalist approach would say "no." At the time the Fourth Amendment was enacted no one thought that the police couldn't lawfully observe an individual's movements in public without satisfying the Fourth Amendment. That being so, is there any reason to treat the use of surveillance cameras as a "search"?



Here, I think it is important to consider what I have called the principle of conservation of privacy. With the development of technology, the government has a much greater ability to learn things about us than it could in past. As a practical matter, it was impossible for the government to follow all of our actions in public all the time. That gave us a sense of security and normalcy that in all likelihood the government was not monitoring our every movement and activity. This gave us a certain freedom to move about in public without having to worry that "Big Brother" was watching. A network of pervasive surveillance cameras would destroy that freedom. It therefore, it my view, does intrude upon a reasonable expectation of privacy, as it existed in the past.



Third, if the use of surveillance cameras does, then, constitute a "search" within the meaning of the Fourth Amendment, is the search "reasonable," as the Constitution requires? Here, I would argue that such surveillance on individuals in public is permissible only if the recordings can be accessed by the police only if they obtain a search warrant from a judge who has determined that the police have probable cause to believe that viewing the recording may reveal useful information in a criminal investigation. This seems to me the best way to reconcile the interest in individual privacy with the competing interest in effective law enforcement.