The Supreme Court and Civil Liberties

The United States Supreme Court has been faced with a number of very important cases over the last decade that address our most fundamental civil liberties. Thankfully, in most recent cases it has ruled correctly—though often by a depressingly narrow 5-4 margin.

Here is a review of how the Supreme Court has ruled on three important civil liberty issues over the last several years, and a look at two new ones the Court will be ruling on within the next year.

Right to Free Speech (Citizens United, 2010)

The Supreme Court ruled 5-4 in 2010 that the First Amendment right to free speech still applies in election season. In Citizens United v. Federal Election Commission (558 U.S. 08-205 (2010)), the court found that several provisions of the McCain-Feingold campaign finance law were an unconstitutional limitation on corporate speech.

Critics say that the First Amendment applies to people, not corporations, but the Constitution doesn’t say that. The First Amendment plainly states that “Congress shall make no law . . . abridging the freedom of speech, or of the press.” In fact, the Amendment goes on to say, “ . . . or the right of the people peaceably to assemble, and to petition the Government for a redress of grievances.” Corporations are peaceable assemblies of people, which have their own Constitutional protection in the context of the First Amendment. The Bill of Rights clearly codifies free speech as a fundamental civil liberty enjoyed equally by people acting individually and collectively (whether they be in corporations, non-profits, or ad-hoc protest communities on Wall Street).

The fact that this ruling was a narrow 5-4 victory for this fundamental civil liberty makes me question the four dissenting justices’ basic reading comprehension skills. Justices Stevens, Ginsburg, Breyer, and Sotomayor are either willfully attempting to rewrite the Bill of Rights to suit their personal opinions, or they need some serious refresher courses in law, American history, and English. The right to free speech is among the most sacred of civil liberties; it is not negotiable.

Right to Bear Arms (Heller, 2008; McDonald, 2010)

In June 2008, the Court ruled 5-4 in District of Columbia v. Heller (554 U.S. 570 (2008)) that Washington, DC’s gun ban was a violation of the Second Amendment. Although the Court upheld reasonable limitations on the right to keep and bear arms, it ruled unequivocally that the Second Amendment protects an individual civil right—as a plain-text reading of the Second Amendment would indicate. As such, DC’s blanket handgun ban was clearly unconstitutional. Two years later, the Court reiterated this ruling 5-4 in McDonald v. Chicago (561 U.S. 3025, 130 S.Ct. 3020 (2010)) and made clear that civil rights apply everywhere, not just in the federal district.

So when the authors of the Bill of Rights said that “the right of the people to keep and bear arms shall not be infringed,” they meant that “the right of the people to keep and bear arms shall not be infringed.” Who ever would have guessed?

It is incredibly troubling that four justices dissented from the Heller and McDonald rulings when the plain text of the Constitution is so clear and unambiguous. Those who make specious claims about the Amendment’s first clause, saying that this civil liberty only applies to members of a ‘militia,’ neglect to notice that the second clause is not dependent on the first (as the first merely establishes background). Even if it were, the militia in the United States is made up of all able-bodied Americans. As George Mason said, “I ask, sir, what is the militia? It is the whole people, except for a few public officials.” So even a narrowly-crafted ‘militia’ interpretation still protects a broad, individual right.

Justices Stevens, Ginsburg, Breyer, and Souter were the dissenters trying to undermine your civil liberties from the bench in Heller. Souter had retired before the McDonald decision, but Justice Sotomayor happily took his place (to form the same group of dissenters we saw in Citizens United).

Right to Private Property (Kelo, 2005)

Unfortunately, with a Supreme Court so evenly split between people intent on protecting our civil liberties and those trying to undermine them, it takes only one justice to shift a decision the wrong way. In Kelo v. City of New London (545 U.S. 469 (2005)), the Court ruled 5-4 that governments have the right to seize your private property and turn it over to businesses in the name of ‘economic development.’

Of course, the Fifth Amendment says otherwise: “No person shall . . . be deprived of life, liberty, or property, without due process of law; nor shall private property be taken for public use, without just compensation.” Governments can seize property through the eminent domain process, but they can do so only for ‘public use’ and with just compensation. Promptly turning the property over to a private corporation for their profit-making ventures is not, by any stretch of the imagination, ‘public use.’

The same ‘liberal’ wing of the court that took the anti-liberty position in Heller—Justices Stevens, Ginsburg, Breyer, and Souter—predictably took the anti-liberty position on Kelo as well, joined by swing-voter Justice Kennedy to give them the majority. How curious then that the ‘conservative’ wing gets tarred with the ‘pro-corporation’ label (presumably on the basis of the Citizens United decision). The ‘conservative’ wing says that corporations have the right to run political ads; the ‘liberal’ wing says they have a right to seize your property at-will through the fiat of the local government.

The Kelo decision is probably the worst Supreme Court decision to come down in decades. It is utterly indefensible and inexplicable. If the government can kick me out of my home and hand my property over to a developer, what can’t they do? What limitations on government authority still exist?

Protection from Unreasonable Search (Jones, 2012)

In its current session, the Supreme Court heard arguments in United States v. Jones (10-1259). A ruling is expected some time next summer. The question before the court is whether law enforcement authorities can surreptitiously place GPS tracking units on suspects’ cars and track them indefinitely without a warrant.

Again, a plain-text reading of the Bill of Rights should answer this question for you. The Fourth Amendment says that, “The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated. . . .” Your car is an ‘effect,’ and is thus protected. When you are pulled over for speeding, a police officer cannot search your car beyond what is in plain sight without probable cause (or your permission). The same standard applies here. So, yes, a police officer can install a GPS unit in your car without a warrant . . . but he must place it in plain sight, making it subject to you noticing it and removing it. If the police want to hide the device out-of-sight and track your movements, they need a warrant to do it.

Some have asked how this differs from placing a suspect under surveillance, which is perfectly legal. The answer is simple. First and foremost, placing an object in or on your car is tampering with your property; an officer following you around hasn’t tampered with anything. Second, a GPS device follows your car to places that an actual surveillance team would be unable to go without a warrant—e.g., into your garage, up a long private driveway, etc. Third, putting you under surveillance requires effort and, as such, the police won’t do it without a good reason; placing a GPS device requires very little effort, and makes it more likely that innocent people will be tracked unnecessarily.

I will be watching this ruling closely. If the government’s position is upheld, it would be a serious erosion of our basic civil liberties akin to that in the Kelo case—and possibly even more severe. I also expect that there will be other Fourth Amendment cases making their way to the Supreme Court in the coming years relating to the Transportation Security Administration’s unconstitutional nude photography and groin groping.

Update, 01/23/2012: The Supreme Court has ruled unanimously that warrantless GPS tracking is a violation of the Fourth Amendment. It is a welcome change of pace for the Court to rule unanimously that the Constitution means exactly what the Constitution says.

The Individual Mandate (Florida, et al, 2012)

Destined to become a landmark decision of epic proportions, the Supreme Court announced today that it will be hearing Florida, et al v. Department of Health & Human Services (11-400) in its coming sessions. With an expected ruling next summer, the case will evaluate and rule on the constitutionality of the Patient Protection and Affordable Care Act, which is being challenged by a majority of U.S. state governments. Under President Barack Obama’s (D) health care reform law, the federal government will require all U.S. citizens to purchase health insurance (whether they want it or not). While several elements of the act will be reviewed by the Court, this is the most pernicious.

Since health care is not one of the powers of Congress enumerated by the Constitution, this subject area falls under the Tenth Amendment’s declaration that, “The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people.” In other words, the federal government has no authority whatsoever to mandate the purchase of health insurance. The Founders recognized that by enumerating our fundamental civil liberties in the Bill of Rights, they were running the risk that future leaders might think that anything not listed was fair-game for legislation. To guard against this, they included two Amendments to clarify: the enumeration of certain rights doesn’t mean there aren’t other rights too (9th), and any rights not delegated to the federal government by the Constitution are retained by the States and people (10th).

States can enact individual mandates if they want to, though I wish they wouldn’t. Massachusetts has one, and states regularly mandate the purchase of auto insurance for car owners as well. The federal government, however, has no such authority. Indeed, if they can legally require you to buy health insurance, what’s to keep them from requiring that you buy a motorcycle, or a cow, or a MacBook Pro if they somehow determine that it’s in the public interest for you to do so? If health care is a right (and I agree that it is), that doesn’t mean that you can compel me to take advantage of it. Freedom includes the right to make bad choices.

Thomas Jefferson said, “I consider the foundation of the Constitution as laid on this ground: That ‘all powers not delegated to the United States, by the Constitution, nor prohibited by it to the States, are reserved to the States or to the people.’ To take a single step beyond the boundaries thus specially drawn around the powers of Congress, is to take possession of a boundless field of power. . . .” In this health care reform act, with a binding mandate that all Americans buy something whether they want it or not, our government has taken full possession of that boundless field of power that Jefferson warned about. Presidents and Congresses have flirted with it for the better part of a century, and two years ago they finally seized it outright. Your government now thinks it has the right to tell you what commercial products and services to buy ‘for your own good.’

If the government’s position is permitted to stand, if the individual mandate remains the law of this land, then the United States Constitution and our Bill of Rights are dead letters. The already-battered foundations upon which they are lain—federalism, limited government, and individual liberty—will have crumbled into dust. Make no mistake about it: the precedent the Court sets in this case will determine whether we are to live under a republic or a tyranny; whether our government answers to us, or us to it; whether the Constitution is our national guiding light or a meaningless, ignored anachronism.

Needless to say, I’m watching closely. . . .

Update, 06/28/2012: The Supreme Court has ruled 5-4 that the individual mandate is constitutional under a novel interpretation that labels the no-insurance fine as a tax. Federalism is now, effectively, dead, as the federal government can now require any behavior so long as the only punishment is a fine (now labeled a tax).

Scott Bradford is a writer and technologist who has been putting his opinions online since 1995. He believes in three inviolable human rights: life, liberty, and property. He is a Catholic Christian who worships the trinitarian God described in the Nicene Creed. Scott is a husband, nerd, pet lover, and AMC/Jeep enthusiast with a B.S. degree in public administration from George Mason University.