From: Spencer M. Marsden <smm2126@columbia.edu>
  To  : <cpc@emoglen.law.columbia.edu>
  Date: Thu, 13 Apr 2006 15:49:27 -0400

Paper 1 Battle for Privacy: The Dull Weapon

The Dull Weapon

We are at war.   I agree with most Americans that this war is not a
traditional war pitting sovereignty against sovereignty.  However,
most Americans either turn their head or  are unaware of the war I
speak of.  The war I speak of is not about 9/11, Iraq, Iran,
Al-Queda, or any other group that we hear about ad nauseam in our
news media. The war I speak of is a civil war.  Whether we realize
it or not, we at war with our own government.

Our government has been consistently seeking to increase its power
over the lives.  It really doesn’t matter which political party is
in office, “[l]eft-wing politicians take away your liberty in the
name of children and of fighting poverty, while right-wing
politicians do it in the name of family values and fighting drugs.
Either way, government gets bigger and you become less free.”

In this war, privacy has become one of the major, if not the most
important, battle fields.  If we are too limit the ability of the
government to interfere and regulate our lives, even the most
intimate and private affairs of our lives, privacy is necessary.

Since the rise of the internet and the increase in communicative
technology, the federal government has been seeking to regulate and
control it.  The recent NSA spying and Google Search request are
just recent incidents of the Government’s obsession to find out
what we are doing in our life. Justice Brandies in 1929 dissented
in Olmstead and proclaimed that:


“Subtler and more far-reaching means of invading privacy have become
available to the Government. Discovery and invention have made it
possible for the Government, by means far more effective than
stretching upon the rack, to obtain disclosure in court of what is
whispered in the closet.”

If the means were subtle and far-reaching back in 1929, Brandies
would be without words to describe the methods of invading privacy
today. So how do we stop these subtle means?  As is often the case
one looks to the Constitution to constrain the actions of
government.  However, the Constitution may be the wrong weapon in
this battle.  The problem with using the Constitution as a weapon,
is that both dominate methods of interpreting  the Constitution
(originalism and progressive) will likely not yield desirable
results that protect privacy in the long term.

Originalism:

The first problem with Originalism is that originalism, like every
other method of interpretation, can be manipulated cleverly to the
will of the judge. A perfect example of this out is Olmstead. Here
we see the two types of originalism, as described by Lawrence
Lessig “one-step” and “two-step,” being employed to yield different
results. Judge Taft et al took a one-step approach and said
wiretapping was unknown to the Framers and therefore was not
covered by the Fourth Amendment. Brandies took the two step
approach. He found what was prohibited-e.g. government invasion of
privacy without a warrant and applied it to the technological
change that the Framers could not envision. However, both types of
originalism can be employed with equal force claiming “fidelity”
and “legitimacy.” This allows judges to manipulate the end result
for political expediency.  Furthermore, there is another trick that
allows judges and justices to get around original meaning when it is
diametrically opposed with their personal beliefs.  The trick even
has a fancy latin phrase: Stare decisis.  When originalism would
dictate overthrowing a previous case that justices like, they
simply claim stare decisis prevents them from overturning.  While
many justices, who I once admired, claimed to truly be principled,
my faith and hopes in their objectivity was dashed when Scalia, an
outspoken originialist, decided to go with his anti-drug policy
rather than actually allowing the original meaning to prevail in
Raich.

Aside from the flexibility and hypocritical originalists,
originalism would still as an interpretive method for the
constitution because there is no way that even a two-step
originalist approach, the methodology I espouse, could cover all
that I would want it to cover. As we discussed in class, private
sources are for the most part doing the dirty work to invade
privacy and under even a broad originalist reading it would be hard
to find a constitutional ground (a common law trespass doctrine may
however fill this gap) to prevent private parties from invading
privacy viz. technology. So in the battle for privacy, an
originalist approach cannot be the answer.

Living Document/Progressive Interpretation

However, a progressive or a “living document” approach also does not
yield the results desired. If Originalism suffers the problem of
manipulation, a living document problem is completely undermined by
it.  The living document approach will only protect privacy so long
as Justices and Judges are pro-privacy.  Both liberal results
protecting privacy and conservative results invading privacy could
be upheld constitutionally under the living document. When you
start down the road of pnumbras and emanations, what is going to
stop justices from finding a pnumbra around the executive vesting
clause which gives the President the absolute right to invade our
privacy so long as there is a compelling state interest.

So if a principled approach to enforcing the Constitution does not
do all that I wish it to do in the privacy context, then we must
look for other tools to win the battle. I may be scorned for giving
the benefit of the letter to this Devil who seeks to know and
control my life. Indeed, I certainly feel the urge to forsake
principle, but we cannot do that for when the last principle is cut
down “and the Devil turn[s] 'round on you, where would you hide… the
laws all being flat? This country is planted thick with laws, from
coast to coast… [a]nd if you cut them down… do you really think you
could stand upright in the winds that would blow then? Yes, I'd give
the Devil benefit of law, for my own safety's sake!”  And so I
search for a better weapon to slay the Leviathan.

Spencer Marsden

Word Count: 997


-- 
Spencer M. Marsden
Columbia Chapter President of the Federalist Society
51 Avalon Gardens Drive
Nanuet, NY 10954
801-520-4742
smm2126@columbia.edu





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