By JUDGE ANDREW P. NAPOLITANO
“The makers of our Constitution undertook to secure conditions favorable to the pursuit of happiness. They recognized the significance of man’s spiritual nature, of his feelings, and of his intellect. They knew that only a part of the pain, pleasure and satisfactions of life are to be found in material things. They sought to protect Americans in their beliefs, their thoughts, their emotions and their sensations. They conferred, as against the Government, the right to be let alone — the most comprehensive of rights, and the right most valued by civilized men.
— Justice Louis D. Brandeis (1856-1941)
When Justice Louis D. Brandeis referred to the right to privacy as “the right to be let alone,” it was 1928. He was dissenting in a Supreme Court opinion called Olmstead v. United States, in which federal agents tapped the telephone lines of Roy Olmstead and others and recorded their conversations about importing alcohol into the U.S. during Prohibition. They did so without search warrants. On the basis of the tapped conversations, Olmstead and his colleagues were convicted of conspiracy to violate federal law. The Supreme Court upheld their convictions.
The issue in the case was whether the Fourth Amendment’s prohibition of searches and seizures without a warrant issued by a judge based on probable cause of crime includes surveillance. When Brandeis dissented in Olmstead, telephones were novel and not in widespread personal use. It would be 39 years before the Supreme Court accepted Brandeis’ dissent as properly encapsulating the understanding of the framers when it characterized surveillance as a search.
Stated differently, the language in the Fourth Amendment, which unambiguously prohibits the government from engaging in warrantless searches and seizures, was not interpreted so as to characterize government surveillance as a search until 1967, when the Supreme Court accepted Brandeis’ rationale. Since then, it is commonplace that the government needs a warrant to engage in surveillance. The warrant is a constitutional bulwark against fishing expeditions, and it requires the courts to defer to privacy.
I offer this brief constitutional history so as to address the abuse of the Fourth Amendment, and the consequences of that abuse. Two weeks ago, the Defense Intelligence Agency — an arm of the Pentagon and one of 16 federal entities that spies on Americans — acknowledged publicly that it uses commercial software to monitor the movements and conversations of those on whom it has chosen to spy. And because it does so without warrants, it spies on whomever it wishes.
It claims that the language of the Fourth Amendment — which protects the right of all people to be secure in their persons, houses, papers and effects — only restrains law enforcement and does not restrain the balance of the government.
Yet, the whole purpose of the Bill of Rights is to recognize that personal liberty stems from our humanity. When Thomas Jefferson wrote the Declaration of Independence, he referred to our rights to life, liberty and the pursuit of happiness as inalienable from our human nature, and as gifts of the Creator.
The Bill of Rights, too, articulates that our rights are natural. The Ninth Amendment expressly commands that the enumeration of certain rights — such as the freedoms of religion, speech and press — shall not be construed by any government to deny or disparage other rights retained by the people.
Among the rights retained by the people — never given away to the states or the federal government — and thus protected by the Ninth Amendment, and since 1967 by the Fourth, is the right to privacy. The Olmstead decision focused narrowly on whether listening to someone’s telephone conversations without a warrant is as unconstitutional as rummaging through the person’s papers and effects without a warrant.
Brandeis understood that true happiness can only come from the exercise of personal liberty, and James Madison understood this when he wrote the Fourth Amendment. This understanding, as recognized by the courts today, is that the right to privacy protects intellectual activities, beliefs, thoughts, emotions, sensations, and private communications about them.
Who could be happy under a state of surveillance? Privacy is natural — there are things we all do that are none of the government’s business. Surveillance is totalitarian. It is the manifestation of the tyrant’s wish to know all about a potential opponent.
The whole purpose of the Bill of Rights is to keep the government at bay — off the people’s backs, as Justice William O. Douglas wrote — thereby protecting our natural state of freedom so that we can pursue happiness.
The Declaration of Independence underscores, and the Bill of Rights protects, the right to pursue happiness for individuals, not for governments.
Who can be happy while being observed by the government? A watched person changes behavior and loses liberty on account of being watched. The liberty to make unfettered choices, the right to shake a metaphorical fist in the tyrant’s face, the personal power to ignore what the government expects are all dissipated.
A watched person hesitates to exercise freedom. The more the government gets away with surveillance without warrants, the more people will accept the servitude it brings.
Personal freedom is the unfettered power to exercise natural rights without the approval of the government or the consent of any other person. It is the means to happiness. Yet, because we live in a society in which we need the government’s permission to do nearly anything, is it any wonder that the government wants to know everything about us?
The government that spies continuously has large ears and insatiable eyes. And on its face there is no smile.