ConfirmThem

By AndrewHyman Posted in Analysis and Predictions — Comments (0) / Email this page » / Leave a comment »

Earlier today, I was reading over John McCain's excellent speech in 1987 supporting the Bork nomination (hat tip to Powerline). After McCain's speech, Senator Lloyd Bentsen explained his opposition to the Bork nomination, and Bentsen said: "I happen to agree with a former Supreme Court Justice named Louis Brandeis that the makers of the Constitution 'conferred, as against the government, the right to be let alone---the most comprehensive of rights and the right most valued by civilized men.'" But did Bentsen really understand what Brandeis was actually saying? I doubt it. Even nowadays, this quote from Brandeis is often cited (by people like Senator Biden) as a reason to obstruct and hound and filibuster judicial nominees. Here's what Brandeis said in his 1928 dissent in Olmstead v. United States:

They [the framers] conferred, as against the government, the right to be let alone---the most comprehensive of rights and the right most valued by civilized men. To protect, that right, every unjustifiable intrusion by the government upon the privacy of the individual, whatever the means employed, must be deemed a violation of the Fourth Amendment. (emphasis added)

Brandeis didn't mean that judges have discretion to constitutionally protect wife-beating, abortion, and other harmful acts that are performed in private.

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Brandeis said he borrowed the notion of a right "to be let alone" from an 1888 treatise by Thomas Cooley, and Cooley definitely wasn't talking about any right to commit violence in the privacy of your attic (or in your Austrian basement). Cooley wrote:

The right to one's person may be said to be a right of complete immunity: to be let alone. The corresponding duty is, not to inflict an injury, and not, within such proximity as might render it successful, to attempt the infliction of an injury. (Emphasis added)

So, Brandeis was saying (in his Olmstead dissent) that the Fourth Amendment prohibits criminalization of behavior that occurs in private if it's victimless behavior. I bet Sen. Bentsen didn't realize that in 1987, and Sen. Biden doesn't realize it today. Still, that view of Brandeis is a very radical view; lots of so-called victimless crimes remain illegal (heroin use, adult incest, et cetera). What did Oliver Wendell Holmes have to say about this theory of Brandeis in the Olmstead case? Holmes politely refused to go along: "I am not prepared to say that the penumbra of the Fourth and Fifth Amendments covers the defendant…" Good for Holmes!

Oliver Wendell Holmes had long been on record opposing the legalization of victimless crimes. The following is from Holmes' dissent in Lochner v. New York:

The liberty of the citizen to do as he likes so long as he does not interfere with the liberty of others to do the same, which has been a shibboleth for some well-known writers, is interfered with by school laws, by the Post Office, by every state or municipal institution which takes his money for purposes thought desirable, whether he likes it or not.

I'm definitely with Holmes here. The Fourth Amendment already does an immense amount of work, without turning it into a license for judges to pick and choose what private activities should never be punished. The Fourth Amendment deals with the gathering of evidence and how suspects are arrested. Whether punishment is appropriate comes under the heading of another Amendment entirely: the Eighth.

UPDATE (5/8/2008): I should mention that I entirely agree with both Holmes and Brandeis that Olmstead was wrongly decided. As for whether the Fourth Amendment applies to wiretapping, it seems well-settled that it does, given that wire-tapping is a form of evidence-gathering.