Archives for December 2013
I am very excited to announce that John O. McGinnis, the George C. Dix Professor in Constitutional Law at Northwestern University, will be joining the Liberty Law Blog on a full-time basis in 2014. Regular readers of this site will recognize McGinnis' earlier contributions to this site on Harold Berman and my podcast with him on his recent book Accelerating Democracy (Princeton 2012). McGinnis is also the co-author with Mike Rappaport of Originalism and the Good Constitution (Harvard 2013). He is a graduate of Harvard College, Balliol College, Oxford, and Harvard Law School. He has published in leading law reviews, including…
This is an interesting piece by Derek Khanna, who wrote the famous memo for the House Republican Study Committee that was critical of excessive copyright and was withdrawn. Khanna discusses the history of copyright enforcement and how it almost ended up prohibiting the VCR. This is an important story that needs to be better known outside of the copyright community. I am quite sympathetic to much of what Khanna says here and I agree with his apparent intention to move the Republican Party from its attachment to excessive copyright protection. That said, I wonder about one aspect of his story. Khanna writes: Legislation…
This edition of Liberty Law Talk is with Yuval Levin, author of The Great Debate: Edmund Burke, Thomas Paine, and the Birth of Right and Left. A 2013 Bradley Prize recipient, Levin connects us with the actual contest between Burke and Paine as they debated the central claims of the French Revolution and much of modern political thought with its focus on rights, individualism, the social contract vs. Burke's more expansive notions of social liberty, the contract among the dead, the living, and those yet to be born, and his belief in prescription or the notion that change should be…
McCarthy argues that the Framers would not have wanted the courts reviewing national security decisions, such as whether the executive had a good-faith national-security purpose for the search. But as I noted in my prior post, the Constitution through the Fourth Amendment authorizes the courts to make these decisions if a citizen is being searched as to his home or other place within the scope of the Fourth Amendment.
McCarthy appears to want to distinguish these cases from the NSA programs by claiming that the NSA programs do not effect constitutionally protected searches. While that may be true under existing Supreme Court precedent, he makes a claim about the Framers and that raises different questions. Two Supreme Court doctrines suggest that these searches do not implicate the Fourth Amendment. One is the third party doctrine, which suggests that records held of phone calls by a cell phone company are not protected by the Fourth Amendment. Another is the related doctrine concerning metadata, such as your phone number or the phone number you called, that asserts such data are not protected by the Fourth Amendment.
The Washington Post’s Dan Balz is a well-informed observer of (among other things) political polarization among states. One of his earlier pieces is here along with a few comments by yours truly. Yesterday’s Post has another long-front page Balz article on the subject, along with a companion piece on Texas and California –mega-states that have adopted very different social models.
The Supreme Court will ultimately have to resolve the competing rulings, Friday’s from the Southern District of New York and the previous week’s from the D.C. District Court, on the NSA metadata program. Both are well reasoned; this issue is not constitutionally obvious, and bombast from either side will not be helpful in resolving it. But neither will emotional appeals to 9/11 such as the one with which Judge William Pauley opened his ruling upholding the program:
The September 11th terrorist attacks revealed, in the starkest terms, just how dangerous and interconnected the world is. While Americans depended on technology for the conveniences of modern life, al-Qaeda plotted in a seventh-century milieu to use that technology against us. It was a bold jujitsu. And it succeeded because conventional intelligence gathering could not detect diffuse filaments connecting al-Qaeda.
There are multiple reasons this retrospective appeal to 9/11 is unpersuasive. Regardless, the issue policymakers are going to have to confront sooner or later is whether the potential for terrorism is actually sufficiently large and unique to justify the potential cost to liberty imposed by this policy.
When you read that NSA’s capting and sorting most telephone and internet traffic is “America’s main remaining advantage over terror networks,” (the Wall Street Journal editorial, Dec. 17) or that “The effectiveness of data mining is proportionate to the size of the sample” (ibid, June 10), you should know that the writers are as ignorant of what technologies make signals intelligence effective as they are careless of our liberties. Ignorantly, they have swallowed the propaganda of co-dependent bureaucrats at NSA and in industry. Unwittingly, they are lending themselves to corruption, paid for by intrusion and inefficiency.
This is a sad story. The Marines have postponed applying a rule, enforced for more than 40 years, that requires marines to be able to do 3 pull ups. While the story does not indicate what will happen in the future, we know from other areas, such as police and fire departments, that the effort to increase female participation has led to the reduction in strength qualifications.
If one favors equal rights for women (or for any other group), then one wants to see both sexes subject to the same rules. One does not want the qualifications changed so that more women can pass the test. The original argument for equality was that some women could do the job as well as the men who became marines. That is a valid argument, but it does not justify reducing the qualifications. In fact, it condemns it.
Unfortunately, we now live in a world where women’s equality is seen as a justification for reducing the standards. Assuming the original standards were valid – and it is hard to see how upper body strength is not an essential attribute for marines or firefighters – reducing them will only reduce the effectiveness of the operation (and will likely force those who have the requisite strength to work harder to compensate for those who lack it).
Benjamin Radcliff of the University of Notre Dame appeared in The Washington Post this week to discuss his recent book The Political Economy of Human Happiness, which looks interesting except that Tocqueville already wrote it. Radcliff’s thesis, backed, he says, by hard data gathered from stable democracies, is that bigger governments lead to happier people. His conclusion is that bigger governments are therefore advisable. QED, the purpose of government is to make people happy. For the sake of argument, grant him step one. Steps two and three need work.