BRANDEIS FOR THE AGES

“The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.”

Querry: The foregoing is

1. Just a bunch a hooey.

2. The Fourth Amendment to the Constitution of the United States.

3. The ramblings of an activist judge.

4. The preamble to the constitution of the former Soviet Union.


President Bush answered 3 until Dick Cheeney advised him to switch to 4.
Don Rumsfeld answered 1.

In OLMSTEAD v. UNITED STATES, 277 U.S. 438 (1928) the US Supreme Court first dealt with the issue of the Fourth Amendment and wiretapping. The opinion by Chief Justice Taft is no longer law, but the dissenting opinion written by Justice Brandeis is one of the greats of all time, astounding in its scope and its prescience. It is just as applicable today as when it was written in 1928.

Justice Holmes first dissented and called wiretapping a “dirty business”.
Holmes framed the issue as a problem between allowing the government to break the law to catch criminals. Once framed, Holmes decision was easy.

But Justice Brandeis had bigger game in mind.

Brandeis was writing for the ages. And his topic was liberty and the defense of the individual.

First Brandeis tackled the issue of original intent and how the Constitution should be interpreted. The writing is clear and logical and would automatically exclude him today from an appointment to the Supreme Court and probably the County Court in Florida as well.

Brandeis dismisses the conservative view that original intent must guide the interpretation of the Constitution: " 'We must never forget,' said Mr. Chief Justice Marshall in McCulloch v. Maryland, 4 Wheat. 316, 407, 'that it is a constitution we are expounding.' Since then, this Court has repeatedly sustained the exercise of power by Congress, under various clauses of that instrument, over objects of which theFathers could not have dreamed.” Id 472.

The issue does not seem so hard when Brandeis analyzes it. Of course it helps to be able to quote Chief Justice John Marshall.

“Time works changes, brings into existence new conditions and purposes. Therefore a principle to be vital must be capable of wider application than the mischief which gave it birth. This is peculiarly true of constitutions. They are not ephemeral enactments, designed to meet passing occasions. They are, to use the words of Chief Justice Marshall `designed to approach immortality as nearly as human institutions can approach it.' The future is their care and provision for events of good and badtendencies of which no prophecy can be made. In the application of a constitution, therefore, our contemplation cannot be only of what has been but of what may be. Under any other rule a constitution would indeed be as easy of application as it wouldbe deficient in efficacy and power. Its general principles would have little value and be converted by precedent into impotent andlifeless formulas. Rights declared in words might be lost in reality." Id. 473.

Brandeis continued by noting that when the 4th Amendment was adopted, “force and violence” were the only means used by the government that the amendment was designed to protect against. But Brandeis recognized that over the course of time, threats to liberty change and evolve:

“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.” Id. 474. .. Moreover, in the application of a constitution, our contemplation cannot be only of what has been but of what maybe. The progress of science in furnishing the Government with means of espionage is not likely to stop with wire-tapping. Ways may some day be developed by which the Government, without removing papers from secret drawers, can reproduce them in court,and by which it will be enabled to expose to a jury the most intimate occurrences of the home. Advances in the psychic and related sciences may bring means of exploring unexpressed beliefs, thoughts and emotions. 'That places the liberty of everyman in the hands of every petty officer" was said by James Otisof much lesser intrusions than these.'

While we are sure President Geo. Bush was not the “petty officer” referred to, the prescience of this opinion is amazing.

Brandeis then sought to bolster his reasoning with stare decisis: Citing Boyd v. United States, 116 U.S. 616 , 627-630, and calling it ' a case that will be remembered as long as civil liberty lives in the United States' Brandeis cited a case cited in Boyd:

“It is not the breaking of his doors, and the rummaging of his drawers, that constitutes the essence of the offence; but it is the invasion of his indefeasible right of personal security, personal liberty and private property, where that right has never been forfeited by his conviction of some public offence, — it is the invasion of this sacred right which underlies and constitutes the essence of Lord Camden's judgment.”Id. 475

With the framework properly laid, now it was time for Brandeis to write for the liberty of the day, and to protect the unforeseen threats to liberty in the future:

"The protection guaranteed by the Amendments is much broader in scope. 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. 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. And the use, as evidence in a criminal proceeding, of facts ascertained by such intrusion must be deemed a violation of the Fifth.Id. 479.

Brandeis then set to warn future generations of the real threat to liberty. These are the words that need to be read and re-read today:

"Experience should teach us to be most on our guard to protect liberty when the Government's purposes are beneficent. Men born to freedom are naturally alert to repel invasion oftheir liberty by evil-minded rulers. The greatest dangers to liberty lurk in insidious encroachment by men of zeal,well-meaning but without understanding.

In the present day analysis, the greatest danger to our liberty is not Al Queda, but Bush, Cheeney and Rumsfeld who tell us to trust them as they erode our rights to privacy and use Karl Rove to crumble the Fourth Amendment like he crushed Senator Kerry.

Brandeis concluded with his famous peroration that is as much or more applicable today then it was in 1928:

"Decency, security and liberty alike demand that government officials shall be subjected to the same rules of conduct thatare commands to the citizen. In a government of laws, existence of the government will be imperilled if it fails to observe the law scrupulously. Our Government is the potent, the omnipresent teacher. For good or for ill, it teaches the whole people by its example.

Crime is contagious. If the Government becomes a law breaker, it breeds contempt for law; it invites every man to become a law unto himself; it invites anarchy.

To declare that in the administration of the criminal law the end justifies the means — to declare that the Government may commit crimes in ordert o secure the conviction of a private criminal — would bring terrible retribution. Against that pernicious doctrine this Court should resolutely set its face.

Wow. It doesn't get any better than that.

Of course, as we have previously quoted our learned and wise president, regarding the Fourth Amendment: “it don’t apply if you ain’t read it.”

Will anyone in the Justice Department bother to read Brandeis in Olmstead?

We think not. They don’t like what he had to say.


See you in court defending the Fourth Amendment.