The Circuit: Washington University Undergraduate Law Journal

THE CIRCUIT WAS H I N G T O N U N I V E R S I TY U N D E R G RAD UAT E LAW J O U R NAL

VOLUME I, ISSUE I

SPRING 2011

THE CIRCUIT WA S H I N G TO N U N I V E R S I T Y U N D E R G R A D U AT E L AW J O U R N A L

VOLUME I, ISSUE I S P R I N G 2 0 11

The Circuit: Washington University Undergraduate Law Journal is an interdisciplinary publication comprised of student essays that grapple with law, legal concepts, institutions or issues from any time period or place. The mission of the publication is to promote greater understanding of the legal puzzles that face or have faced the nation and globe. It aims to reward undergraduates beyond the classroom for their intellectual explorations and advancement of law-related knowledge.

We welcome essays written for any course, from any semester, from all Washington University undergraduates, regardless of academic division, major, minor or year.

Essays are evaluated on the following criteria: Quality of analysis Clarity of structure Originality of thought Concision of language Voice Copyright 2011 The Circuit: Washington University Undergraduate Law Journal Volume I, Issue I All rights reserved.

Printed by Midtown Printing Compnay For more information or to request issues of the print version: circuitjournal@gmail.com www.prelawsociety.wustl.edu/circuit.html

Contents The Path Forward

Weighing Alternative Dispute Resolution, Jury Reform and Equal Access to the Law Daniel Weltman

Regulating Weapons

Second Amendment Gun Control in McDonald v. Chicago (2010) Elyse Kallen

A Restricted Right

Privacy, Abortion and Minors in the Context of Griswold v. Connecticut (1965) Daniel Aldrich

Dangerous Thoughts

Ideological Exclusion, National Security and Civil Liberties Divya Moolchandani

The Invasion of Technology Warrantless Government Monitor Tracking in the Digital Age Kevin Rosendahl

6 15 30 45 54

Editorial Board Editor-in-Chief and Founder Aaron Kacel

Associate Editors

Jun Yoon Jonathan Kovacs Luke Schiel Annie Houghton-Larsen

Line Editors Annie Racine John Rostom Stacy Yae Robert Knapel

Layout Editors

John Rostom Michelle Turgeon Wenxin “Sylvia� Wang

Faculty Advisor

David T. Konig, Professor of History and Law

Donors College of Arts and Sciences Office of Undergraduate Research Legal Studies Program Student Union

Editor’s Note Dear Reader, On behalf of the editorial board, I am thrilled to present the inaugural issue of The Circuit. The idea for the publication began as a summer daydream and has since blossomed into a full-fledged scholarly venture.

The inspiration behind our name comes from the process of judges “riding the circuit” in the early days of the American republic. As judges circulated from one region to the next, presiding over cases, they continuously advanced and enriched legal knowledge, which is precisely what we hope to accomplish.

The student essays included in this issue wrestle with some of today’s most controversial issues, from technology’s degradation of privacy, to young girls and abortion, gun control, racial profiling of presumed terrorists and the shortcomings of the American justice system.

Whether you read all essays or just one, we hope you will leave with a heightened awareness of the legal forces, both formal and informal, that govern our everyday lives. We hope the essays inspire you to rethink your views on the larger legal system in which we all coexist.

I would like to thank my fellow editors for their tireless work in bringing this journal to fruition. We have truly worked as a team to ensure its success. I would also like to thank Professor Konig for his invaluable support. His expertise and encouraging spirit have played an integral role in the journal’s execution. Lastly, I would like to thank Dean McLeod with the College of Arts and Sciences and Ms. Sobotka with the Office of Undergraduate Research for their financial support. Thank you for taking a chance on us.

Without further delay, please enjoy this first issue of The Circuit.

Best, Aaron Kacel Editor-in-Chief and Founder

The Path Forward

Alternative Dispute Resolution, Jury Reform and Equal Access to the Law

D aniel W eltman

College of Arts & Sciences, 2011 The Legal Landscape in a Changing American Society Professor Marvin Cummins

Abstract This paper examines three suggested changes to the American justice system: increased use of alternative dispute resolution methods, changes to the jury system and efforts to expand access to justice. It argues that the system should focus on expanding access to justice for three reasons. First, it is not clear that alternative dispute resolution is a preferable avenue to traditional adversarial legalism. Because America offers the only opportunity for experimenting with the adversarial system, and because adversarial justice has not been given a chance to operate effectively in a way that would promote a proper assessment, it would be hasty to decide the matter in favor of alternative dispute resolution. Second, jury reform cannot be accomplished until there are clearer ideas about what a reformed jury ought to look like.

Third, the concept of adversarial justice requires equal access to the law.

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The legal landscape in America is undergoing a wide variety of changes. The number of cases that go to trial is decreasing while methods of alternative dispute resolution such as arbitration become increasingly popular; some states have begun to reform aspects of their jury system; and the eternal struggle to bring greater equality of access to the law has resulted in efforts to expand legal service to parts of America that are generally priced out of such services.1 Such widespread change, although it is almost comprehensive in terms of the areas it touches, does not stem from one source. The philosophies behind these three sources of change are different, and in some cases are nearly diametrically opposed. While there are powerful arguments for advocating some or all of the changes currently underway, the impossibility of pursuing every possible solution to every possible problem necessitates a choice. With regard to determining priority for resource allocation, expanding access to the legal system should be the first and foremost subject of our efforts over and above efforts to expand alternative dispute resolution or reform the jury system.

The Roots of Alternative Dispute Resolution

Alternative dispute resolution (ADR), the practice of settling legal issues through arbitration and mediation rather than litigation, has the most complex roots, and some of these roots contain ambitious goals.

The impetus for the move towards ADR stems from both mundane dissatisfaction with the expensive nature of American courts to deeper philosophical disputes over the proper way to resolve disputes in our society.2 Importantly, advocates for change exist at all locations across the spectrum rather than just at the extremes. At one end are overworked judges who prefer settlement and ADR for cases that would be more resourceintensive if they went through the whole trial process.3 Judges and those like them might not inherently prefer ADR, and in a perfect world might have no problem with every dispute being worked out through a trial, but the reality of the current legal system means that the expense and time necessary to litigate is simply too much for many cases.4 The incentive for a judge to move a case they can barely handle over to ADR pushes the entire system towards this method of resolving disputes. Also in this category are companies that put binding arbitration clauses into contracts.

Although their goal is not to move the entire legal system towards ADR

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and away from traditional trials, the result is the same.5,6 The increasing use of ADR, even if its proponents do not have any ideological commitment to it, makes the entire system move in that direction.

More committed to ADR than the harried judges are those who feel that ADR is a faster, cheaper alternative to trials and is therefore inherently desirable for that reason, and those who feel that ADR is a superior way to resolve certain kinds of disputes.7,8 Former United States Supreme Court Chief Justice Burger, who in many ways began the widespread use of ADR with his speech at the Pound Conference, could be seen as a member of this category.9 Those who advocate for systems like problem solving courts or mediation for divorce cases are similarly aligned.10,11,12 Other places where ADR is pushed include areas like claims resolution, which are similar to worker’s comp boards.13 Members of this group feel that ADR is more appropriate for some or for many situations, but sees it as an alternative method of dispute resolution rather than a replacement for the legal system.14

The most radical view, held by those who, despite the name, see ADR not as an alternative but as a primary means of resolving dispute, could be attributed to those like Carrie Menkel-Meadow.15 She and others like her have large problems with not only the reality but the ideology of the American court system’s place in dispute resolution. These advocates of ADR dislike the idea of adversarial legalism, with its attendant norms of combative representation, reduction of complex problems into binaries, and its tendency to discount the multiple viable viewpoints that various actors can have about what the legal system deems “facts.” They would prefer to see the adversarial system largely displaced by mediation and arbitration.

The Roots of Jury Reform

Jury reform’s roots are nearly as complex, but for different reasons. Jury reform has proceeded on a haphazard basis, a result of widely dispersed power over juries, conflicting beliefs and ideals about the role of the jury in the American trial, confusion over what reforms would help, and a general lack of a coherent approach.16,17 In some ways, it is the opposite of ADR, because jury reform focuses on the existing system of jury trials. In terms of the underlying support, though, the wide variety of sources of change in the jury system are less coherent than the spec-

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trum of weak to strong support for ADR that characterizes that ongoing shift.18

Specific empirical knowledge about the jury is scarce, anecdotal, sometimes conflicting, and generally sparse to the degree that it cannot wholly provide the kind of certainty that would allow one to propose a fixed set of changes to juries in order to solve a fixed set of problems.

19,20 The American public is mistaken about the awards that juries give, about the degree to which juries agree with what a judge would have decided, and about the general tendencies of juries to decide for or against a plaintiff or to believe an expert witness.21,22,23 According to polling data, juries are seen as good, bad, and everywhere in between, depending on where one looks and who one asks.24,25 On top of this, there is no widespread agreement over what aspects of a jury are bad and what are good: a change to juries that makes them more likely to render higher punitive damages in certain cases would almost certainly be seen as good and bad in equal degrees by those on either side of the issue.26,27 Even when a certain issue can be isolated and approached, when it has been decided that some aspect of jury duty needs adjustment, it is not always clear how this change should be implemented.28,29 The Roots of Equal Access to Justice

The source of the push for equal access to justice is nowhere near as varied as the causes of the movement towards ADR or as confused and scattered as are the sources of jury reform.30 Other than the obvious worry of an overworked legal system and the just as obvious worry that legal aid is comparatively less useful than its monetary equivalent in other aid, there are few indeed are who would argue that there should not be an opportunity for all American citizens to exercise their legal rights.31 In specific instances, like tort cases or lawsuits against businesses or the government for discrimination, there are clearly reasons for some to oppose an increase in ease of and access to litigation, but overall, the notion that justice should be available to everyone and not just to those rich enough to afford a lawyer is nearly universal.32,33 Although the specifics of the provision of justice to the lower and middle classes often results in significant opposition, the basic ideology has no challengers outside of those who take on adversarial legalism itself, such as the aforementioned strong advocates of ADR. It is largely because expanding legal access is

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expensive and hard to implement that the otherwise nearly universal ideal does not find itself more widely expressed in policy.34 Legal Access Should be the Top Priority

It is clear that in the more extreme cases, change that supports ADR is diametrically opposed to change that reforms the jury system or, even worse in the eyes of those who disagree with adversarial legalism in general, change that increases the number of trials. In deciding which of these three alterations to the legal system to pledge resources to, then, the first choice must be between adversarial legalism as a whole and alternative dispute resolution. One can support ADR without simultaneously wishing to dismantle the traditional American system of justice, but choosing to make increased use of ADR a top priority at the expense of reforming juries or increasing access to justice inevitably means that adversarial legalism as a method of resolving disputes will be weakened and that ADR will be strengthened.35 Whether the objective is just to remove unnecessary cases from an overworked legal system or to move away from that legal system altogether, making ADR the number one priority accomplishes the same thing in both cases.

To make the case for ADR requires a demonstration that adversarial legalism itself is deficient, because to hold otherwise is to stack the deck against adversarial legalism. To do this, one can argue that the combative, adversarial approach to justice is unnecessarily damaging, not conducive to the discovery of truth or to the resolution of problems, needlessly complex or expensive, or flawed in various other ways. There have been well-reasoned arguments both for and against these conclusions and there is likely to be disagreement for as long as adversarial legalism exists. In light of this, there are reasons for favoring adversarial legalism over ADR, and these reasons further recommend access to justice as the prime target for resources.

The first reason to choose to advocate jury reform or access to justice over expanded ADR is America’s place in the world. America is the largest country committed to adversarial legalism. It is the foremost example of adversarial legalism and likely to be the only possible country that can and will significantly commit to and implement adversarial justice on a large scale for problem solving.36 Theories will always argue both for the adoption and for the elimination of adversarial legalism: the

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only good way to produce a basis upon which to make a decision is to be able to choose between the two options in practice. America presents the only real opportunity for choosing adversarial legalism, and therefore, barring any sort of consensus as to the desirability of ADR over the adversary system, adversarial legalism should be given the chance to succeed before the decision is made.37

If adversarial justice is worth choosing over ADR, then, it only makes sense that this route should be chosen precisely for the benefits traditionally ascribed to adversarial legalism. This allows a decision on the merits of adversarial legalism versus ADR to be effectively made.

Many if not most of these benefits only result from a system that truly embraces adversarial legalism not only as a method for resolving individual disputes but as a source of significant social change. Perhaps on a case by case basis, mediation is in fact often preferable to a trial for a multitude of reasons, but the difference between secret, sealed arbitration outcomes and public decisions by a court are clear in terms of their respective effects on society.38 Adversarial legalism relies on civil suits and decisions from juries and judges to push the law forward and to change society.39 Pollution is kept in check by litigation from environmental group as much as it is by government regulation. Businesses recall their dangerous products for fear of lawsuits rather than from fear of regulators. The government reforms its prisons or its hiring practices because of suits alleging misconduct.40

These benefits, though, arise only from a complete, functioning adversarial system. Few indeed are the companies cowed by fear of being sued if they can bury their opponents in court costs and prolong the trial to force a settlement.41 The government need not heed possible lawsuits from the poor and disenfranchised concerning the distribution of benefits if the poor and disenfranchised have no means by which to bring their grievances before a court in the form of a lawsuit. For adversarial legalism to work as something more than a complicated, ponderous, expensive means of getting two parties to stop arguing, everyone must have a fair chance to be a part of it. For this reason, then, expanded access to justice is greatly preferable to jury reform in terms of providing the sort of benefit that adversarial justice is meant to provide.

This is also another reason for choosing adversarial justice over ADR in the first place: access to justice is clearly not equal, and to give primacy to ADR over adversarial legalism when adversarial legalism is

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clearly crippled by a lack of access to justice itself is to stack the deck for ADR. How many of the problems in the system are inherent is a question that is unclear compared to the clear problems that result from a lack of access to justice. Furthermore, if access to justice is unequal, the effect of jury reform will necessarily be limited. Even if this problem could be solved, there still exists the problem that the question of whether jury reforms are effective or even properly designed to be effective. Designing effective jury reform programs necessitates measures effectiveness and some understanding of how to achieve improvement on these measure.

There is no clear answer or consensus on either issue. These questions are not intractable, but they clearly show that the value of reforming juries at this time is not just limited, but perhaps unachievable or unknowable.

It is the access issue, though, that is of foremost importance in choosing between jury reform and access to justice when allocating efforts and resources. To move with all deliberate speed towards a new kind of jury helps little when those who wish to have access to that jury must often go without. Even a perfect system of justice cannot be perfect if it is not universally applied; indeed, the concept of unequal justice is itself an oxymoron, because the American conception of adversarial legalism is based as much on the equality of all in the eyes of the law as it is on any other precept. Adversarial legalism must be universal and accessible if it is to effectively function.42 Conclusion

There are compelling reasons to work towards all of these reforms. Regardless of the merits of adversarial legalism versus alternative dispute resolution, there is little question that the overcrowded, overscheduled, and overworked courts could benefit from a reduction of cases to try, especially when it comes to cases particularly well suited to ADR. Indeed, increased access to justice will only exacerbate the problems that the courts encounter in terms of case load.43 While this might simply be an argument for a massive investment in the infrastructure of justice, it is not clear that a blanket ban on the expansion of ADR is necessary in order to properly evaluate whether true adversarial legalism can be effective. In fact, ADR might end up playing an integral part in the process of litigation, rather than eliminating the courts. 44,45,46,47 Similarly,

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jury reform is an essential component of ensuring that the new wave of litigation afforded by equal access to justice results in systemic changes rather than contradictory conclusions. Both of these needs are secondary, however, to providing the kind of access to justice that would allow adversarial legalism a chance to function as it is intended to, as a means for everyone to exert their rights under the law and, in doing so, shape a society that more closely conforms to prevailing notions of justice.

Notes * I would like to thank Professor Cummins, who, by assigning many of the articles cited and the topic itself as part of his class on the changing legal landscape of America, had a crucial role in the creation of this paper.

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Mark Galanter, A World Without Trials?, 2006 J. Disp. Resol. 7 (2006) Carrie Menkel-Meadow, Whose Dispute Is It Anyway: A Philosophical and Democratic Defense of Settlement (In Some Cases), 83 Geo L.J. 2663 (1994-1995) Patrick Higginbotham, So Why Do We Call Them Trial Courts?, 55 S.M.U. L. Rev. 1405 (2002) Kenneth Rigby, Alternate Dispute Resolution, 44 La. L. Rev. 1725 (1983-1984) Jean R. Sternlight, Panacea or Corporate Tool?: Debunking the Supreme Court’s Preference for Binding Arbitration, 74 Wash. U. L. Q. 637 (1996) Jean R. Sternlight, Mandatory Binding Arbitration and the Demise of the Seventh Amendment Right to a Jury Trial, 15 Ohio St. J. Disp. Resol. 669 (2000-2001) Frank Sander, The Future of ADR, 2000 J. Disp. Resol. 3 (2000) Jeffrey Senger, Turning the Ship of State, 2000 J. Disp. Resol.79 (2000) Warren E. Burger, Agenda for 2000 A.D. - A Need for System Anticipation, Address Delivered at the National Conference on the Causes of Popular Dissatisfaction with the Administration of Justice, 70 F.R.D. 83 (1976) James Henry, More Changes Coming, 27 Alt. High. Cost. Litig.1 (2009) Pamela Casey and David Rottman, Problem-Solving Courts: Models and Trends, 26 Just. Sys. J. 35 (2005) David Rottman, Does Effective Therapeutic Justice Require Specialized Courts (and Do Specialized Courts Imply Specialist Judges)? 37 Court Review 22 (2000) Deborah Hensler, Alternative Courts? Litigation-Induced Claims Resolution Facilities, 57 Stan. L. Rev. 1429 (2005) Frank Sander, Keep Building ADR, 27 Alt. High. Cost. Litig. 1 (2009) Carrie Menkel-Meadow, The Trouble With the Adversary System in a Postmodern, Multicultural World, 38 Wm. & Mary L. Rev. 5 (1996) Shari Seidman Diamond, Beyond Fantasy and Nightmare: A Portrait of the Jury, 54 Buff. L. Rev. 717 (2006) Phoebe Ellsworth, Jury Reform at the End of the Century: Real 17 Agreement, Real Changes, 32 U. Mich. J. L. Reform 216 (1998-1999) Paula Hannaford-Agor and Chris Connelly, Jury Innovation in Practice: The Experience in New York and Elsewhere, 78 NY SBA Journal 19 (2006) Marc Galanter, An Oil Strike in Hell: Contemporary Legends About the Civil Justice System, 40 Ariz. L. Rev. 717 (1998) Marc Galanter, Real World Torts: An Antidote to Anecdote, 55 Md. L. Rev. 1093 (1996) Neil Vidmar, Medical Malpractice Lawsuits: An Essay on Patient Interests, The Contingency Fee System, Juries, and Social Policy, 38 Loy. L. A. L. Rev. 1217 (2005)

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22. Neil Vidmar and Shari Seidman Diamond, Juries and Expert Evidence, 66 Brook. L. Rev. 1121 (2001) 23. Shari Seidman Diamond, Truth, Justice, and the Jury, 26 Harv. J. L. & Pub. Pol’y 143 (2003) 24. Valerie Hans, Deliberation and Dissent: 12 Angry Men Versus the Empirical Reality of Juries, 82 Chi.-Kent L. Rev. 579 (2007) 25. Valerie Hans and Stephanie Albertson, Empirical Research and Civil Jury Reform, 78 Notre Dame L. Rev. 1500 (2002-2003) 26. Neil Vidmar, Felicia Gross, and Mary Rose, Jury Awards for Medical Malpractice and PostVerdict Adjustments of Those Rewards, 47 DePaul L. Rev. 265 (1998-1999) 27. Samuel Gross and Kent Syverud, Don’t Try: Civil Jury Verdicts in a System Geared to Settlement, 44 UCLA L. Rev. 1 (1996-1997) 28. Graham Lilly, The Decline of the American Jury, 72 U. Colo. L. Rev. 53 (2001) 29. Kenneth Klein, Unpacking the Jury Box, 47 Hasting L.J 1325 (1996) 30. Lua Yuille, No One’s Perfect (Not Even Close): Reevaluating Access to Justice in the United States and Western Europe, 42 Colum. J. Transnatl’l L. 863 (2004) 31. Gary Blasi, How Much Access? How Much Justice?, 73 Fordham L. Rev. 865 (2004) 32. Stephen Yeazell, Socializing Law, Privatizing law, Monopolizing Law, Accessing Law, 39 Loy. L. A. L. Rev. 691 (2006) 33. Deborah Rhode, Frivolous Litigation and Civil Justice Reform: Miscasting the Problem, Recasting the Solution, 54 Duke L.J. 447 (2004) 34. Katia Cerovsek and Kathleen Kerr, Opening the Doors to Justice: Overcoming the Problem of Inadequate Representation for the Indigent, 17 Geo. J. Legal Ethics 697 (2004) 35. Or one can do so and yet still prefer the adversary system in some cases, as pointed out by Monroe Freedman, The Trouble with Postmodern Zeal, 38 Wm. & Mary L. Rev. 68 (1996) 36. Stephen Landsman, The Adversary System: A Description and Defense (1984) 37. Robert Kagan, Adversarial Legalism: The American Way of Law (2001) 38. William Stuntz, Plea Bargaining and Criminal Law’s Disappearing Shadow, 117 Harv. L. Rev. 2548 (2004) 39. Owen Fiss, Against Settlement, 93 Yale L.J. 1073 (1984) 40. Lawrence Friedman, Law in America: A Short History (2004) 41. Mark Galanter, Planet of the APs: Reflections on the Scale of Law and its Users, 53 Buff. L. Rev. 1369 (2006) 42. Deborah Rhode, Equal Justice Under Law: Connecting Principle to Practice, 12 Wash. U. J.L. & Pol’y 47 (2003) 43. Russell Pearce, Redressing Inequality in the Market for Justice: Why Access to Lawyers Will Never Solve the Problem and Why Rethinking the Role of Judges Will Help, 73 Fordham L. Rev. 969 (2004) 44. Arthur Pearlstein, Foreword: Pretrial Litigation, Dispute Resolution, and the Rarity of Trial, 40 Creighton L. Rev. 651 (2007) 45. Deborah Hensler, Our Courts, Ourselves: How the Alternative Dispute Resolution Movement is Reshaping Our Legal System, 108 Penn St. L. Rev. 165 (2003) 46. Kirk Schuler, ADR’s Biggest Compromise, 54 Drake L. Rev. 751 (2006) 47. Stephan Landsman, So What? Possible Implications of the Vanishing Trial Phenomenon, 1 J. Empirical Legal Stud. 973 (2004)

Regulating Weapons Second Amendment Gun Control in McDonald v.

Chicago (2010)

E lyse K allen

College of Arts & Sciences, 2011 Courts and Civil Liberties Professor Denise Lieberman

Abstract In 2010, the Supreme Court took on a case involving the city of Chicago’s handgun ban, but the implications of McDonald v. Chicago are much larger. The central question the Court deliberated on was whether or not the Fourteenth Amendment incorporates the right to bear arms and applies it to the states. This paper looks at the facts of the case, potential precedents, the historical context of the Fourteenth Amendment, and various judicial doctrines. It concludes that the Due Process clause does not apply the Second Amendment to the states. This paper is written in the style of a Supreme Court decision. It was completed before the Supreme Court used different reasoning to come to the opposite conclusion in June of 2010.

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In 1982, the city of Chicago created laws tightening its gun control regulations in light of increased violence.1 The new laws effectively banned handguns from the city and stipulated that other types of guns, including rifles, had to be registered before the owner brought them into the city, and the license had to be renewed every year. Failure to comply with any of these regulations resulted in a gun being “unregisterable” forever.2 A judge could sentence an offender to jail for ten to ninety days or require a $300 to $500 fine. A second offense carried a punishment of a $500 fine with the possibility of ninety days to six months in jail.3

More than twenty-five years after the ban went into effect, both Otis McDonald and David Lawson, residents of Chicago and the petitioners in this case, filed for and were denied permits to own handguns.4 Additionally, Lawson did not reregister one of his rifles after its permit expired; he also bought another rifle and had it shipped to his house before acquiring a permit, which the city did not grant.5 Both petitioners were in violation of Chicago’s law.

The petitioners filed a lawsuit in the district court over the city’s policies on June 26, 2008. In response to a request for summary judgment, the United States District Court for the Northern District of Illinois asked them to more narrowly tailor their argument.6 The petitioners reworked their case and asked that the district court find that the Second Amendment to the United States Constitution applies to the states because of the Privileges or Immunities and Due Process Clauses in the Fourteenth Amendment.7 The district court reheard the case and on December 4, 2008, ruled with the respondent, the city of Chicago. It refused to accept that the Second Amendment was selectively incorporated and relied upon the precedent of the Seventh Circuit Court in Quilici v. Village of Morton Grove (1982).8

Shortly thereafter, the petitioners filed an appeal with the Seventh Circuit Court of Appeals, at which point their case was combined with two cases the National Rifle Association (NRA) had brought against both the cities of Chicago and Oak Park.9,10 The appeals court affirmed the judgment of the lower court on June 2, 2009 because of the Supreme Court’s precedents in United States v. Cruikshank, 92 U.S. 542 (1876), Presser v. Illinois, 116 U.S. 252 (1886), and Miller v. Texas, 153 U.S. 535 (1894).11 The petitioners then applied for and were granted writ of certiorari from the Supreme Court on September 30, 2009.12

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Central Question

The Second Amendment’s right to bear arms and its applicability to the states were both at the heart of this case. The recent decision in District of Columbia v. Heller, 128 S. Ct. 2783 (2008) held that a handgun ban unconstitutionally violates the Second Amendment in areas governed by federal law, but it did not speak to the issue of incorporation, which this case addressed.13 Both sides agreed that the primary question to be answered by the Court is “whether the Second Amendment right to keep and bear arms is incorporated as against the States by the Fourteenth Amendment’s Privileges or Immunities or Due Process Clauses.”14 The answer to this question applied to the fifty states, but the specific subquestion was whether or not Chicago’s handgun ban violates McDonald’s Second Amendment rights.

Arguments

The petitioners’ merit brief began with an examination of the Fourteenth Amendment framers’ intent. It asserted that during Reconstruction, Congress passed both the Civil Rights Act of 1866 and the Freedmen’s Bureau Act in an attempt to protect freed slaves’ rights, explicitly including the right to bear arms.15 When it became clear that the southern states would not respect these liberties, the Fourteenth Amendment was passed to compel them to do so, specifically with the Privileges or Immunities clause.16 The petitioners presented a plethora of historical evidence to argue that both at the time of the Second Amendment’s passage and at the time of the Fourteenth Amendment’s ratification, there was a common understanding among legislators and the public that the terms “privileges” and “immunities” meant fundamental rights as well as those stipulated in the Bill of Rights, including the right to bear arms and that these were to be applied to the states for the protection of all citizens.17,18 Essentially, this portion of the brief declared that selective incorporation of the Second Amendment was unnecessary because the Privileges or Immunities clause in the Fourteenth Amendment applied the entire Bill of Rights to the states in 1868.

A substantial section of the brief was devoted to analysis of the Slaughter-House Cases (1873), which denied that the Privileges or Immunities clause incorporated the Bill of Rights. The brief summarized these

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decisions’ effect as giving states license to “continue to violate virtually all privileges and immunities of American citizens, including those codified in the Bill of Rights.”19 The petitioners believed it was improperly decided and should not be used as a precedent in this case.20 They cited the decision’s failure to recognize the momentous change in constitutional history that came about with the Fourteenth Amendment’s ratification.21 They used historical evidence to support their assertion that the amendment’s authors intended for the Bill of Rights to apply to the states, and when the Court rejected this idea in Slaughter-House, it placed state citizenship above federal citizenship, which is not consistent with the Constitution.22 For these reasons, the petitioners urged the Court not to look to Slaughter-House as an appropriate precedent.

If the Court did not agree to apply the Second Amendment to the states through the Privileges or Immunities clause, the petitioners argued that the Due Process clause in the Fourteenth Amendment also provided support for their position.23 Due process has typically incorporated rights that are part of the concept of ordered liberty or fundamental, and the brief insisted that the right to bear arms fulfills these criteria because of its role in self-defense, its historical acceptance in this country and its wide mention in state constitutions.24 A reference to the Heller decision suggested that it is the proper precedent for the Court to rely on in this case.25

Although the respondents have yet to file their merit brief, their appellee brief from the appeals stage and their brief opposing a writ of certiorari detailed their arguments against incorporation. The respondents asserted that Supreme Court precedent allows the states to regulate weapons without running afoul of the Second Amendment.26 They cited the Slaughter-House Cases, Cruikshank, Presser, and Miller as precedents for limiting the Second Amendment to the federal government and used the more recent Heller decision to support their claim.27 They pointed out that Heller’s scope was limited to federal law, not state law, and did not address the issue of incorporation, so the cases did not directly contradict each other.28 The Court could rule not to incorporate the Second Amendment and validate Chicago’s handgun ban without concern about creating competing precedents because of the Heller ruling.

Beyond precedent, the respondents explained that under the Supreme Court’s established tests, an amendment cannot be incorporated under the Due Process clause unless it is fundamental, essential in the

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concept of ordered liberty, was intended by the amendment’s framers or is agreed upon by the states.29 They went on to argue that the Heller decision did not establish the Second Amendment as a fundamental right, as the petitioners claim, because it did not use the term in the context of the Second Amendment.30 The variety of modern firearms laws and restrictions in state constitutions presented further evidence that there is no consensus that the Second Amendment is a fundamental right applying to all weapons “in common use.”31

Additionally, the respondents did not think the right to bear arms fell within the notion of ordered liberty because it does not pertain to “personal liberties” like those in the First Amendment.32 It is different from the other incorporated rights in ordered liberty because it has the potential to negatively impact others’ privileges through violent crimes, and this balance between individual liberty and societal order must be taken into account.33,34 The respondents also contested the petitioners’ claims with their own historical evidence that there was a common understanding among congressmen and the public that the Fourteenth Amendment would apply the Bill of Rights to the states at the time of its ratification.35

The respondents firmly rejected the idea that the Court could use the Privileges or Immunities clause to apply the Bill of Rights to the states by citing the Slaughter-House Cases and the line of decisions that followed it.36 They argue against overturning that case and claimed that it is the appropriate precedent to apply. Because they did not accept that the right to bear arms is either a fundamental right or a part of ordered liberty, it should be precluded from being incorporated under the Due Process clause of the Fourteenth Amendment. If it was not eligible for incorporation, the Second Amendment would not automatically apply to the states, and city of Chicago would have the constitutional right to enforce restrictions on gun ownership. If the Court agreed with this line of reasoning, should rule in favor of the respondents and not incorporate the Second Amendment.

There was ample support for the petitioners in amicus briefs, and among their supporters, they counted 58 United States senators and 251 representatives from both Democratic and Republican parties. These congressmen submitted an amicus brief defending the incorporation of the Second Amendment, and it contained many of the same arguments as the petitioners’ brief. It similarly discussed Reconstruction legislation meant

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to prevent freed slaves from having their weapons unlawfully taken and viewed the Fourteenth Amendment as an enforcement mechanism.37 The congressmen asserted, as the petitioners did, that it was common knowledge among legislators, lower courts, and the public that the Fourteenth Amendment was meant to apply the right to bear arms to the states with a multitude of historical sources.38

In addition, they presented a case for why the Court should at this time incorporate the Second Amendment. Almost all other parts of the Bill of Rights have been deemed fundamental and selectively applied to the states.39 They emphasized the historical basis for terming the right to bear arms fundamental and cited Heller. In their opinion, the Court should incorporate the liberty to clarify the issue once and for all.40

Although no groups or organizations filed amicus briefs in support of the respondents, the National Association for the Advancement Colored People (NAACP) submitted a brief outlining its position on incorporation because of its mission to fight for equality in the law.41 The document presented a succinct history of the Court’s interpretation of the Privileges or Immunities clause as well as the Due Process clause of the Fourteenth Amendment; it found that the Court should only consider the Privileges or Immunities clause as a basis for incorporation if it did not find such proof in the Due Process clause.42 It claimed that rights have historically been safeguarded for the people and protected from state infringement through the Due Process clause, and the NAACP maintained that the Court should not consider incorporating the Second Amendment through the Privileges or Immunities clause so long as the current interpretation of the Due Process clause stands.43,44 If it must include the Privileges or Immunities clause in this case, the NAACP wanted to ensure that the Court would not then reevaluate all the other amendments that have been selectively incorporated by the Due Process clause in past decades.45 This creates dangerous gray areas, including a debate about which liberties are incorporated under that clause and whether or not United States residents who are not citizens are guaranteed incorporated rights.46

This brief particularly mentioned the Slaughter-House Cases, which feature prominently in the other briefs. The NAACP believed that the Court has in effect recanted the decision’s reasoning and those that followed it, although it was never formally overturned.47 Because of this opinion, the Slaughter-House Cases and its progeny could not stand in the

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way of applying the Second Amendment to the states, but neither could the desire to overturn it justify the Second Amendment’s incorporation.48 Legal Analysis

Both parties drew extensively on the Slaughter-House Cases and sought to either discredit or defend them as a guiding precedent. For that reason, it is important to examine their findings and legitimacy.

The facts in the Slaughter-House Cases could not be more different from the facts in this case. In 1869, a particular slaughterhouse was given a monopoly over the industry in New Orleans by the government of Louisiana, and local butchers sued the state government, claiming that the Privileges or Immunities clause of the Fourteenth Amendment protected their right to practice their occupation in the city. While this case entailed the right to earn a livelihood and the case before the Court today involves a liberty enumerated in the Bill of Rights, the common thread is a citizen suing local government and asking for protection under the same part of the Fourteenth Amendment.49 The Court’s decision in that matter held that the Privileges or Immunities clause in the Fourteenth Amendment did not guarantee that the states must respect constitutional rights, closing the door for incorporation of the Bill of Rights through this clause.50 With this ruling, the precedent was set to restrict future petitioners’ claims to some constitutional protections through this part of the Fourteenth Amendment. If the Court chose to uphold the SlaughterHouse precedent and apply it to this case, the petitioners would be unable to press for the incorporation of the entire Bill of Rights through the Privileges or Immunities clause. However, if the Court decided to overturn this case or rule that it is not an appropriate precedent, the door would be open for the petitioners to make this argument.

The two sides had drastically different opinions about how the Court should view this case. The petitioners believe that the Court’s justices interpreted the Fourteenth Amendment in a way wholly different from its framers and ruled that an American’s state citizenship trumped his or her national citizenship.51 They saw the Fourteenth Amendment as applying only to problems directly related to freed slaves after the Civil War.52 The petitioners stated that the decision is widely regarded in the legal community as a mistake and has been the basis for several other

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poor decisions, including Cruikshank, Presser, and Miller. Their brief outlined the decision’s chief flaws, including a disregard for the Fourteenth Amendment framers’ intent.53 It should be overruled, and furthermore, the petitioners argued that it should not be used as precedent for this case because it ignored the implications of the Fourteenth Amendment.

They sought to assuage any fears that acceptance of the Privileges or Immunities clause as basis for incorporation would not lead the Court to reexamine already incorporated rights under the Due Process clause.54

The respondents, on the other hand, claimed that Slaughter-House was an appropriate precedent that could not be overruled by the Court’s usual process for ignoring stare decisis. Slaughter-House is “workable” in their opinion, and by overturning it, the Court would incorporate the entire Bill of Rights and create legal difficulties for the states, which have relied upon the doctrine of selective incorporation.55 In addition, despite the more recent doctrine of selective incorporation through the Due Process clause, Slaughter-House rejects the Privileges or Immunities clause as rationale for incorporation, and no changes in legal thinking make it irrelevant to the modern world.56 Lastly, the respondents attempted to refute the petitioners’ assertion that Slaughter-House is universally regarded as erroneous.57

While both sides present reasoning about the merits and drawbacks of this precedent, the Court is swayed by the NAACP’s amicus brief, which stated that the case has “been thoroughly discredited, and [its] continuing doctrinal significance has been substantially eroded by this Court’s use of the Due Process Clause to incorporate key constitutional rights as against the states.”58 The idea in Slaughter-House that none of the constitutional rights apply to the states has long ago been done away with, and whether or not it is officially overturned, it cannot serve as a precedent for this case because it is outdated. The Court’s philosophy for the interpretation of the Fourteenth Amendment has evolved since 1873 into one of selective incorporation of the Bill of Rights through the Due Process clause, and this current attitude is not compatible with Slaughter-House. Instead, other cases must be considered as possible precedents.

United States v. Cruikshank, 92 U.S. 542 (1876) is another case frequently cited by both sides as a precedent, and it resulted in the Court refusing to incorporate the Second Amendment.59 However, because it was decided before the Court had established its standards for incorporation

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under the Due Process clause, as it did in Palko v. Connecticut (1937), it too cannot be the correct precedent to apply because constitutional law.

Both of the previous cases reject the idea that the Second Amendment can be incorporated through the Privileges or Immunities clause of the Fourteenth Amendment. While neither of those precedents can be used for this case because they are outdated, the Court maintains that the Privileges or Immunities clause does not now nor has it ever bound the states to respect any part of the Bill of Rights. This Court has never incorporated an amendment by any means other than through the Due Process clause, a tradition that began in Gitlow v. New York (1925) and Palko, and continues today. There is no reason to change this method at present because the incorporation through the due process doctrine is workable. The NAACP was correct in acknowledging in their amicus brief that if the Privileges or Immunities clause was used to incorporate the Second Amendment, it would lead to confusion among the states and the courts about which rights were incorporated, which could unduly restrict states’ right to govern.62 The Court would overstep its authority with this declaration, and for that reason, rejects the rationale of using the Privileges or Immunities clause to incorporate.

The question to be decided, then, is if the Second Amendment is incorporated through the Due Process clause of the Fourteenth Amendment. While the petitioners present evidence from a variety of historical sources that speaks to a common understanding among Americans when the Fourteenth Amendment was ratified that it would extend the Bill of Rights to the states, the respondents present enough conflicting accounts to introduce a reasonable level of doubt. The Court therefore rejects the idea that the framers intended to apply the entire Bill of Rights with either the Due Process clause or the Privileges or Immunities clause.

An important component in due process analysis is whether there is a clear consensus among the fifty states on an issue. An indicator in this case is how state constitutions treat gun rights. Although fortyfour states today affirm a right to bear arms, they vary in language and the level of protection and restriction.63,64 This is far from the agreement necessary to state that the nation has one idea about how this right applies.

The only question remaining, then, is whether the right enshrined in the Second Amendment is a fundamental liberty or a part of the concept of ordered liberty. If yes, it is eligible to be incorporated by

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the Due Process clause. As both parties identify, Heller is the appropriate precedent to apply.

The facts of the Heller case are almost identical to the facts in this case. The District of Columbia had a blanket ban on the possession of handguns in the city and required other firearms to be registered.65 One of D.C.’s residents, Heller, attempted to register a handgun to be kept in his home, but his application was denied.66 He sued the city and claimed the Second Amendment protected his right to own a handgun.67 The only difference between this case and the case from Chicago is that Heller did not have to argue for the Second Amendment’s incorporation because D.C. is a federal enclave and subject to federal, not state, law.

After a thorough examination of the text and history of the Second Amendment, this Court ruled with Heller. It found that the right to bear arms was originally meant to apply to individuals, not just collective militias, and the handgun ban was unconstitutional because it infringed on this right.68

The Court’s decision casts the Second Amendment in a new light and elevates the right to bear arms to a new level of importance in American values. While it did not explicitly answer the question of whether the right to bear arms is fundamental and necessary to ordered liberty, its defense of the right certainly suggests so. Although the respondents argue strenuously against interpreting Heller as making the right to bear arms fundamental, the decisions states that, “By the time of the founding, the right to have arms had become fundamental for English subjects.”69 The country was founded partly with the values of the English colonists in mind, and if they considered their right to bear arms fundamental, it is likely the founding fathers did as well. The decision implies that the Court considers the right to bear arms a fundamental right. Additionally, there can be no denying the long history of gun rights in every part of the nation. Although the Heller precedent has no bearing on the question of incorporation, its guidance confirms that the Second Amendment is a fundamental American right eligible for incorporation.

This case does not exist in a vacuum, and there is certainly a good deal of political pressure to incorporate the Second Amendment and hold states to the more encompassing language regarding gun ownership in the Bill of Rights. The National Rifle Association is a powerful lobby at both the state and national level of government and a party in two similar cases filed in the Chicago area. In addition to the amicus brief

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submitted by members of 38 state governments as well as one from local legislators from all fifty states, both of which advocate incorporation.

These briefs serve as a testament to the fact that many officials from various local levels of government support gun rights. However, the support of these legislators serves as an extra level of protection for the right to bear arms because they influence the development of gun-related laws in their cities and states, and this additional defense decreases the need for the federal government to protect the Second Amendment through incorporation.

With the facts presented, different interpretive doctrines lead to different decisions. An originalist who is swayed by the petitioners’ evidence that the Fourteenth Amendment’s framers intended for it to incorporate the Bill of Rights would have little hesitation in confirming the Second Amendment’s incorporation under the Due Process clause, combined with its status as a fundamental right. However, a judge who gives more weight to the doctrine of stare decisis would see Slaughter-House as the appropriate precedent to apply, no matter the historical context in which it was decided, and rule that the right to bear arms does not apply to the states. A third approach would balance the literal, constitutional interpretation with challenges of modern society. The possible harm from incorporation, including an increase in violence when handgun bans are no longer allowed, is weighed against a dearly held right to possess a weapon. A judge may rule in either party’s favor with this philosophy.

For this reason, it is this third approach, a compromise between the strict originalist view that the framers knew best and a more contemporary interpretation, that best adapts the Constitution to the twenty-first century while at the same time preserving rights generations of Americans have cherished. On the one hand, proponents of both extremes can agree that the Bill of Rights was purposefully penned by the founding fathers so that these freedoms would be passed down to future Americans untarnished. However, the world has changed since 1776, and so too has the way Americans express these freedoms. It is the Court’s role to mitigate between these rights and their application to the modern world.

Result

The only question to be decided is if the Second Amendment is selectively incorporated under the Due Process clause of the Fourteenth

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Amendment. Although the Second Amendment contains a fundamental right, the Fourteenth Amendment’s framers’ intentions are in doubtright, the Fourteenth Amendment’s framers’ intentions are in doubt and the states show no clear consensus. In addition, the Court must account for the potential consequences of incorporating the Second Amendment.

Such an action makes local government extremely vulnerable to challenges to long-standing weapons regulations in place to protect the public. The Tenth Amendment gives states the right to govern their own territories, and in the realm of gun rights, the states know best how to balance safety against liberty. At best, it would be overly obtrusive to compel the states to respect the Second Amendment, and at worst, it would be dangerous and foolhardy.

The Court finds that the Second Amendment is not incorporated through either the Privileges or Immunities clause or the Due Process clause of the Fourteenth Amendment. Chicago’s handgun ban is constitutional. The Court affirms the judgment of the Seventh Circuit Court of Appeals.

Epilogue

Six months after this paper was written, the Supreme Court ruled in this case that the Due Process clause of the Fourteenth Amendment did indeed incorporate the Second Amendment and required that the states protect citizens’ right to bear arms.70 There are overlaps in this analysis and the Court’s decision; the Court cited Heller as the appropriate precedent to use, and it also established the right to bear arms as a fundamental right.71 However, the bulk of the Court’s justification rested in historical context, while the analysis presented here gave greater weight to the potential harms of incorporation and looked to the Tenth Amendment as justification for not holding states responsible for protecting the Second Amendment.72 The Court’s decision is limited in that it does not suggest that the entire Bill of Rights should be incorporated, and it does not diverge from established precedent because it relies on the Due Process clause of incorporation.73 However, it changes the way all 50 states and countless municipalities regulate firearms, and it leaves these local governments open to lawsuits over their restrictions. This decision changes the relationship between citizens and state governments, and it will require all local governments to rethink the way they legislate guns.

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Notes

1.

2.

3.

4.

5.

6.

7.

8.

9.

10.

11.

12.

13.

14.

15.

16.

17.

18.

19.

20.

21.

22.

23.

24.

25.

26.

27.

28.

29.

30.

31.

32.

33.

34.

35.

36.

37.

Brief of Defendants-Appellees City of Chicago and Village of Oak Park at p. 6, http://www. chicagoguncase.com/wp-content/uploads/2009/04/appellees_brief_mcdonald.pdf Petitioners’ Brief at p. 3, http://www.abanet.org/publiced/preview/briefs/pdfs/09-10/081521_Petitioner.pdf Ibid.

Ibid.

Ibid.

Ibid.

Ibid.

Ibid.

Ibid.

Brief of Defendants-Appellees City of Chicago and Village of Oak Park at p. 5, http://www. chicagoguncase.com/wp-content/uploads/2009/04/appellees_brief_mcdonald.pdf Petitioners’ Brief at p. 1 and 4, http://www.abanet.org/publiced/preview/briefs/pdfs/0910/08-1521_Petitioner.pdf Ibid.

Brief of Defendants-Appellees City of Chicago and Village of Oak Park at p. 12, http:/www. chicagoguncase.com/wp-content/uploads/2009/04/appellees_brief_mcdonald.pdf Petitioners’ Brief at p. i, http://www.abanet.org/publiced/preview/briefs/pdfs/09-10/081521_Petitioner.pdf Ibid.

Ibid.

Ibid.

Ibid.

Ibid.

Ibid.

Ibid.

Ibid.

Ibid.

Ibid.

Ibid.

Brief of Defendants-Appellees City of Chicago and Village of Oak Park at p. 14, http:// www.chicagoguncase.com/wp-content/uploads/2009/04/appellees_brief_mcdonald.pdf Brief for Respondents in Opposition at p. 6 and 18, http://www.chicagoguncase.com/wpcontent/uploads/2009/08/chicago_bio.pdf Brief of Defendants-Appellees City of Chicago and Village of Oak Park at p. 12 and 16, http://www.chicagoguncase.com/wp-content/uploads/2009/04/appellees_brief_mcdonald. pdf Ibid.

Ibid.

Brief for Respondents in Opposition at p. 14, http://www.chicagoguncase.com/wp-content/ uploads/2009/08/chicago_bio.pdf Ibid.

Ibid.

Brief of Defendants-Appellees City of Chicago and Village of Oak Park at p. 50, http:// www.chicagoguncase.com/wp-content/uploads/2009/04/appellees_brief_mcdonald.pdf Ibid.

Brief for Respondents in Opposition at p. 18, http://www.chicagoguncase.com/wp-content/ uploads/2009/08/chicago_bio.pdf Brief for Amici Curiae Senator Kay Bailey Hutchinson, Senator Jon Tester, Representative Mark Souder, Representative Mike Ross, and 56 Additional Members of United States

28

38.

39.

40.

41.

42.

43.

44.

45.

46.

47.

48.

49.

50.

51.

52.

53.

54.

55.

56.

57.

58.

59.

60.

61.

62.

63.

64.

65.

66.

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Senate and 249 Additional Members of United States House of Representatives in Support of Petitioners at p. 7-8, http://www.chicagoguncase.com/wp-content/uploads/2009/11/081521tsaccongress.pdf Ibid.

Ibid.

Ibid.

Brief of Amicus Curiae NAACP Legal Defense & Educational Fund, Inc. in Support of Neither Party at p. 1, http://www.chicagoguncase.com/wp-content/uploads/2009/11/081521-tsac-naacp-ldf.pdf Ibid.

Ibid.

Ibid.

Ibid.

Ibid.

Ibid.

Ibid.

The Supreme Court. The First Hundred Years. Landmark Cases. Slaughterhouse Cases (1873). Retrieved December 9, 2009, from PBS website, http://www.pbs.org/wnet/supremecourt/antebellum/landmark_slaughterhouse.html Slaughter-House Cases. 83 U. S. 36 (1872). U.S. Supreme Court, 2010. Retrieved February 27, 2011 at p. 82, http://supreme.justia.com/us/83/36/case.html Petitioners’ Brief at p. 52, http://www.abanet.org/publiced/preview/briefs/pdfs/09-10/081521_Petitioner.pdf Ibid.

Ibid.

Ibid.

Brief for Respondents in Opposition at p. 22-23, http://www.chicagoguncase.com/wp-content/uploads/2009/08/chicago_bio.pdf Ibid.

Ibid.

Brief of Amicus Curiae NAACP Legal Defense & Educational Fund, Inc. in Support of Neither Party at p. 12, http://www.chicagoguncase.com/wp-content/uploads/2009/11/081521-tsac-naacp-ldf.pdf Brief of Defendants-Appellees City of Chicago and Village of Oak Park at p. 14, http:// www.chicagoguncase.com/wp-content/uploads/2009/04/appellees_brief_mcdonald.pdf Brief for Amici Curiae Senator Kay Bailey Hutchinson, Senator Jon Tester, Representative Mark Souder, Representative Mike Ross, and 56 Additional Members of United States Senate and 249 Additional Members of United States House of Representatives in Support of Petitioners at p. 26, http://www.chicagoguncase.com/wp-content/uploads/2009/11/081521tsaccongress.pdf Epstein, Lee, & Walker, Thomas G. (2007). Constitutional Law for a Changing America: Rights, Liberties, and Justice (6th ed.) Washington, D.C.: Congressional Quarterly Inc., p. 83 Brief of Amicus Curiae NAACP Legal Defense & Educational Fund, Inc. in Support of Neither Party at p. 17, http://www.chicagoguncase.com/wp-content/uploads/2009/11/081521-tsac-naacp-ldf.pdf Petitioners’ Brief at p. 69, http://www.abanet.org/publiced/preview/briefs/pdfs/09-10/081521_Petitioner.pdf Brief of Defendants-Appellees City of Chicago and Village of Oak Park at p. 39, http:// www.chicagoguncase.com/wp-content/uploads/2009/04/appellees_brief_mcdonald.pdf District of Columbia et al. v. Heller. 554 U. S. ____. U.S. Supreme Court, 2008. Retrieved December 9, 2009, at p. 1, http://www.supremecourt.gov/opinions/07pdf/07-290.pdf Ibid.

Ibid.

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68. Ibid at p. 2 69. Ibid at p. 20 70. McDonald et al. v. City of Chicago, Illinois, et al. 561 U.S. ___ (2010). U.S. Supreme Court, 2010. Retrieved February 27, 2011 at p. 1, http://www.supremecourt.gov/ opinions/09pdf/08-1521.pdf 71. McDonald et al. v. City of Chicago, Illinois, et al. 561 U.S. ___ (2010). U.S. Supreme Court, 2010. Retrieved February 27, 2011 at p. 4, http://www.supremecourt.gov/ opinions/09pdf/08-1521.pdf 72. McDonald et al. v. City of Chicago, Illinois, et al. 561 U.S. ___ (2010). U.S. Supreme Court, 2010. Retrieved February 27, 2011 at p. 3, http://www.supremecourt.gov/ opinions/09pdf/08-1521.pdf 73. McDonald et al. v. City of Chicago, Illinois, et al. 561 U.S. ___ (2010). U.S. Supreme Court, 2010. Retrieved February 27, 2011 at p. 2, http://www.supremecourt.gov/ opinions/09pdf/08-1521.pdf

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A Restricted Right Privacy, Abortions and Minors in the Context of Griswold v. Connecticut (1965)

D aniel A ldrich

College of Arts & Sciences, 2013 FOCUS: Law and Society Professor Marvin Cummins

Abstract This paper discusses the constitutional basis for legalized abortion in the United States. The justification for abortion, established in Roe v. Wade (1973), depends on the right to privacy that the Court found in Griswold v.

Connecticut (1965). The paper analyzes the arguments for and against the right to privacy. It finds that the Court’s justification is vague and unsatisfactory. Given how the Court decided Griswold, however, it argues that the right to privacy necessarily encompasses the virtually unrestricted right to an abortion. The regulations allowed by Roe and Planned Parenthood v.

Casey (1992), which rely on an analysis of a fetus’s constitutional rights, are unconstitutionally burdensome. Finally, the paper examines the issue of a minor’s right to abort. It argues that a better balance must be struck between the government’s interest in the minor’s welfare and the minor’s right.

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In this essay, I examine three related yet distinct questions about constitutional privacy rights. The first deals with a constitutional right to privacy, the second with a constitutional right to an abortion, and the third with a minor’s constitutional right to an abortion. I argue that, while certain elements of privacy are protected by the Constitution, there is no fundamental constitutional right to privacy. All justifications, whether based on the Fourth, Fifth, Ninth, or Fourteenth Amendment, or some combination thereof, lack adequate evidence to support the claim. If the Court’s formulation of a right to privacy is accepted, however, such a right necessarily encompasses a pregnant woman’s right to an abortion; one’s own body is perhaps the most private sphere that there is. Current abortion jurisprudence does not fully respect this right– it allows the government too much influence over a woman’s reproductive decision-making. Finally, I argue that a minor’s right to an abortion is diminished by her lack of maturity, which limits her capacity for rational decision-making. Nevertheless, it is still very much existent, and is extensive enough that the current legal restrictions placed upon it–in particular, the parental consent requirement–are unconstitutional.

Privacy

The first question that I address is whether the Constitution contains a right to privacy. First, however, I must define what a right to privacy entails. Many of the rights protected by the Constitution are fairly specific, such as the rights to enjoy a speedy and public trial by an impartial jury and to be immune from being prosecuted twice for the same crime. Even those rights that are more general, such as freedom of speech, press, and exercise of religion, protect specific acts from governmental intervention. The right to privacy, in contrast, is nebulous and broad. Privacy can be interpreted as privacy of the home, privacy of property, privacy of thought, privacy of marriage, or privacy of body.

The central arguments for a right to privacy in the Constitution were advanced in Griswold v. Connecticut (1965). Writing for the Court, Justice Douglas struck down a statute forbidding the sale of contraceptives to married couples by finding a right to marital privacy emanating from the “penumbras” of the First, Third, Fourth, Fifth, and Ninth Amendments1. The ideas advanced in these amendments cast shadows, he argued, which create “zones of privacy.”2 That these amendments by themselves lend constitutional protection to various types of privacy

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does not mean that their guarantees may be added up like tally marks to produce an implicit unstated right to privacy.

Douglas first discusses the penumbra of a “right of association” stemming from the First Amendment’s protection of freedom of speech and assembly, distinguishing it as “more than the right to attend a meeting; it includes the right to express one’s attitudes or philosophies by membership in a group.”3 Indisputably, this is a constitutionally protected right, backed by substantial precedent.4 However, these cases focus on the freedom to affiliate with a group without suffering discrimination–a sort of privacy of association. To compare this type of privacy to the marital privacy at issue in using contraception as if the two were closely related concepts is highly misleading.

Douglas next draws on the Third Amendment’s “prohibition against the quartering of soldiers ‘in any house’ in time of peace without the consent of the owner,” claiming that it is “another facet of privacy.”5 He doesn’t explain its specific penumbra, however, because there isn’t one. Moreover, it is difficult to find an example of this amendment being used to justify a court’s decision; it was crafted to address a problem specific to the era of the Constitution’s framing, and is no longer relevant.

To read its very specific (and rarely invoked) injunction as creating a right to privacy of the home is a substantial interpretive leap, one that is entirely unsupported by precedent. If the framers really intended to imply such a general right, they chose a strangely narrowly focused way to do so, singling out a specific instance of disrupting domestic privacy rather than crafting a more general protection against government intrusion into the home. The Third Amendment takes up just one sentence of Douglas’s opinion, and is not backed up by any reasoning at all. It seems likely that Douglas included it because a right to privacy supported by four penumbras is stronger than one supported by three; the justification for finding a broader zone of privacy emanating from this highly specific protection is flimsy at best.

The Fourth Amendment undoubtedly establishes a limited right to privacy, preventing the government from unreasonably searching or seizing an individual’s property, person, or house. What kind of penumbra this security casts, however, is unclear; furthermore, protection of property is unrelated to marital privacy. In the Fifth Amendment, Douglas finds “a zone of privacy which government may not force [the citizen] to surrender to his detriment.”6 The idea that this amendment creates a

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right to privacy of thought is reasonable. But again, no justification is provided for using this protection as an additive component of a general right to privacy that encompasses marital privacy, a concept wholly unrelated to privacy of thought. Douglas gives the Fifth Amendment penumbra two sentences and one citation, which is more than the Third Amendment got. Still, he describes the penumbra very vaguely–“the privacies of life” hardly helps pinpoint what sphere of privacy Douglas thinks the penumbra applies to.7 Such meager evidence is an insufficient basis for establishing that the Amendment offers any protection of privacy, much less that this protection can be extended to marital privacy.

Ultimately, I reject Douglas’s claim that the various protections the Constitution confers on different types of privacy can be added up to comprise a whole that is more than the sum of its parts. Justice Black writes in his dissent that “there are . . . guarantees in certain specific constitutional provisions which are designed in part to protect privacy at certain times and places with respect to certain activities.”8 Douglas tries to hide the specificity of these privacy protections by writing as broadly and generally as possible. The Third Amendment protects a “facet” of privacy and the Fifth Amendment “create[s] a zone of privacy” that might be associated with the “privacies of life.”9 In fact, however, these protections are narrowly targeted at specific violations of privacy (e.g. quartering soldiers in a house without consent, searching and seizing private property). The privacy referred to in the “privacy of mind” is a wholly different concept from the privacy in “privacy of property,” which is again different from the privacy in “marital privacy.” Asserting that ideas found in various amendments that are not substantially related to one another can be added together to embody a constitutional right not explicitly stated in the text is not persuasive judicial reasoning. It is akin to arguing that, because driving while drunk is illegal, and driving over the speed limit is illegal, and driving while talking on the phone is illegal, and driving without a seatbelt is illegal, driving itself is illegal, an obviously ridiculous conclusion. To be sure, a right to privacy in certain situations is protected by the Constitution, but just because it is protected in some contexts does not mean it is protected in all contexts.

Justice Goldberg, although concurring with the Court, argues that the primary justification for a constitutional right to privacy does not come from the penumbras, but rather lies in the Ninth Amendment, which states that “the enumeration in the Constitution, of certain rights,

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shall not be construed to deny or disparage others retained by the people.” It was adopted in response to the concern that “by enumerating particular exceptions to the grant of power, it would disparage those rights which were not placed in that enumeration; and it might follow by implication, that those rights . . . were intended to be assigned into the hands of the General Government, and were consequently insecure.”10 Goldberg argues that the above suggests that the Ninth Amendment was designed to protect fundamental rights that the framers did not think to mention. “The Framers did not intend that the first eight amendments be construed to exhaust the basic and fundamental rights which the Constitution guaranteed to the people.”11 Furthermore, judges should determine which rights are fundamental not “in light of their personal and private notions,” but rather “must look to the ‘traditions and [collective] conscience of our people.”12 I will argue that the first quoted passage is a misinterpretation of the amendment, while the second and third are naïve and dangerous in their expansion of judicial discretion and power.

The purpose of the Ninth Amendment, as affirmed by over one hundred years of jurisprudence as well as the writings of the framers, is quite modest. It “state[s] but a truism that all is retained which has not been surrendered,” and “make[s] clear that the adoption of the Bill of Rights d[oes] not alter the plan that the Federal Government [i]s to be a government of express and limited powers, and that all rights and powers not delegated to it [a]re retained by the people and the individual States.”13 It does not establish any new “basic and fundamental rights,” but rather emphasizes that the Federal Government has no power not specifically delegated to it in the Constitution.14 Its invocation in Griswold was one of the first in Supreme Court history, and has rarely been referenced since. In the years following Griswold, several federal court decisions have held that the Ninth Amendment is essentially a judicial principle, and does not itself provide a basis for establishing fundamental rights not explicitly guaranteed by the Constitution.15,16

Goldberg’s interpretation of the Ninth Amendment, which disregards all of the above arguments, grants the Court free reign to determine what constitutes a fundamental right. However, it is overly optimistic to insist that Justices can disregard their “personal and private notions” respecting such a subjective and divisive issue. Moreover, to tell them to use “the traditions and collective conscience of our people” as a measure of fundamentality profoundly undermines the principle of ju-

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dicial restraint. It allows Justices to read any right they want into the purview of the Ninth Amendment, provided they can reasonably justify that it is couched in our traditions and collective conscience. If the Ninth Amendment were used as Goldberg suggests, precedents would be overturned much more frequently and for far less well-supported reasons, eroding the stability of the legal system.

The final place in which some find a constitutional right to privacy is the Due Process Clause of the Fourteenth Amendment, which reads: “nor shall any State deprive any person of life, liberty, or property, without due process of law.” The standard claim is that the right to privacy is “implicit in the concept of ordered liberty” embodied by the Due Process Clause.17 The problem with such an argument is much the same problem with construing the Ninth Amendment to protect against fundamental rights not enumerated in the rest of the Bill of Rights: doing so allows Justices to declare laws unconstitutional for almost any reason whatsoever, so long as they plausibly argue that it violates a right “implicit in the concept of ordered liberty.” The Due Process Clause was designed to protect individuals from overly vague and broad laws that are applied unfairly or unjustly. In Griswold, however, the procedural rights of the appellants were not violated; Justice Stewart notes that “there is no claim that this law . . . is unconstitutionally vague . . . [or] that its appellants were denied any of the elements of procedural due process at their trial.”18 Protecting procedural rights is the only function that the Due Process Clause performs. Anything beyond that grants justices too much discretion to disregard settled law in favor of their personal views.

In the words of Justice Black, “We are [not] granted power by the Due Process Clause . . . to measure constitutionality by our belief that legislation is arbitrary, capricious, or unreasonable, or accomplishes no justifiable purpose, or is offensive to our own notions of ‘civilized standards of conduct.”19 Such a measurement is the consequence of interpreting the Due Process Clause to protect rights deemed “implicit in the concept of ordered liberty.”20

In summary, a general right to privacy does not exist in the Constitution. It cannot be gleaned from the penumbras emanating from various amendments, nor can it be found Ninth Amendment’s nonexistent protection of un-enumerated fundamental rights, nor in the Fourteenth Amendment’s protection of rights “implicit in the concept of ordered liberty.” Justice Stewart put it best by bluntly stating: “I can find no such

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general right of privacy in the Bill of Rights, in any other part of the Constitution, or in any case ever decided by this Court.”20 Abortion

The second question I will address is whether the constitutional right to privacy, assuming it exists, includes a woman’s right to an abortion, and if so, under what conditions. In speaking of a constitutional right to privacy, I do not mean various constitutional provisions that confer protection on certain aspects of privacy, but rather a general and fundamental right to privacy spanning all spheres of human activity.

If one recognizes this broad right, then it must include the right to procure an abortion. The decision to have an abortion involves determining the fate of something inside one’s own body, an extraordinarily private domain subject to stringent protection from government intrusion. In Eisenstadt v. Baird (1972), the Court found bodily privacy especially sacrosanct, stating that “if the right of privacy means anything, it is the right of the individual . . . to be free from unwarranted governmental intrusion into matters so fundamentally affecting a person as the decision whether to bear or beget a child.”21 Moreover, the consequences of the decision have the potential to deeply affect one’s personal life, to “deprive a woman of her preferred lifestyle and force upon her a radically different and undesired future.”22 Because of the deeply personal nature of both the procedure itself and the factors underlying the decision, a woman’s right to choose whether to have an abortion is protected by the fundamental constitutional right to privacy.

Set against this right are the State’s interests in regulating abortion. These interests stem from two sources: concern for the health of the mother and for protecting the life of the unborn fetus.23 The first interest, while valid, can be served without compelling the mother to carry the pregnancy to term. The importance of the second interest has been overstated in recent privacy jurisprudence. I will argue that the fetus’s lack of personhood dramatically limits its constitutional rights and the government’s interest in preserving those rights. Furthermore, the strength of the government’s interest in preserving fetal life does not vary from the time of conception to birth; in particular, the point of viability is irrelevant to this issue.

Just as the State has an interest in preserving and protecting the health and well-being of all of its citizens, it owes such a duty to a moth-

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er contemplating an abortion. This interest is unaffected by the level of risk associated with the potential abortion. While it may craft regulations to ensure that risky abortions take place less often than safe abortions, the State’s interest in the health of the mother does not vary according to the riskiness of the abortion. Examples of permissible regulations include “requirements as to the qualifications of the person who is to perform the abortion; as to the licensure of that person; [and] as to the facility in which the procedure is to be performed.”24

However, the State overreaches when it requires a woman to comply with anything more than perfunctory procedures that ensure the legitimacy of the abortion provider. For example, a mandatory waiting period between expressing one’s intent to have an abortion and actually undergoing the procedure is an unnecessary impediment. Regulations such as this presume that the State is better equipped to evaluate the health risks than the mother herself in consultation with her physician.

Requiring such a waiting period raises a nontrivial obstacle in the way of the many women trying to obtain an abortion who don’t have ready access to an abortion facility , and it does so to serve the illegitimate purpose of assuming a role in the decision-making process of the woman.

Unlike minors, addicts, and the mentally ill, all classes of people with impaired or inferior judgment, adult women contemplating abortion are rational, autonomous individuals who do not need the government to protect their own interests.

Turning to the government’s interests in protecting the life of the fetus, everything hinges on what rights we accord the unborn, a question inextricably linked to the “personhood” of the fetus. If the fetus is considered a person possessed of the full spectrum of constitutional rights accorded to U.S. citizens, then ending its life without its consent is a gross violation of its liberty. If, however, the fetus is not a person, the extent of its constitutionally protected rights will be considerably smaller. Biologically, the fetus is considered alive from the moment of conception. However, being alive and being a person are different concepts. The first is scientific, while the second is philosophical. Were the fetus considered a person, it would be entitled to the constitutional protection against deprival of life without due process of law. In Roe, the Court looked to the text of the Constitution for clues to the nature of personhood, and noted that in almost every mention of person, “the use of the word is such that is has application only postnatally.”25 Granting

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the fetus the status of a person also raises all sorts of problems with reconciling the penalty for criminal abortion with the significantly harsher penalty for murder: if a fetus is a person, how are the two acts different?

Based on these and other arguments, the Court concludes that “the word ‘person,’ as used in the Fourteenth Amendment, does not include the unborn.”26 The judgment is clear: for the purposes of legal analysis, a fetus is not considered a person.

In my view, the fact that a fetus is not considered a person greatly diminishes the State’s interest in protecting it. All other things being equal, of course, the State would prefer that the fetus be born. However, a woman’s constitutional right to the privacy of her own body dwarfs this preference. The fetus that the State has an interest in protecting, although biologically alive, is not a human being, and is dependent on its mother’s uterus in order to survive. As such, it is entitled to none of a human being’s rights and legal protections. Furthermore, I argue that there is no difference between the legal rights of a fertilized embryo at the point of conception and an unborn eight month-old fetus. Contrary to the contention of the Court in Roe, the point of viability changes nothing with respect to the State’s interest in preserving fetal life. The fact that a fetus could potentially survive outside the womb, while perhaps making it seem more person-like, does nothing to change its legal status from non-person to person. From the point of conception, a fetus is alive and has the potential to be a person, but it is not a person until it is no longer inside its mother’s body.

To justify drawing the line at viability, the Court states in Planned Parenthood v. Casey (1992) that “courts may not [draw lines which appear arbitrary],” and proceeds to declare that “no line other than viability is . . . more workable.”27 Additionally, it argues that “the viability line . . . has . . . an element of fairness . . . it might be said that a woman who fails to act before viability has consented to the State’s intervention on behalf of the developing child.”28 In effect, the Court has formulated the intuitively unattractive concept of an intermediate status half-way between person and non-person. The viable fetus, according to our argument above, is not a person; however, the Court has given it more rights than an unviable fetus for no good reason, save vague allusions to the workability and fairness of drawing the line at viability. There is no justification offered for why these criteria are relevant. Whether the line is workable or not only really matters if a line must be drawn in the first place, and the Court

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has not established that it must. If it could be argued that viability was a “fair” point at which to draw a line, that might be a valid reason for doing so. However, the Court in Casey implies that viability is an intuitively fair point at which to draw the line; however, I happen to think that creating the artificial concept of an entity that is neither person nor non-person is not intuitive.

To demonstrate the arbitrariness of drawing the line at viability, compare the status of the fetus at conception with its status at viability. Above, I argued that a fetus at conception is a potential person. Its status as person or non-person is conditioned on the mother carrying the pregnancy to term. At viability, I argue that the fetus is still only a potential person. If it were instantly transported outside the mother’s body, it would immediately attain the status of personhood. However, it cannot be transported without the mother choosing to abort. Thus, its status as a person or non-person is conditioned on the actions of the mother, a situation nearly identical to that of the fetus at conception. The only difference is that the conceived fetus is both dependent on and inside of the mother, whereas the viable fetus is only inside of the mother.

Nevertheless, the State’s interest in protecting both potential persons is equal, as the fate of their personhood depends on the actions of an actual person–the mother–entitled to the full spectrum of legal rights, which are unavailable to the non-person.

In light of the above, I must reject the “undue burden” test formulated in Casey, as well as the trimester framework advanced in Roe, simply because the Supreme Court has exaggerated the State’s interests in the health of the mother and the life of the fetus. According to the Court in Casey, the undue burden test is the appropriate standard by which to judge abortion regulation, which states that “an undue burden exists . . . if its purpose or effect is to place a substantial obstacle in the path of a woman seeking an abortion before the fetus attains viability.”29 The Court justified this standard by arguing that Roe neglected to consider the compelling nature of the State’s interest in fetal life throughout the pregnancy. I find the State’s interest somewhat less than compelling.

After viability, the Court in Casey allows the State to “proscribe abortion except where it is necessary . . . for the preservation of the life or health of the mother.”30 Because there is no logical legal difference between a viable and non-viable fetus, I cannot endorse this ruling either. Finally, the trimester framework of Roe proceeds on the same faulty assumption

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that the interests of the State in fetal viability and the health of the mother vary with the length of the pregnancy, and thus require a different assignation of permitted government influence in the abortion decision at different times during the pregnancy.

In summary, the constitutional right to privacy, if it exists, affords women the right to obtain abortions at any stage of a pregnancy.

Neither the State’s interest in the health of the mother nor the life of the fetus changes at all throughout the course of the pregnancy. Therefore, whatever balance is struck between the woman’s right to privacy and the State’s interest in maternal health and fetal livelihood will be the same at any point in time. I assess this balance as heavily tilted towards the woman’s right to choose. It is my conclusion that the State’s interests in fetal life and maternal health are too insubstantial to justify significant government regulation of abortion.

Minors

The third and final question is whether the constitutional right to an abortion, assuming it exists, extends to minors, and if so, under what conditions. There are two major differences between the situations of a pregnant minor and a pregnant adult. First, the minor is more susceptible to the potentially harmful consequences of being forced to carry a pregnancy to term, such as damage to her reproductive capability or psychological trauma. Second, minors are generally presumed to be less mature than adults, and incapable of making certain decisions rationally and knowledgably (i.e. voting, drinking alcohol, gambling, etc.). Typically, it is for this second reason that the law requires a minor to either obtain consent from or notify her parents before obtaining an abortion, unless she goes before a judge and obtains a judicial workaround.

In addition to the minor’s situation being substantially different from that of an adult, the government’s interests concerning a minor’s pregnancy are different from its interests concerning an adult’s pregnancy. Whereas the government’s interest in the health of an adult mother was not strong enough to allow it to interfere with her decision for medical reasons, a minor’s presumptive lack of maturity suggests that she may be incapable of deciding what is best for her health, authorizing the government to take a larger role in the decision-making process. But although a minor’s autonomy in this respect is diminished in comparison with an adult’s, it is by no means nonexistent. First, “a pregnant adoles-

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cent . . . cannot preserve for long the possibility of aborting.”31 Moreover, “the abortion decision differs in important ways from other decisions that may be made during minority. The need to preserve the constitutional right and the unique nature of the abortion decision . . . require a State to act with particular sensitivity when it legislates to foster parental involvement in this matter.”32 Although the State has liberally restricted the First and Fourth Amendment rights of minors, the abortion decision is so important and potentially catastrophic that it is “inappropriate ‘to give a third party an absolute . . . veto over the decision of the physician and his patient to terminate the patient’s pregnancy.”33 Allowing another individual to compel a minor to carry a fetus to term is a substantial infringement on her constitutional right to an abortion.

To mitigate the restriction imposed on the abortion rights of minors by the parental consent requirement, the Court ruled that “if the State decides to require a pregnant minor to obtain one or both parents’ consent to an abortion, it also must provide an alternative procedure whereby authorization for the abortion can be obtained.”35 Such a procedure deftly balances the powerful competing interests of the minor in preserving her constitutional right to privacy (specifically the aspect of privacy granting her the right to decide the fate of her pregnancy) and the government’s interest in ensuring that her decision is informed and rational. However, it is flawed in two ways. First, the most common workaround involves a judicial hearing, which I suggest requires a considerable amount of wherewithal on the part of the minor, and imposes a substantial obstacle on pregnant minors unfamiliar with or incapable of navigating the legal system. Even intelligent adults are frequently bewildered by the abstruse and esoteric nature of court procedure. It is unreasonable to think that the average minor, already in a stressful situation, could successfully obtain judicial permission to get an abortion. Second, the judicial hearing typically revolves around determining whether the minor is mature enough to make the abortion decision, and if she is not, whether the decision is in her best interests. Answering these questions requires knowledge of child psychology as well as experience dealing with a wide range of familial circumstances, knowledge and experience that a judge is not likely to possess. Thus, even if the minor is shrewd enough to adequately argue her case, it is quite possible that the judge will rule incorrectly. The difficulty of navigating a judicial hearing and the unsuitability of a judge for deciding the maturity and best interests

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of a pregnant minor render this option an unconstitutional impediment to a minor’s right to an abortion.

Although a judicial bypass alternative is not workable, the government cannot dispense with the workaround altogether and allow minors to procure abortions with no oversight. Too often, the minor will be incapable of making an informed and rational decision without parental or other outside input. Thus, a procedure must be devised whereby a minor can seek relief from the parental consent requirement that is both more accessible than a judicial hearing and overseen by individuals better able to decide whether a minor is mature enough to make an informed and rational decision, and if not, whether the abortion is in the best interests of the minor anyway. Such a procedure might take the form of an informal hearing in which the minor presents her case without facing adversarial cross-examination (as is sometimes the case in the judicial hearings), and the two questions are discussed by a panel of individuals with both medical expertise and experience dealing with children, characteristics which will be of value in assessing the best interests and maturity of the minor. Only thus can minors be afforded their due right to an abortion while also remaining protected from the risks posed by their undeveloped decision-making abilities.

I believe that the Court’s ruling in Griswold v. Connecticut was profoundly unconstitutional and an unwarranted abuse of judicial power.

But it is unrealistic to suggest that it should be reversed almost fifty years later. The principle of stare decisis dictates that, for the sake of stability, prior decisions should only be overturned in the most extreme circumstances, when letting the law remain uncorrected would be grievously unjust. In this instance especially, the amount of case law that relies on Griswold is so vast that the ripple effects of its reversal would completely disrupt judicial procedure.

What is left, then, is a fundamental right to privacy that must include a woman’s right to an abortion, independent of government interference. Perhaps if the government’s interest in the life of the unborn fetus were more compelling, it could be argued that abortions could be regulated more restrictively. As I have established, however, a fetus cannot be legally considered a person, and is thus not entitled to any governmental protection of its constitutional rights. No doubt, even some ardently pro-choice readers will think this is a rather callous appraisal, particularly given that I do not distinguish between aborting immediately

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after conception and just before birth. Morally and emotionally, I would have a very hard time counseling a close friend or family member to have an abortion in the third trimester of her pregnancy. However, my (and anybody else’s) subjective moral convictions and emotional responses are irrelevant to interpreting constitutional law. Therefore, I believe that both Roe v. Wade and Planned Parenthood v. Casey were decided wrongly and should be overturned; the continued infringement of adult women’s abortion rights is a grave injustice.

The issue of minors seeking abortions is interesting, because unlike with adult women, there is a significant government interest–the well-being of the minors themselves–that must be balanced against their fundamental right to have an abortion. The challenge in the forthcoming years will be to devise the optimal way of serving this interest while still preserving this right.

Notes 1.

2.

3.

4.

5.

6.

7.

8.

9.

10.

11.

12.

13.

14.

15.

16.

17.

18.

19.

20.

21.

22.

23.

24.

25.

26.

27.

28.

29.

30.

31.

Griswold v. Connecticut, 381 U.S. 479 (1965) Ibid.

Ibid.

NAACP v. Alabama ex. Rel. Patterson, 357 U.S. 449 (1958) Griswold v. Connecticut, 381 U.S. 479 (1965) Ibid.

Ibid.

Ibid.

Ibid.

Ibid.

Ibid.

Ibid.

Ibid.

Ibid.

United States v. Vital Health Products, 786 F. Supp. 761 [E.D. Wis. 1992] Rothner v. City of Chicago, 725 F. Supp. 945 [N.D. Ill. 1989] Palko v. Connecticut, 302 US 319 (1937) Griswold v. Connecticut, 381 U.S. 479 (1965) Ibid.

Palko v. Connecticut, 302 US 319 (1937) Griswold v. Connecticut, 381 U.S. 479 (1965) Eisenstadt v. Baird, 405 US 438 (1972) Doe v. Bolton, 410 U.S. 179 (1973) Roe v. Wade, 410 US 113 (1973) Ibid.

Ibid.

Ibid.

Planned Parenthood of Southeastern Pennsylvania v. Casey, 505 U.S. 833 (1992) Ibid.

Ibid.

Ibid.

44 32.

33.

34.

35.

The Circuit Bellotti v. Baird, 443 US 622 (1979) Ibid.

Ibid.

Ibid.

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Dangerous Thoughts

Ideological Exclusion, National Security and Civil Liberties

D ivya M oolchandani

College of Arts & Sciences, 2012 National Security, Civil Liberties and the Law Professor Denise Lieberman

Abstract The ideological exclusion principle of the 2001 USA PATRIOT Act discusses the federal government imposing limitations on the civil liberties of US citizens at a time of threat to national security. While including the principle appeared justified, this paper argues it is an unjust impediment to freedom of speech guaranteed by the First Amendment. An examination of the case of Tariq Ramadan, an Islamic scholar who was denied a visa on the grounds of ideological exclusion, demonstrates that restricting a forum of dialogue infringes on the rights of citizens. Some governmental actions that preserve national security may be permissible, but excluding foreign scholars for their opinions is unnecessarily paternalistic and characteristically un-American.

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After September 11, 2001, the United States was in a vulnerable condition. The threat of terrorism appeared to be looming, and citizens looked to the government for protection. It responded by passing the USA PATRIOT Act, which included a provision that denied visas to foreign scholars and intellectuals who appeared to be advocating terrorism. This type of ideological exclusion, a preventative measure that has been implemented historically, seemed to advocate for a safer America, but it conflicted with right of the American people to hear the views of the scholars. In a country that campaigns its freedom and democracy to be the greatest in the world, the basic rights of free speech, guaranteed in the First Amendment, were being violated. The ideological provision was eventually overturned after the government’s application of this provision was challenged and protested by the civil liberties groups and the academic organizations that invited the foreign scholars who were denied entry. This resistance to the USA PATRIOT Act reveals how ideological exclusion finds itself becoming policy in threatening times and how safeguards are needed to protect the rights of Americans.

The USA PATRIOT Act, abbreviated from Uniting and Strengthening America by Providing Appropriate Tools Required to Intercept and Obstruct Terrorism, is a piece of legislation passed by the US government approximately six weeks after the terrorist attacks on September 11, 2001. The provisions of the law were established in order to increase the nation’s means of defense in the name of national security, and successfully allowed for significant improvements in the processing of visas and laws regarding money laundering. Furthermore, the USA PATRIOT Act allowed for fewer bureaucratic barriers in the sharing of information, specifically foreign intelligence, between law enforcement and national security officers. The passage of the Act was also accompanied by a set of expiration dates, or sunsets, on a few particular provisions, which mandated that the specific sections, such as those addressing surveillance and seizure of electronic communication, be considered for reapproval when they expired in 2005. In a controversial action that has been considered by some to be a statement that the new presidential administration condones these measures, the current administration encountered the process of renewal and has chosen to extend a few sunset provisions, such as roving surveillance, “lone wolf,” and the “libraries” provision.

Though the Patriot Act allowed for mechanisms that strengthened the United States’ domestic security, it ratified provisions that “cast

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a cloak of secrecy� on the civil liberties of American citizens.1 The Act decreased, and sometimes negated, the need for probable cause, evidence, and notification in regard to detention and deportation of immigrants or individuals under suspicion. The federal government, as a result of the Act, now has the power to freeze assets of persons of interest on the foundation of secret evidence. Law enforcement can conduct searches, seizures and wiretaps without probable cause and with delayed notice for any federal crime. Furthermore, communications and personal records are carefully monitored by the government, giving law enforcement access to personal records, electronic communications, stored voicemails, and call logs without the need to identify the concrete purpose of the request. The limited discretion of judicial review in reference to these provisions allows almost unrestricted leeway to investigate activity in the name of national security.

One of the strongest debates arises from the fact that a large number of these provisions are targeted towards immigrants, particularly those from Arab and predominantly Muslim countries, and guilt by association is commonly the driving force behind undue investigation and incarceration. The Act allows deportation simply for expressing political beliefs and exercising the Constitutional right to free speech. One outstanding provision that targets aliens from these affiliated countries and threatens the visa application process are ideological exclusions, which deny foreign scholars entry into the United States on the basis that they “endorse or espouse terrorist activity.�2 Found in Section 411 of the USA PATRIOT Act, the ideological exclusion provision prohibits aliens from obtaining a visa to come to the United States on the basis that their personal beliefs and ideology have not only expressed encouragement of terrorism, but also have persuaded others to support terrorist activity.

Historically, this provision has its foundation in the McCarran-Walter Act, which applied the exclusion to communism and those who seemed to endorse it; in the past, this 1952 Immigration and Nationality Act prevented scholars such as Chilean poet Pablo Neruda and Canadian Prime Minister Pierre Trudeau from entering the US.3

The apparent vitality of barring those who would cause detriment to the nation from entering it is the premise of the concept of ideological exclusion. Once the US Secretary of State deems that a visa prospect has partaken in speech that threatens national security, he or she has the ability to exclude the tentative visitor from entering the United

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States and even revoke a visa that has already been issued. The “denial of visas to foreign scholars and figures based on ideological disagreements with US policies” has created controversy and established debate regarding the precedence of either national security or civil liberties.4

A prominent example regarding the ideological exclusion delineated in the USA PATRIOT Act is the case of Tariq Ramadan. Ramadan, a prominent professor and scholar on Islam from Switzerland who condemned the terrorist attack on the World Trade Center was offered a tenure track position at the University of Notre Dame’s Institute for Peace; however, the visa Ramadan was issued was revoked on the grounds that he supported terrorism.5 In order to challenge the ideological exclusion that denied Ramadan entry into the United States, the American Association of University Professors, the PEN American Center, and the American Academy of Religion filed suit against the United States’ Secretary of State Condoleezza Rice and Secretary of Homeland Security Michael Chertoff, and later, Secretary of State Hilary Rodham Clinton and Secretary of Homeland Security Janet Napolitano in American Academy of Religion v. Napolitano. The plaintiffs also sought an injunction preventing the government from actively using the ideological exclusion policy. In this Court case, Ramadan served as a symbolic plaintiff, as he was unable to view the case against him without the visa. The plaintiffs argued that the American government was directly infringing on the right of the American people to hear Ramadan’s views, a right which is explicitly guaranteed in the First Amendment.

When amending the USA PATRIOT Act, however, which occurred during the case, Congress chose to exclude the ideological exclusion provision. These circumstances led the District Court to rule that the United States government had 90 days to decide on Ramadan’s visa application. In spite of this, the United States once again challenged Ramadan’s entry into the country on the grounds that he had provided “material support” to Association de Secours Palestinian (ASP), a group that knowingly contributes to Hamas; the government argued that Ramadan’s donations provided funding to a terrorist organization, since Ramadan allegedly had known that ASP contributes to Hamas.6

Though the District Court ruled in favor of the government, the ruling was overturned by the Second Circuit Court of Appeals on the grounds that the United States government did not provide adequate evidence supporting the claim that Ramadan had knowingly funded a

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terrorist organization. Furthermore, they found that the First Amendment rights of the American people were being violated when they were denied the ability to hear the views of foreign scholars, politicians, and artists.7 Citing Kleindienst v. Mandel, the Second Circuit reaffirmed the right of American citizens to “hear, speak, and debate with a visa applicant.”8 In 2010, Secretary of State Hilary Rodham Clinton overturned the ideological exclusion provision and granted a ten year visa to Tariq Ramadan.

In the United States, Ramadan has held events with academics, members of Congress, and the media. It is during his visits to the United States that Ramadan emphasizes the point that “the [United States] government seems to be trampling over the rights that make democracies worth defending…in the name of defending the country against terrorism.”9 By withholding visas from foreign intellectuals in the name of national security, the United States government is severely infringing on the rights of its people to have access to hearing and debating with prominent foreign scholars, creating a nation of people with uninformed opinion and faulty judgments. Rather than allowing its citizens the opportunity to address their current beliefs by challenging those who have opposing ones, the government acted out of fear of instability and chose to foster an environment of chosen ignorance. The concept of the diversity of thought allows for beneficial development of understanding of a variety of ideals, which is a fundamentally American insight into education. Writer Salman Rushdie, President of the PEN Center, which was one of the academic organizations in the United States to defend Tariq Ramadan, appropriately summarizes this sentiment with his stance “the exclusion of Professor Ramadan illustrates that the USA PATRIOT Act and other post 9/11 laws and policies may be serving to increase American isolation at a time when international dialogue is more critical than ever.”10

American Academy of Religion v. Napolitano shows that the combination of immigration laws and censorship laws has the ability to cause detriment to the rights of the American people. By denying Tariq Ramadan, a man who has vocally criticized terrorists and the use of terrorism, and who was invited by Tony Blair to join a task force to study Islamic extremism in the UK, the right to enter the United States, the government is directly contributing to the hyped and irrational fear of American citizens against Islam. Rather than allowing these scholars into the

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country and encouraging informed dialogue, the government denied its people the right to pure speech with its application of ideological exclusion.

To the government, reviving the concept of ideological exclusion seemed to have its merits at the time. By simply not allowing the scholars into the United States in order to speak to the people, the policy has the ability to deter any potential extremism at a time when the nation’s security defenses are vulnerable. The ideological exclusion was enacted as a preventative measure in order to advance national security, not to deny Americans their guaranteed rights to free speech. Furthermore, the First Amendment is only applicable to Americans who are protected by the Constitution; the free speech of foreign scholars and thinkers is not a right guaranteed to them in the United States. If Americans wish to do so, they are able to access the ideas of these scholars through other means, and by denying visas to these individuals, the government took what it deemed to be necessary precautions that may prevent future attack on American soil. Historically, Congress, in times when there are threats to national security, has placed safeguards and limitations on any speech or propaganda that may incite attack; in the past, to prevent the spread of communism, even the United States Supreme Court has placed limitations on free speech in regard to obscenity and indecent speech.11 The First Amendment also does not extend to the protection of sedition, which is a criminalized offense, and it is possible that foreign scholars and politicians who enter the United States may advocate sedition and provocation of misconduct against the current laws.

The initial purpose of ideological exclusion was not an inherently malicious one. Ideological exclusion, the government believes, has the potential to halt foreign scholars who have ulterior motives in regard to United States national security. It can be deemed essential, not as a continuous policy, but rather as a preventative measure in the occasion of vulnerable defenses. The policy only considers temporary visitors to the United States, and while it may be the right of Americans to have access to ideas, no matter how conflicting they may be, the government had considered ideological exclusion vital to stop the spread of extremism and prevent the expansion of causes that threaten the laws and government of the United States. It can be argued that this policy is simply limiting extremism in light of recent events that caused harm and were motivated by radical beliefs. The US government did not limit the rights

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of Americans to utilize free speech and participate in discussion, but rather prevented outside individuals, who could potentially threaten the safety of American citizens, from contributing fanatical ideas to the dialogue. In the case of Tariq Ramadan, the government’s purpose was to act paternalistically to protect its citizens from potential incitement.

Though the United States government may have considered this logic in their adaptation of ideological exclusion as a policy, the exclusions lead to a violation of the American rights guaranteed in the Bill of Rights and may cause more harm than benefit. The policy of ideological exclusion, though passed in the name of national security as a means of preventing the spread of terrorism, is a provision of the USA PATRIOT Act that comes into direct conflict with civil liberties. Rather than focusing its energy on taking concrete actions that actually have the capability to deter terrorism and terrorist attacks, the United States government implemented a provision that simply halted the spread of ideas by combining immigration with censorship. Though national security is a crucial issue, the exclusion of well-educated and renowned scholars, writers, politicians, scientists, and religious leaders has no negative and direct impact on the safety of the nation. Ramadan’s case was an outcry from the American academic institutions that exist to halt the injustices the exclusion places on the American people. Denying them the ability to impart their wisdom and contribute to dialogue regarding international issues leads to judgments driven by ignorance and fear. By permitting the visas of these scholars, there could exist a forum for collaboration in which positive change can be propelled. The concept of free speech is the foundation of American pride and democracy, and to infringe on this right to exchange ideas and to dissent conflicts with the ideals of the nation that the government is fighting overseas to establish and protect.

Without any evidence of endangerment to national security, it is not feasible to deny visas on the grounds that the visitor follows a potentially threatening ideology. Furthermore, adopting ideological exclusion as a national policy will produce hostile feelings and unnecessarily damage relationships with other nations by developing the supremacist stance that the United States does not require communication with other unique ideals as it is an omniscient body. Denying entry to the most intelligent people from the other countries will cause irreparable harm to the United States’ image. Passing legislation that explicitly prohibits the ideological exclusion ensures that the rights of the American people will be pro-

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tected, and the reputation of a land of freedom will not be spoiled.

Though ideological exclusion was implemented by the government with the motivation of protecting its citizens, the policy directly infringes on the civil liberties and the right to free speech as guaranteed in the First Amendment. While there should certainly be safeguards in place that screen visitors who wish to enter the United States, to exclude someone, especially renowned scholars, simply on his or her ideology and without concrete evidence of a threat to national security is an unnecessarily zealous measure. By overturning the provision and allowing Tariq Ramadan and professors, such as Adam Habib, from other nations, the Obama administration reaffirmed the American right to hear discourse and debate ideas. The adamant opposition of ideological exclusion on behalf of the American Civil Liberties Union, as well as other academic organizations that were involved, played a considerable role by challenging the government’s overbearing endeavor to protect the nation. The clash between the merits of freedom and the need for national security can sometimes lead to a contradiction in regard to the preservation of important ideals and fundamental rights; it is essential to find harmony between the two.

Notes 1.

2.

3.

4.

5.

6.

7.

8.

9.

Cole, David, and James X. Dempsey. Terrorism and the Constitution: Sacrificing Civil Liberties in the Name of National Security. New York: New York, 2006.

USA PATRIOT Act, §411a.1.A.iii.“VI. <http://frwebgate.access.gpo.gov/cgibin/getdoc. cgi?dbname=107_cong_public_laws&docid=f:publ056.107.pdf>.

“Immigration and Nationality Act of 1952.” Extended Definition: Immigration and NationalityAct of 1952. Webster’s Online Dictionary. <http://www.websters-dictionary online.com/definitions/Immigration+and+Nationality+Act+of+1952?cx=partner-pub 0939450753529744:v0qd01-tdlq&cof=FORID:9&ie=UTF 8&q=Immigration+and+Nation ality+Act+of+1952&sa=Search#922> “Ideological Exclusions: Introductory Briefing.” American Association of University Professors. 2008. Web. <http://www.aaup.org/AAUP/GR/CapHill/2008/idealexcus.htm>.

“American Academy of Religion Et Al. v. Napolitano Et Al. (Challenging Ideological Exclusion under the Patriot Act).” New York Civil Liberties Union (NYCLU) - American Civil Liberties Union of New York State. <http://www.nyclu.org/node/1036>.

“ACLU Challenges Patriot Act Provision Used to Exclude Prominent Swiss Scholar from the United States.” American Civil Liberties Union. 25 Jan. 2006. <http://www.aclu.org/ national-security/aclu “Ideological Exclusions: Introductory Briefing.” American Association of University Professors. 2008. Web. <http://www.aaup.org/AAUP/GR/CapHill/2008/idealexcus.htm>.

“American Academy of Religion v. Napolitano - Case Profile.” American Civil Liberties Union.09 Apr. 2010. <http://www.aclu.org/national-security/american-academy-religion-v napolitano-case-profile>.

American Academy of Religion v. Napolitano, 573 F.3d 115 (2nd Cir. 2009)

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10. “Ideological Exclusions: Introductory Briefing.” American Association of University Professors. 2008. Web. <http://www.aaup.org/AAUP/GR/CapHill/2008/idealexcus.htm>.

11. Edwards, Jr. James R. “Keeping Extremists Out: The History of Ideological Exclusion and the Need for Its Revival.” Backgrounder [Washington, DC] Sept. 2005: 1-23. Center for Immigration Studies.

The Invasion of Technology Warrantless Government Monitor Tracking in the Digital Age

K evin R osendahl

School of Engineering and Applied Science, 2014 The Bill of Rights: Freedoms and Limitations Professor Mary Stillman

Abstract This paper explores whether the federal government ought to be allowed to monitor its citizens via global positioning devices without a warrant.

It examines this question in the context of two types of monitoring: short and long-term. After considering relevant precedent, the paper argues that short-term warrantless tracking ought to be ruled constitutional, whereas warrantless long-term tracking ought to be ruled unconstitutional.

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As technology advances, more sophisticated devices squeeze their way into every corner of societal life. One important recent development has been the prominence of GPS devices. These tracking devices are everywhere: in car navigation devices, cell phones, on household pets, and many other common places. These devices are also being used by law enforcement agents. Agents are able to track suspects’ cars by attaching these devices to them, and monitoring the device from wherever they wish. If the agents have a warrant, this type of tracking is legal. The legality of warrantless monitoring is more obscure.

Recently, there has been a wave of decisions on this issue, but in different jurisdictions, and different decisions. The Supreme Court has yet to rule on this issue, and thus there is no unifying ruling across the land. A recent Ninth Circuit ruling stated that a DEA agent’s warrantless installation of a tracking device on a car in a citizen’s driveway was not a violation of the citizens’ 4th Amendment rights.1 A Washington State ruling found warrantless GPS installations to be a violation of the 4th Amendment.2 A Washington D.C. District Court recently ruled that the month long warrantless surveillance of a citizen violated his 4th Amendment rights.3 Due to the lack of a common ruling, and the transcontinental nature of the rulings, the Supreme Court should consider the constitutionality of the warrantless installation and monitoring of GPS tracking devices.

When considering whether or not there is any need for the police to obtain a warrant to install a GPS tracking device on a citizen’s car, two types of surveillance must be considered. The first type is short term surveillance, tracking someone’s car for a one time trip, or for a matter of a few days. The second is long term surveillance. Long term surveillance includes installing and monitoring a GPS device for weeks, or months on end, around the clock. These two scenarios should be debated and weighed separately to fully understand the issue. However, before one considers arguments from either side, one must understand the precedent relevant to the issue at hand.

The idea of a reasonable expectation of privacy first arose in the case Katz v. United States (1967). In this case, Katz used a public phone booth to place illegal bets over the phone. The FBI had placed a device on the outside of the phone booth that allowed them to hear what was being said inside. He was not shouting what he was saying to the public, but rather in a closed area where bystanders would not be able to hear what

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was said. The Court ruled that this surveillance violated the 4th Amendment, stating that since Katz had entered the phone booth and closed the door behind him, he had a reasonable expectation that his conversation would be private.4 However, just because he believed he had a reasonable expectation of privacy does not mean he did. The Court stated that this expectation must also be something that society in general would recognize. Thus, when a person has a reasonable expectation of privacy, the government cannot perform a search or seizure without a warrant.

Next, one should consider cases that set the basis for electronic tracking. The first of these is United States v. Knotts (1983). In Knotts, a worker for a chemical company was found to be stealing chloroform, which is an ingredient in making methamphetamines. A beeper was attached to one of the barrels of chloroform that the worker was purchasing, and the police used both the radio beeper and visual surveillance to track the worker. The beeper led the police to a methamphetamine laboratory, where they found a large amount of equipment, formulas, and chemicals. The chloroform container with the beeper was sitting outside the cabin. Since the beeper only reported its location, it only told the police the location of the cabin, but not what was inside. Since all of that information could have been accomplished using visual surveillance, the Court ruled that the beeper was a legitimate surveillance tool.5 The Supreme Court ruled that since the worker had no reasonable expectation of privacy about his car, the beeper was not a violation of the 4th Amendment.6 People driving their cars on public roads have no reasonable expectation of privacy regarding their location and movement, thus tracking the location of the car did not violate the 4th Amendment.

A year later, the Court decided the case of United States v. Karo (1984). In this case, a beeper that transmitted its location was attached to a container of chemicals that was being used for the manufacturing of drugs. The containers were then transported, and ended up inside one of the defendantâ&#x20AC;&#x2122;s houses, with the beeper still transmitting. The government then obtained a warrant and arrested all of the defendants. In this case as well, the Court found that the installation of the beeper itself was not a violation of the Fourth Amendment.7 The Court did rule, however, that when the beeper was placed inside the house, it gave the government information about the inside of the house. Since this information was not obtainable by any visual surveillance, this type of surveillance was a violation of the 4th Amendment.

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In order to resolve the question at hand, the first type of surveillance previously mentioned must be considered. Is it a breach of a reasonable expectation of privacy to install a GPS tracking device to a car for short term monitoring? Throughout various cases dealing with automobiles, it has been found by the Supreme Court that citizens should have a much smaller expectation of privacy when it comes to their cars. One of the most often cited cases concerning the privacy of cars is Cardwell v. Lewis (1974). In this case a man was charged with murder, and his car was impounded. A warrantless search was performed, which matched his tire tracks and his paint to that of the car used in the murder. The Court found this was not a violation of the fourth Amendment, ruling that the expectation of privacy in one’s automobile is significantly less than one’s office or house.8 In its opinion, the Court stated that “one has a lesser expectation of privacy in a motor vehicle because its function is transportation and it seldom serves as one’s residence or as the repository of personal effects[…]It travels public thoroughfares where both its occupants and its contents are in plain view.”9 The car is not a constitutionally protected area, as the phone booth was in Katz.

In both Knotts and Karo, the installation of the beeper was upheld as a legitimate action. Since one’s reasonable expectation of privacy about a car, its movement, and its location is minimal at best, it is constitutional for the police to install the GPS tracking device. The only question of constitutionality is what data is being transmitted. Karo states that if the data that is being transmitted gives information about a constitutionally protected area that could not be witnessed by visual surveillance, then the monitoring of the GPS would be unconstitutional. However, the GPS only transmits the location of the citizen’s car, and therefore would not yield information about any constitutionally protected area. Thus, the reasoning for why the beeper data was thrown out in Karo does not apply to GPS tracking. The police use traditional surveillance techniques such as tailing a suspect’s car to achieve the same results as GPS trackers, and thus the monitoring of the GPS is constitutional.

There is, however, a distinction between the first type of surveillance and the second that must be made. The ability of the police to monitor a GPS tracking device should not extend to prolonged surveillance. The main difference lies in the information that can be inferred from short term versus long term surveillance. The Washington D.C. District Court recently ruled on a case dealing with the issue of long

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term GPS surveillance, and came to the correct conclusion. In U.S. v.

Maynard (2010), the District Court ruled that the warrantless, 24 hour-aday, month long monitoring of the location of the defendant’s car was a violation of his Fourth Amendment rights. This was derived mainly from the aforementioned divergence between what short versus long term surveillance will tell the government. The court in its ruling stated, “when it comes to privacy[…]the whole may be more revealing than the parts,” adding, “no single journey reveals the habits and patterns that mark the distinction between a day in the life and a way of life, nor the departure from a routine.”10 A good example is presented. The judges claim that f a woman is seen going to a gynecologist’s office one day, not much can be inferred. However, if a week or two later, the same woman goes to a baby store, a whole different story is told. Because of how much can be inferred by long term surveillance, the needlessness of a warrant cannot be extended to prolonged surveillance.

The question at hand is whether there is a reasonable expectation of privacy that one’s car is not being monitored for weeks on end, at all hours of the day. As described earlier, one does not have a reasonable expectation of privacy in driving their car from one place to another, as described earlier. However, there is a different case to be made for the entirety of one’s travels for an extended amount of time. It is not plausible for the government to maintain visual surveillance of a suspect for an entire month straight. The 2000 case Bond v. United States illustrates this point.

In this case, there was a man on a bus travelling from Arkansas to California. At an immigration checkpoint, a border patrol agent inspected the man’s luggage; this inspection included squeezing the bag.

After squeezing it, the agent determined that there was a brick of methamphetamine in the bag and arrested the man. The Supreme Court held that this was an unreasonable search.11 The man in the bus did not have a reasonable expectation that other passengers wouldn’t touch his bag.

However, he did have, the Court ruled, a reasonable expectation that other passengers would not “feel the bag in an exploratory manner.”12 This case demonstrates that although it is possible for the agent to squeeze his bag, because it is not something “a reasonable bus passenger expects others he encounters, i.e. fellow passengers or bus company employees, might actually do,” he has a reasonable expectation of privacy that prevents the agent from searching his bag, including squeezing, without a

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warrant.13

Bond shows that although it is possible for some sort of government intrusion to take place, one’s reasonable expectation of privacy is not completely eliminated simply due to that possibility. The District Court summed this up, saying “in considering whether something is exposed to the public as that term was used in Katz we ask not what another person can physically and may lawfully do but rather what a reasonable person expects another might actually do.”14 The court also adds, “it is one thing for a passerby to observe or even to follow someone during a single journey as he goes to the market or returns home from work.

It is another thing entirely for that stranger to pick up the scent again the next day and the day after that, week in and week out, dogging his prey until he has identified all the places, people, amusements, and chores that make up that person‘s hitherto private routine.”15 Expecting privacy when it comes to the details of one’s long term travels is not unreasonable since it is not at all likely that someone follows another around for a whole month

The second half of the reasonable expectation test outlined in Katz requires that the expectation not only be reasonable to the person who claims their privacy has been violated, but the expectation must also be something society is prepared to accept as reasonable. In its ruling, the court in Maynard cites a California law that outlaws anyone but law enforcing from tracking another with GPS technology. Specifically, the law states that “electronic tracking of a person‘s location without that person‘s knowledge violates that person‘s reasonable expectation of privacy.”16 This is not an anomaly, as the court acknowledges that “several other states have enacted legislation imposing civil and criminal penalties for the use of electronic tracking devices and expressly requiring exclusion of evidence produced by such a device unless obtained by the police acting pursuant to a warrant.”17 The fact that legislatures are creating laws that proclaim specifically that GPS tracking is a violation of a person’s reasonable expectation of privacy shows society’s willingness to accept that expectation.

Thus, long term monitoring of a GPS tracking device is a violation of a reasonable expectation to privacy, and therefore a warrant is necessary. However, the Supreme Court is yet to rule on warrantless GPS tracking, both short term and long term. Since there are many different rulings across different jurisdictions, this would be an issue to

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find its way onto the docket. As has been previously described, it would be unreasonable for one to expect that they have total privacy in their daily travels in their car. Because of this, temporary warrantless GPS tracking should be permitted. However, a citizen has a reasonable expectation to privacy when it comes to their long term travels, as it is unlikely that someone would follow them around for a month straight. Subsequently, long term warrantless GPS tracking is unconstitutional. If the Supreme Court eventually rules on warrantless GPS tracking, it should find short term monitoring constitutional, but should strike down prolonged monitoring of GPS tracking devices a violation of the Fourth Amendment.

Notes 1.

2.

3.

4.

5.

6.

7.

8.

9.

10.

11.

12.

13.

14.

15.

16.

17.

US v. Pineda-Moreno, 617 F. 3d 1120 (2010) State v. Jackson, 76 P. 3d 217 (2003) US v. Maynard, 615 F. 3d 544 (2010) Katz v. United States, 389 US 347 (1967) United States v. Knotts, 460 U.S. 276 (1983) Ibid.

United States v Karo, 468 U.S. 705 (1984) Cardwell v. Lewis, 417 U.S. 583 (1974) Ibid.

US v. Maynard, 615 F. 3d 544 (2010) Bond v United States, 529 U.S. 334 (2000) Ibid.

Ibid.

Ibid.

Ibid.

US v. Maynard, 615 F. 3d 544 (2010) Ibid.