How Many Constitutional Amendments Are There?

The short answer: the number of times the Supreme Court has ruled on a constitutional question. Every time the Supreme Court grants certiorari, allows a case to move ‘upwards’ from state and Federal courts to its chambers, and then proceeds to rule–keeping in mind the supposedly relevant precedents, and on the basis of a coherent theory of the interpretation of legal texts–it offers us an amended constitution. Every act of interpretation–sometimes plain literalist, sometimes originalist, sometimes purposive–adds meaning and texture to the text of the articles of the Constitution. Thus the content of the Fourth Amendment is not to be found in the Constitution; it is to be found in the cumulative history of all Supreme Court rulings on cases that have rested on contested interpretations of the Amendment. What does ‘unreasonable’ mean? What does ‘search’ mean? What does ‘seizure’ mean? What does ‘persons’ mean? What does ‘effects’ mean? What does ‘probable cause’ mean? To decipher this meaning, scattered over thousands and thousands of pages of Supreme Court rulings is an almost insuperable and intractable task; it is much easier, therefore, to fall back on the simplest formulation of all: ‘The Fourth Amendment says that…’. But the filling out of that particular that-clause will call for the expenditure of considerable ink, and in the end, it will appear that the protections of the Fourth Amendment are considerably more ambiguous–in several dimensions–than previously imagined, by both its detractors and proponents alike.

These considerations show that talk of ‘constitutional protections’ must always proceed hand in hand with talk of constitutional interpretation, with the history of actual supreme court rulings on the constitutional question under discussion. Such inclusion is especially necessary when giving someone legal advice; as Justice Holmes sagely pointed out many years ago, the law is what the judges say it is: “The prophecies of what the courts will do in fact, and nothing more pretentious.”

Our nation is entering a period of great legal uncertainty; there is much talk of taking cover under constitutional protections, of seeking refuge from an authoritarian government under the covering canopy of the Bill of Rights. But the text of the Bill of Rights is not sufficient to provide such protection; the Supreme Court rulings on Bill of Rights cases are far more germane. To look only to the Constitution is dangerously complacent; talk of legal rights without actual legal protections is hollow.

Many a patriot is disappointed and disillusioned to find out that in point of fact the Fourth Amendment is almost hollow in content; its protections systematically eviscerated over the years by repeated weakenings through selective, ideological, and politically motivated interpretation. Mass surveillance; warrantless searches; stop and frisk; the list goes on. Where is the Fourth Amendment?, the patriot asks. The answer is: not in a small booklet, but in that section of the law school’s library that deals with constitutional law.

Constitutional conventions, two-thirds majorities, ratifications by state legislatures–such is the machinery of the constitutional amendment by legislative fiat. Such convolutions are kludgy compared to the awesomely efficient method of Supreme Court rulings; there, in the foundry of the Supreme Court’s chambers, new meanings are forged every year, every Supreme Court season.

Glenn Greenwald is Not the Story; The Surveillance Is

The New York Times has an article on Glenn Greenwald, who has broken two stories on the NSA surveillance programs that now occupy most thinking people’s attention, which is titled thus: ‘Activist Blogger Is At The Center Of A Debate‘ on its front page. (The article’s title reads ‘ Blogger, With Focus on Surveillance, Is at Center of a Debate’). That headline, and the content of the story, tells us a great deal about what is wrong with modern journalism  and why civil liberties outrages aren’t so outrageous any more.

Greenwald is most emphatically not at the ‘center’ of any debate. He is not the story; the surveillance program is. But surely, some background on the reporter who broke the story would let readers evaluate his credibility? I’m afraid this claim does not withstand closer scrutiny even though it smacks of a pleasing epistemic rectitude: ‘all we are doing is investigating the source of this story’. To focus on him  is a a straightforward misdirection of journalistic effort. The New York Times should be concentrating on uncovering more details about the surveillance programs in the Greenwald articles, but not about Greenwald himself.

(Incidentally, just for good measure, the New York Times article includes a couple of ad-hominem slams against Greenwald:

Gabriel Schoenfeld, a national security expert and senior fellow at the Hudson Institute who is often on the opposite ends of issues from Mr. Greenwald, called him, “a highly professional apologist for any kind of anti-Americanism no matter how extreme.”

Mr. Sullivan wrote in an e-mail: “I think he has little grip on what it actually means to govern a country or run a war. He’s a purist in a way that, in my view, constrains the sophistication of his work.”

There is praise for Greenwald too, but all of this is really besides the point.)

The correct thing for New York Times journalists to do at this point is to get to work on verifying the authenticity of the documents that Greenwald’s source has made public and to explain to their readers:  what their legal and political implications are; how these programs fit into the context of the surveillance that the previous administration kicked off; what the relevant sections of the Patriot Act are; whether the defenses made by administration officials stand up to scrutiny or not; and so on. The New York Times has done some of these things, but my point is that at this moment, those  ought to be its exclusive focus. There is a chance here for a serious journalist to expose the workings of a provably out-of-control government; anything else is a distraction at this stage.

This kind of missing-the-point is not restricted to the focus on Greenwald. Consider for instance, the stories on the Bradley Manning trial. As Matt Taibbi points out, most media outlets are obsessed by his personal background and are rather spectacularly missing the forest for the trees:

The CNN headline read as follows: “Hero or Traitor? Bradley Manning’s Trial to Start Monday.” NBC went with “Contrasting Portraits of Bradley Manning as Court-Martial Opens.”

Unsurprisingly, the citizenry marches on, its attention diverted.

The Spying Will Continue Until Morale Improves

The New York Times, picking up on a Guardian story by Glenn Greenwald, reports that:

The Obama administration is secretly carrying out a domestic surveillance program under which it is collecting business communications records involving Americans under a hotly debated section of the Patriot Act, according to a highly classified court order disclosed on Wednesday night.

The order, signed by Judge Roger Vinson of the Foreign Intelligence Surveillance Court in April, directs aVerizon Communications subsidiary, Verizon Business Network Services, to turn over “on an ongoing daily basis” to the National Security Agency all call logs “between the United States and abroad” or “wholly within the United States, including local telephone calls.”

This policy is a straightforward continuance of the Bush administration’s massive surveillance effort, similarly directed by the NSA in co-operation with telecommunications companies. The scope of the order indicates the data collection is indiscriminate: it is not directed, targeted or narrowly focused. (The court order does limit the data collection by time.) Rather, it is a broad sweep, a trawl to net the NSA’s desired catch. This is not surveillance to confirm a hypothesis; this is surveillance to try to frame one. This is not surveillance as an aid to detective work; this is surveillance as an integral component of that work. As Greenwald notes:

FISA court orders typically direct the production of records pertaining to a specific named target who is suspected of being an agent of a terrorist group or foreign state, or a finite set of individually named targets.

Especially interesting, I think, is the reaction to the story. By that I do not mean the reactions of politicians, journalists, and privacy advocates. Rather, if one is allowed to believe that comments on the New York Times story are at all reflective of the ‘word on the street’, then a couple of apologetic samples are depressingly interesting.

For instance, ‘pjd’ from Westford writes:

I’m surprised that no one has noted the dates in the order. The order was signed on 4/25/2013 which is ten days after the Boston Marathon bombing.

This response is emblematic of the ‘it’s justified because of the terrorists.’ Never mind that nothing about the Boston bombers seems to indicate any kind of widespread conspiracy that would justify such a massive surveillance effort.

And ‘Kurt’ from NY writes:

Ordinarily, this kind of data collection could be interpreted as overly broad and a threat to civil liberties….But, again, given just how disturbing it seems on its face, if a judge is willing to make such an order and Congress is aware of it, it would seem to suggest that there is legitimate need in response to specific threat. Which would also say that, given the security classification it has been given, for this matter to be public knowledge as it now is is possibly injurious to national security.

Here we have the standard ‘the government must have a reason even if they aren’t telling us, and that’s fine by me.’ The trust displayed here in a judicial and executive branch that have done nothing to justify it is touching.

And this statement by the Obama Administration is equally risible:

The information acquired does not include the content of any communications or the name of any subscriber.  It relates exclusively to metadata, such as a telephone number or the length of a call.

Why is this not even remotely comforting?

Glenn Greenwald on Civil Liberties and Their Willing Surrender

Today, at Brooklyn College, Glenn Greenwald delivered the 39th Samuel J. Konefsky Memorial Lecture. I was lucky enough to be in attendance and thoroughly enjoyed watching this top-notch muckraker and gadfly in action. I have often seen Greenwald speak on video but this was the first live presentation I have witnessed. It was everything it was promised to be: Greenwald was passionate, precise and polemical. The title of his talk was ‘Civil Liberties and Endless War in the Age of Obama’ and so, appropriately, Greenwald began by offering a definition of ‘civil liberties‘: a set of absolute, unconditional constraints on governmental and state power, ones defined and defended by the people. These should be so stark and clear that no abridgments should be possible or tolerated; those who suggest or support these show themselves to not possess a true understanding of the concept.

With this uncompromising bottom line clearly articulated, Greenwald then presented a tripartite analysis of why, despite the presence of the US Constitution and its Bill of Rights, the state of civil liberties in the US today appears to be quite as problematic as it is and why the US populace has so easily acquiesced to this denial of their constitutional privileges.

First, the US has been since 2001, in a state of ‘perpetual war’, against poorly defined enemies, with no geographic or temporal limitation. This war ensures the endless invocation of natural security as a reason for the attenuation and abuse of civil liberties, whether it be surveillance, indefinite detention without trial, or the assassination of American citizens without trial. The lessons of history have been learned well by the administrations that have held power in the US over the past dozen years: war provides refuge for roguish government behavior of all kinds, and nothing quite prepares a populace for the surrender of civil liberties like the threat of an enemy, one whose threat can only be repelled by increasing the powers a state commands.

Second, the surrender of civil liberties is made more palatable when their abuse by the state appears to be directed against a demonized minority. The gullible majority, convinced that these systematic corruptions of the Bill of Rights remain confined to just this hapless lot, and convinced that their liberties are being protected as a consequence, gladly sign on and form cheering squads, unaware that soon the baleful eye of the powers-that-be will be turned upon them. In the American context  Muslim-Americans have borne the brunt of the the post-911 ravishing of the Bill of Rights. There is little sympathy for them in most parts of the American polity, but the damage done to what is considered ‘normal’ is real enough. Our civil liberties were, and are, next.

Third, yesterday’s ‘extreme’ or ‘radical’ is today’s normal. When the Patriot Act was first passed, it provoked vigorous debate and contestation even in a country still traumatized by 9/11. Its renewals have provoked little debate and attention. We live in a post-Patriot Act US. Its draconian provisions are now the new normal. In this context, I’d like to note once again, the seemingly-useless but very-effective-in-getting-citizens-used-to-the-idea-of-random-searches subway searches in New York City.

Greenwald spoke on a great deal more, including, most importantly, how concerted, determined, political activism by the citizenry still remains, the only and best way to safeguard and preserve the Bill of Rights.

My brief notes above are merely a sampler; catch him at a speaking venue near you if you can.