It Is Dangerous to Be Right When the Government Is Wrong

by Andrew P. Napolitano

  To Love and to Cherish, Till the State Do Us Part

  In 1996, Congress enacted and President Clinton signed the Defense of Marriage Act (DOMA), defining marriage as “a legal union between one man and one woman as husband and wife,” and providing that states need not recognize same-sex marriages from other states.19 Currently, thirty-seven states have their own acts similar to DOMA, and two states have stronger language defining marriage as only between one man and one woman.20 Additionally, Section 3 of DOMA relates to the unconstitutional federal benefits married couples receive. In fact, in January 1997 the General Accountability Office issued a report clarifying the impact DOMA has on federal laws. The report concluded that 1,049 federal laws are affected. These laws include those relating to welfare programs such as Social Security, health benefits, and taxation.21 A subsequent study in 2004 found 1,138 federal laws “tied benefits, protections, rights, or responsibilities to marital status.”22 How has the institution of marriage, which governments traditionally never regulated, become an institution tied to more than 1,138 federal laws?

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  In 2010, a federal district court judge in Massachusetts found the section of DOMA that permitted states to grant or withhold benefits based on the sexual orientation of one’s marital partner to be unconstitutional because it violated the Equal Protection Clause embodied in the Due Process Clause of the Fifth Amendment.23 In Gill v. Office of Personnel Management (2010), Judge Joseph L. Tauro embraced the view that the states historically were in charge of requirements for marriage, and it is not a constitutional concern of the federal government; rather, the individual states are to make this determination. Judge Tauro held that DOMA encroaches on “a historically entrenched tradition of federal reliance on state marital status determination.” Moreover, in dismissing the government’s justifications for the Act, Judge Tauro concluded only “irrational prejudice” motivated the classification of same-sex couples as separate from heterosexual couples. Thus, DOMA violates the Fifth Amendment’s mandate of equal protection.

  In the companion case to Gill, called Commonwealth of Massachusetts v. United States Department of Health and Human Services (2010), Judge Tauro concluded DOMA was also unconstitutional under the Tenth Amendment. The Tenth Amendment states in relevant part, “The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively.”24 As noted previously, historically the states determine the necessary conditions for marriage within their boundaries because nowhere in the Constitution is there a granting of congressional power to make these determinations. Thus, a disparity exists when Congress enacts laws, such as DOMA, regulating behaviors that the states previously regulated.

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  This case was brought by the State of Massachusetts because in 2004, the State decided to recognize same-sex marriages. In fact, as of February 12th 2010, Massachusetts issued marriage licenses to at least 15,214 same-sex couples.25 Unfortunately, because of DOMA, these couples’ marriages are not recognized in all states, and individuals are unable to receive the unconstitutional, but federally provided, benefits granted to heterosexual couples. Despite the government’s attempt to regulate local matters and interfere with your personal decision to marry whom you choose, Judge Tauro correctly decided the case. He first acknowledged that “family law, including ‘declarations of status, e.g. marriage, annulment, divorce, custody and paternity,’ is often held out as the archetypal area of local concern.”26 Judge Tauro then concluded that by enacting DOMA, the federal government “encroaches upon the firmly entrenched province of the state, and, in doing so, offends the Tenth Amendment.”27

  While these decisions are a great step forward for marriage equality and respect for the natural right of privacy in choosing a life partner, Judge Tauro errs in relying on the historical approach of recognizing state marital status determinations. The history of our nation does include state determinations of who may marry whom; however, just because a power is entrenched in history does not make it correct. Neither the federal government nor the state governments should interfere with private decisions to marry because those decisions are unique to individuals—they are made, figuratively and literally, in the heart of privacy. They are the essence of personal behavior immune from government—state or federal—intrusion or regulation. Without any interference from the federal or state government, you choose what college to attend, what career to pursue, where you want to reside; likewise, you should be free to choose whom you want to marry.

  Another step forward has come with a recent federal district court’s ruling that Proposition 8 in California is unconstitutional. California’s Proposition 8, passed by voters in 2008, mandates that marriage can only be between a man and a woman. Judge Vaughn Walker struck it down on the basis that it violated the right to marry, or stated otherwise, that the right to choose a marital partner does not require the permission of your neighbors or the voters or the government. He enforced the right to be left alone.

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  Judge Walker stated that

  the right to marry has been historically and remains the right to choose a spouse and, with mutual consent, join together and form a household . . . same-sex couples are situated identically to opposite-sex couples in terms of their ability to perform the rights and obligations of marriage under California law.

  Thus, there can be no legitimate reason for differential treatment. And as to the claim that such marriages were not procreative in function, Judge Walker noted that the state has never inquired into mixed-sex couples’ capacity to reproduce in deciding whether to grant a marriage license. Such a world would be no less despotic or terrifying than the Third Reich, with its policies of eugenics and forced sterilization! This judicial giant reminds us that if it were not for an independent judiciary, which is committed to the Constitution, nothing would prevent a runaway majority from taking the liberty or the property of the minority. Government can’t be trusted. And every once in a while, judges will stop the beast in its tracks.

  The Government’s Intrusion on This Right: Sexual Freedom

  While Americans readily accept the government’s intrusion on the institution of marriage, there is greater push back on private matters concerning our bodies. Take, for example, the contentious issue of contraception. Imagine meeting someone and falling madly in love. You decide to take the big “leap” and invite all of your family and friends to help you celebrate. Inevitably, your mother and father begin to ask when they can expect grandkids, but you refrain from giving a precise date because you and your spouse have decided to pursue your respective careers. While this response sounds practical, it was not always feasible.

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  As recently as 1965, Connecticut law prohibited the possession, sale, and distribution of contraceptives to married couples. While the Supreme Court concluded the law was unconstitutional, the reasoning behind this conclusion was far from unanimous. Justice Douglas wrote of the famous “penumbras” and “emanations” of various Bill of Rights guarantees creating a zone of privacy, while Justice Goldberg relied on the Ninth Amendment’s language of “other rights retained by the people,” and Justice Harlan argued the Fourteenth Amendment’s Liberty Clause forbids government conduct which is inconsistent with “the concept of ordered liberty.”28 Despite the convoluted reasoning, the Court correctly decided the case and recognized the Constitution’s protection of a “zone of privacy”—an area of human behavior immune from government intrusion or regulation. The Court illustrated this point when it wrote, “Would we allow the police to search the sacred precincts of marital bedrooms for telltale signs of the use of contraceptives? The very idea is repulsive to the notions of privacy.”29

  What Happens in Vegas Stays in Vegas?

  Las Vegas. Sin City. City of Lights. Entertainment Capital of the World. Whatever you want to call it, Las Vegas is perhaps one of the most liberated cities in the country. In fact, if there ever was a time you and your fr
iends wanted to engage in undocumented activities, it would most likely be while you were in Las Vegas. In Las Vegas you can enjoy alcohol on the streets, gamble all night, frequent gentlemen’s clubs, and even get married in an hour and divorced the next day. Many ordinary folks want to go to Las Vegas just to blow off a little steam. And what better time to go than the Christmas season and New Year’s Eve? Right?

  Wrong. If you were one of the millions of individuals traveling to Las Vegas during the Christmas season of 2003, you are most likely in a government database created in an attempt to track terrorists. However, your name is not the only item in the database. Your airline carrier? Check. Hotel where you stayed? Check. Casinos you visited? Check. Rental car company? Check. The locker you rented from a storage company? Check. Yes, government officials legally collected and analyzed data on more than one million people during the 2003 Christmas season. How was this legal?

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  The Most Un-patriotic of Acts

  You probably did not realize the government had legal authority to track individuals’ every move. It does; and this legal authority continuously expands in the effort to fight the War on Terror. In response to monumental invasions of privacy, such as the events in Las Vegas, the government claims it is not invading your natural right to privacy, but rather, is attempting to prevent further terrorist attacks. Do you buy this? I don’t. As Benjamin Franklin stated, “Those who would give up essential liberty, to purchase a little temporary safety, deserve neither liberty nor safety.”

  And give up liberty we have. In the months after the attacks of September 11th 2001, our country was frantic. More than three thousand lives were lost, and our nation was blindsided by the murderous attacks. The government felt a need to respond, and on October 26th 2001, President Bush signed into law the Uniting and Strengthening America by Providing Appropriate Tools Required to Intercept and Obstruct Terrorism Act of 2001 (USA Patriot Act). And despite what many in Congress would like you to believe, the Patriot Act was not just President Bush’s doing. No, the Patriot Act passed both houses almost unanimously with only Senator Russ Feingold30 in the Senate and Congressman Ron Paul and sixty-five others in the House voting against the bill.31

  Positivists (who think they can write any laws), like President George W. Bush, and Progressives (who think the government can trump the Natural Law), like President Barack Obama, defend the Act as essential to the security of the nation; in reality, it is an all-out assault on the right to privacy. More specifically, it directly violates the Fourth Amendment right against “unreasonable searches and seizures” and facilitates the issuance of warrants without “probable cause.”32 The government now uses what it publicly calls National Security Letters, or self-written search warrants, and “sneak and peek” warrants to invade your privacy.

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  Self-written search warrants are provided for in Section 505 of the Patriot Act. The Federal Bureau of Investigation (FBI) describes one of these warrants as “a letter request for information from a third party that is issued by the FBI or by other government agencies with authority to conduct national security investigations.”33 And while the FBI claims other government agencies have the authority to issue these letters, it also states that currently only the “most senior FBI officials” possess the authority to approve National Security Letters.34 Thus, rather than risking a judge denying a search warrant request, the FBI requests National Security Letters, and the FBI approves these requests!

  Moreover, Section 505 is not narrowly tailored to limited circumstances. Rather it is limited to personal records from financial institutions, which are broadly interpreted, and the ridiculous list of financial institutions includes pawnbrokers; travel agencies; car, airplane, and boat dealerships; casinos; medical records; supermarket records; legal records; computer keystrokes; and finally, the institution with which we all engage in our most important financial transactions—the post office. Even the United States Postal Service is considered a financial institution under Section 505. When did sending a letter to grandma become the financial equivalent of dealing with a broker registered with the Securities and Exchange Commission? The government’s designation of different institutions as “financial” is now so vast that it intrudes on our daily rituals. So, if you were wondering how the government obtained all that information in Las Vegas, wonder no more. In fact, on its Web site the FBI lists the following as information obtainable through self-written search warrants: subscriber information, toll billing records, Internet service provider login records, electronic communication transaction records, financial records, money transfers, credit records, and other consumer identifying information.35 However, it does not inform the reader of how much information is included in the “other consumer identifying information” category.

  Additionally, with the passage of the Patriot Act, self-written search warrants are permitted on a host of new subjects, and the Act formally rejected the protections against criminal prosecutions by its predecessors. Before the Patriot Act, if the nation’s intelligence agencies came upon evidence of a crime and came upon it by unlawful means, they could not turn it over to prosecutors. After the Patriot Act, they have been required to turn such evidence over to prosecutors. In fact, the Act requires government investigators to turn over to government prosecutors the unconstitutionally obtained evidence. The Act also mandates the evidence obtained from these wildly unconstitutional self-authorized search warrants is “constitutionally competent” in criminal prosecutions.36 Thus, until this section of the Act is challenged, the obtained evidence is currently “legal” under federal law, but unconstitutional at the same time because it violates the Fourth Amendment. It is bizarre, indeed, for a thing to be both legal and unconstitutional. Since the Constitution is the “supreme Law of the Land” (as it so states in Article VI), that would make it the rule of law, the baseline below which no government entity (that would include votes by Congress and signatures of presidents) may go. Thus, anything that is unconstitutional must also be unlawful.

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  As we have seen, the Fourth Amendment protects against warrants being issued without probable cause, an oath or affirmation, and the specification of the “place to be searched” and “the persons or things to be seized.” Self-written search warrants do not fulfill any of these requirements. Government officials now have the authority to issue blanket self-written search warrants without an oath or affirmation before any judge. These search warrants do not need to describe a particular location, device, or individual for which they are issued, clearly violating the Fourth Amendment and the right to be secure in our “persons, houses, papers, and effects.” Moreover, while the government maintains self-written search warrants are “an indispensable tool and building block of an investigation that contributes significantly to the FBI’s ability to carry out its national security responsibilities by directly supporting the furtherance of the counterterrorism, counterintelligence and intelligence missions,” the statistics paint another portrait.37

  A 2007 Justice Department Inspector General audit revealed that not only were self-written search warrants being used to prosecute ordinary criminal activity unrelated to national security, but also government officials misused their authority by evading limits on the self-written search warrants and underreporting the number of warrants issued. Even though these abuses were revealed, the most recent Department of Justice report to Congress shows the use of self-written search warrants is increasing dramatically. For example, in 2008, 24,744 were issued, compared to 16,804 in 2007.38

  If self-written search warrants were not bad enough, Section 213 concerning “sneak and peek” warrants further invades your natural right to privacy. This section amended the section of the United States Code on the “Effect of Rules of Court,” and allows for a “delayed notice” of search warrants, meaning a target, whose home or business is searched, is not immediately notified.39 Thus, government officials can enter your home, search for evidence, and then use t
he evidence in a criminal investigation, without telling you until eighteen months later.

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  If not for the seriousness of the subject matter, it is almost laughable that the government attempts to argue the constitutionality of these actions. Let me correct myself. The government will sometimes argue the constitutionality of these actions. Why sometimes? Because the government does not want to take these cases to the Supreme Court for fear that the Court will rule the entire Patriot Act unconstitutional; it instead manipulates the judicial system and leaves it to the lower federal courts to issue holdings on each issue, thus leaving a legal system with opposing precedents relating to your constitutional right of privacy.

  You Were Searching for What on the Internet?!

  Now you may be saying to yourself, I want America to be secure and free from terrorists, and I don’t have anything to hide, so why should I care if the government is tracking my trips to Las Vegas or illegally enters my home? Well, you may not have anything to hide now, but what if you got caught up with the wrong crowd and because of mere association were charged with a crime? Then would you be okay with the government using this illegally obtained evidence against you? Would you care if the government read your mail before you received it, and requested information on the Web sites you visited or the searches you performed through your Web browser?

  Yes, the government is even willing to go so far as to ask private Internet companies for an index of the Web and information on users’ searches. For example, in 2006, the government requested this information from a number of companies including Google. Google’s chief legal officer, David Drummond, decided to fight against these government requests that blatantly violate the right to privacy while on the Internet. Unfortunately, Google lost in court and ultimately handed over the information. However, despite losing the legal battle, in April 2010, Google launched a “Government Request Tool,” detailing the requests of worldwide governments to take down content, or to turn over information, relating to the uses of its search engine, YouTube, and its blogging software.40 To no surprise, the United States government ranked second in data requests, with 3,580. To gain perspective, this is more than three times the next government’s requests, which happens to be one of our closest allies, the United Kingdom.41 As a user of Gmail, YouTube, or the Google search engine, you must stay vigilant and aware of your right to privacy.