• Snowden v. Marbury v. Korematsu

    by Tyler Dellow • June 11, 2013 • Uncategorized • 16 Comments

    Those of you who didn’t suffer through classes in legal history and constitutional law may be surprised to learn that, in the early days of the United States, the question of who decided what was constitutional and what was to be done about it was a matter of some controversy. Canadians today, particularly those of us who have grown up during the Charter era, might find it incomprehensible but there was some dispute about whether or not the courts had the power to not just declare an action to be unconstitutional but say to the other branches, in effect, “Hey – knock it off.”

    In the United States, the famous case addressing this question is Marbury v. Madison. It’s a pretty boring case, in all honesty. Wikipedia has a good summary of the critical point I want to reference here. Chief Justice Marshall, who wrote the decision, found that the Constitution and the Judiciary Act conflicted. The legislative and executive branches had passed an unconstitutional law. What should be done when that happened? From Wikipedia:

    This conflict raised the important question of what happens when an Act of Congress conflicts with the Constitution. Marshall answered that Acts of Congress that conflict with the Constitution are not law and the Courts are bound instead to follow the Constitution, affirming the principle of judicial review. In support of this position Marshall looked to the nature of the written Constitution—there would be no point of having a written Constitution if the courts could just ignore it. “To what purpose are powers limited, and to what purpose is that limitation committed to writing, if these limits may, at any time, be passed by those intended to be restrained?” Marshall also argued that the very nature of the judicial function requires courts to make this determination. Since it is a court’s duty to decide cases, courts have to be able to decide what law applies to each case. Therefore, if two laws conflict with each other, a court must decide which law applies. Finally, Marshall pointed to the judge’s oath requiring them to uphold the Constitution, and to the Supremacy Clause of the Constitution, which lists the “Constitution” before the “laws of the United States.

    “To what purpose are powers limited, and to what purpose is that limitation committed to writing, if these limits may, at any time, be passed by those intended to be restrained?”

    As I read about Edward Snowden, who leaked this story about the extent of the National Security Agency’s data gathering to the Guardian, and then read some of the commentary from establishment types like David Brooks and Jeffrey Toobin, I was reminded of Marbury v. Madison and the dispute about who enforces a constitution and how they enforce it. Thomas Jefferson disagreed with the Supreme Court’s decision. In 1820, he wrote a letter, also referenced on that Wikipedia page, setting out his objections.

    You seem to consider the judges as the ultimate arbiters of all constitutional questions; a very dangerous doctrine indeed, and one which would place us under the despotism of an oligarchy. Our judges are as honest as other men, and not more so. They have, with others, the same passions for party, for power, and the privilege of their corps…. Their power [is] the more dangerous as they are in office for life, and not responsible, as the other functionaries are, to the elective control. The Constitution has erected no such single tribunal, knowing that to whatever hands confided, with the corruptions of time and party, its members would become despots. It has more wisely made all the departments co-equal and co-sovereign within themselves…

    The judges certainly have more opportunity to act on constitutional questions, because of the laws of meum and tuum and of criminal action, forming the great mass of the system of law, constitute their particular department. When the legislative or executive branches act unconstitutionally, they are responsible to the people in their elective capacity. The exemption of the judges from that is quite dangerous enough. I know of no safe depository of the ultimate powers of the society but the people themselves; and if we think them not enlightened enough to exercise their control with a wholesome discretion, the remedy is not to take it from them, but to inform their discretion by education. That is the true corrective of abuses of constitutional power.

    There’s a lot of merit in what both Marshall and Jefferson are saying. It’s trite law school stuff but a right without a remedy isn’t much of a right. If I can steal your stuff and there are no courts that will make an order that I return it and no mechanism for you to enforce that order once you’ve obtained it, your property rights aren’t worth much. To that extent, I agree with Marshall’s point. I also agree with Jefferson though – judges are like everyone else; they like party and power and privilege as much as the next guy.

    Although Jefferson doesn’t say it, judges are also subject to the same fears as everyone else. And so, in times of fear, judges faced with government lawyers asserting that there are special threats can crumble a little bit. They bend the Constitution to permit things that they might not otherwise permit, reasoning that the government is elected and says that it needs some special power and ultimately it answers to the people.

    The threat that this poses is actually neatly summarized in Frank Murphy’s dissent in one of the cases that was the product of such fear, Korematsu, a WWII case in which the United States Supreme Court concluded that interning American citizens of Japanese ancestry was constitutional:

    …once a judicial opinion rationalizes such an order to show that it conforms to the Constitution, or rather rationalizes the Constitution to show that the Constitution sanctions such an order, the Court for all time has validated the principle of racial discrimination in criminal procedure and of transplanting American citizens. The principle then lies about like a loaded weapon, ready for the hand of any authority that can bring forward a plausible claim of an urgent need. Every repetition imbeds that principle more deeply in our law and thinking and expands it to new purposes.

    There are two threads running through this that I see as applicable in discussing Snowden and rejecting what I see as being a principal argument relied upon by Brooks and Toobin. The first is the idea that courts interpreting and enforcing the Constitution, while better than the alternative of leaving it up to politicians, is still inherently flawed. As Jefferson points out, judges are human too. As we can see from cases like Korematsu, judges are subject to rationalizing the Constitution out of fear.

    Of course, it’s politically and judicially easier when there are secret courts which can make orders permitting the gathering of all sorts of data, shielding both the judge making the order and the executive branch requesting it from public knowledge of what sorts of actions are being approved. It’s also politically easier to just shield a lot of what you’re doing from any sort of judicial review by keeping it secret from everyone.

    Enter Mr. Snowden. Toobin says this about his decision:

    And what of his decision to leak the documents? Doing so was, as he more or less acknowledges, a crime. Any government employee or contractor is warned repeatedly that the unauthorized disclosure of classified information is a crime. But Snowden, apparently, was answering to a higher calling. “When you see everything you realize that some of these things are abusive,” he said. “The awareness of wrongdoing builds up. There was not one morning when I woke up. It was a natural process.” These were legally authorized programs; in the case of Verizon Business’s phone records, Snowden certainly knew this, because he leaked the very court order that approved the continuation of the project. So he wasn’t blowing the whistle on anything illegal; he was exposing something that failed to meet his own standards of propriety. The question, of course, is whether the government can function when all of its employees (and contractors) can take it upon themselves to sabotage the programs they don’t like. That’s what Snowden has done.

    Brooks:

    For society to function well, there have to be basic levels of trust and cooperation, a respect for institutions and deference to common procedures. By deciding to unilaterally leak secret N.S.A. documents, Snowden has betrayed all of these things.

    He betrayed honesty and integrity, the foundation of all cooperative activity. He made explicit and implicit oaths to respect the secrecy of the information with which he was entrusted. He betrayed his oaths.

    He betrayed his friends. Anybody who worked with him will be suspect. Young people in positions like that will no longer be trusted with responsibility for fear that they will turn into another Snowden.

    He betrayed his employers. Booz Allen and the C.I.A. took a high-school dropout and offered him positions with lavish salaries. He is violating the honor codes of all those who enabled him to rise.

    He betrayed the cause of open government. Every time there is a leak like this, the powers that be close the circle of trust a little tighter. They limit debate a little more.

    He betrayed the privacy of us all. If federal security agencies can’t do vast data sweeps, they will inevitably revert to the older, more intrusive eavesdropping methods.

    He betrayed the Constitution. The founders did not create the United States so that some solitary 29-year-old could make unilateral decisions about what should be exposed. Snowden self-indulgently short-circuited the democratic structures of accountability, putting his own preferences above everything else.

    But before they do, you hope they will interrogate themselves closely and force themselves to confront various barriers of resistance. Is the information so grave that it’s worth betraying an oath, circumventing the established decision-making procedures, unilaterally exposing secrets that can never be reclassified?

    Judging by his comments reported in the news media so far, Snowden was obsessed with the danger of data mining but completely oblivious to his betrayals and toward the damage he has done to social arrangements and the invisible bonds that hold them together.

    A constitution is really just an attempt to codify some basic principles about how a group of people will live and what protections they’ll have. If you’ve got a good constitution, when you’re talking about whether something is constitutional or not, you’re talking about whether it meets a kind of shared community belief about what’s right.

    The law, and judges and politicians, have no monopoly on what is right. Judges and politicians are people and the law is created by people – it’s all fallible. Really, that’s what Marshall and Jefferson were talking about – how do we best safeguard a particular version of what is right, as was set out in the US Constitution, when dealing with fallible men? It’s what the dissenting justice in Korematsu was talking about – his fear that changing our understanding of what’s right due to special circumstances makes it easier and easier to change our understanding of what’s right in lesser and lesser circumstances until, one day, the law doesn’t reflect what’s right anymore.

    Where Toobin and Brooks lose me is with their implied assertions that if it’s legal, it’s right, or almost surely right. That fails to account for the fallibility of the men and women who decide whether it’s legal. In order for their argument on this point to be correct, “legal” and “right” have to be synonyms. I’m pretty sure that they aren’t – there are tons of examples throughout history of things that were legal in a certain place but not right. If young Edward Schnee fled Germany in 1940 with copies of plans for death camps that he’d stolen from the defence contractor for whom he worked and distributed them to the British and American press, that Brooks passage would be almost exactly applicable. Would he make the same argument?

    It’s sort of ironic that one of the arguments that you hear in support of this sort of data gathering is that if you aren’t doing anything wrong, you have nothing to worry about. It strikes me that the same is true of the US government – nobody leaks on secret programs run by the Department of Agriculture, presumably because nobody involved in whatever secret programs they might be operating finds them troubling. Massive data gathering programs run by the NSA? It turns out that that’s a different story. If they weren’t doing anything that a reasonable person might conclude is wrong, they’d probably have nothing to worry about in terms of leaks. People would run through that list of people Brooks says Snowden has betrayed and stay silent. The same is true of the Wikileaks stuff – maybe Bradley Manning is mentally ill but if the Americans weren’t shooting kids from helicopters, he may not have felt the moral imperative to do what he did. If you aren’t doing anything wrong, you have nothing to worry about.

    I don’t really have a firm opinion yet on whether what Snowden did was right. I lean towards thinking it was – I feel a general revulsion towards the state intruding into people’s lives – but I don’t know enough of the ins and outs of the story to have arrived at a firm conclusion. I do know that something people have struggled with as long as there have been states is finding a way to balance the power of the state with the rights of the individual not to be bothered by or spied upon by the state, in the absence of some real cause.

    Ultimately, I think that Jefferson had it right: there is no safe depository of the ultimate powers of the society but the people themselves. (I’m suspicious of the people too but we’re talking least worst options here.) We can’t trust politicians and courts to safeguard us from the state for the reasons that he and Murphy identified. I’m a cynic about constitutional law but I tend to think that it’s politics dressed up as law – the courts can tell which way the wind is blowing and know enough to preserve their space by bending when appropriate. If there’s going to be some restraint on the part of the American government in terms of engaging in surveillance, it will come because the people demand it, creating an atmosphere in which politicians who believe in balancing security and liberty are elected and judges don’t fear a backlash from robustly interpreting constitutional safeguards.

    I think that there’s a pretty good argument that what Snowden did was in the service of the ideals codified in the American constitution. Courts and politicians are one way in which those ideals are protected but they’re fallible. The existence of people like him, who will expose things that are happening that may not fit with what Americans expect their state to be about, is another way in which those ideals are protected. It’s a dangerous way of doing things – he essentially needs the American people to rise up and say that they won’t accept any consequences for him or he faces, at best, a life in exile – but I can’t say that it’s an inherently wrong way of doing things in extreme circumstances.

    Email Tyler Dellow at mc79hockey@gmail.com

    About Tyler Dellow

    16 Responses to Snowden v. Marbury v. Korematsu

    1. 67sound
      June 11, 2013 at

      Great piece. I think it points to one of the under-recognized problems with judicial review–namely, an impoverished public debate about whether something is in fact constitutional. I think there’s a tendency among lawmakers to pass laws based on political expediency or efficacy, without considering constitutionality. Would lawmakers consider the constitution more without a judicial branch that has assumed that task for itself? I don’t honestly know. I do think it is a good thing, however, if more people consider the constitutionality or justice of laws for themselves rather than just assuming that if it’s legal it’s properly enforceable until the courts say otherwise.

      • Tyler Dellow
        June 11, 2013 at

        I believe, in Canada anyway, there’s an obligation on the part of the government to consider the constitutionality of laws that it presents to the House. No idea what goes on in America.

        • Stephan Cooper
          June 11, 2013 at

          There is an obligation, but it was recently revealed that the DoJ lawyers who review them have to be more than 95% sure its unconstitutional before recommending that the bill not be passed. So no bill has ever been flagged for violating the Charter.

          • Random Name
            June 23, 2013 at

            It’s Canada’s constitution. A lot of people might like that constitution but Canada also has these three things:
            1. the Dreidger or contextual method of statutory interpretation of legislation;
            2. Section 1; and
            3. Living tree constitutional theory.

            There are other factors that add to randomness but those are the three that stick out to me. I can’t think of a single (hypothetical or real) piece of legislation that I would guarantee would violate the Canadian constitution.

        • Pierce Cunneen
          June 12, 2013 at

          In America, our dumb politicians just tend to ignore the Constitution whenever they feel like it (see NSA scandal)

    2. Matt
      June 11, 2013 at

      Great thought provoking article, one that I think highlights the tensions present in American law. One thought that I had while reading is that to some extent there seems to be a rebuttable presumption that a law is right based upon the representative system of government in theory, but in practice that presumption is simply unworkable.

    3. theconrod
      June 11, 2013 at

      Wow. Fantastic. Thank you for this. Gives a brilliant overall perspective on the issue, and was truly a fun read. Being forwarded to everyone.

    4. Axeman
      June 11, 2013 at

      Great discussion. I tend to think that the dissent in Korematsu is a badly overlooked point. Contractors and businessmen always talk about scope creep on a project – this is serious scope creep, and I don’t think it’s paranoid to worry about it. My background is law and order, but I’m more and more repelled by the insinuation of gov’t deeper into our lives. Whereas 10-15 years ago I would have automatically gone with the “if you’re not doing anything you have no problem” argument, I now understand how ridiculous that side of the discussion is.

      I liked your paragraph about not yet having a firm opinion. We don’t have all the facts – we may never – and jumping to a hard and fast conclusion (probably based on ideology) would be stupid. But it’s hard not to squirm, isn’t it?

      The security / liberty argument has been ongoing forever. I’m inclined to think that very soon we’re going to have to make some serious choices about it. 100 years ago – hell, ten years ago – the government did not have the ability to invade our privacy anyhwere near the way they can now. There is an existential choice to be made, and western society as a whole has been able to put it off up to now. Events like the Snowden revelations may make it more obvious to people that, as you noted, the only way things change is if people demand it.

    5. Tach
      June 11, 2013 at

      Very nice piece. I’m more inclined to the views of Brooks and Toobin. In many ways the constitution is a system for sorting out disputes over what is right and wrong. In this case, Snowden essentially took it upon himself to make that determination for all of us. How is his personal, unelected, unaccountable view of morality any superior to the judge’s or the NSA staff’s? He disagreed with the system, but by breaking the rules of the system will suffer the consequences set out by he system and, in my view, deservedly so.

      Which is not to say I agree with the surveillance being conducted. I think it is wrong, even if legal. The biggest failing that I see in the whole piece is that the judicial oversight of the surveillance was rendered in secret. Courts are a creature of adversarial proceedings, but in this case there was only the government case. Who presented the case for the people who became incidentally surveilled?

      I see no reason why, keeping some secrets in hand, a Court could not have had some kind of hearing on the matter and rendered a public decision. The Court may still have upheld the program, but then the government would also have had to bear popular scrutiny which may or may not have agreed with the judicial opinion.

      • June 11, 2013 at

        How do you reconcile the opinion that the surveillance being conducted is wrong with the opinion that the guy who revealed the existence of said surveillance is deserving of the consequences he will likely incur?

        In many cases, we don’t want to look over that wall or inside of that box, because we don’t want to see how the sausage is made. In some cases (more and more these days) we’re just too lazy. And in other cases, we’re told that we’re not allowed to look over the wall, and obviously those on the other side of the wall have a vested interest in not telling us what’s going on over there. Maybe that’s on us for being fat, lazy bastards who are perfectly content to be distracted and cowed into not looking into certain boxes or peeking over certain walls. We still need someone to let us know when what’s going on in the box or over the wall isn’t exactly kosher. I think we kind of owe it to those who are willing to step up and say “HEY LOOK OVER HERE!” to protect them for the service that they’ve done in letting us know something unseemly is happening. Abandoning them to the wolves that they’ve revealed to us seems ungrateful for something we should be exceedingly grateful for. Abandoning them ends up amounting to an admission that whatever they’re whistleblowing on is ultimately acceptable.

        • June 12, 2013 at

          “There are times, sir, when men of good conscience cannot blindly follow orders.”

    6. godot10
      June 11, 2013 at

      Fantastic piece, mc79!

      1) This is why I like the notwithstanding clause in the Canadian Constitution. It is an explicit admission that sometimes the legislature can be wrong, and that sometimes the courts can be wrong, but it set a high threshold for the legislature to overrule the courts, and forces the issue to be revisited by new sets of eyes in five years.

      2) Jury nullification is also another reflection of the issue the the legal establishment can sometimes be wrong. I doubt Snowden is ever allowed a jury trial.

      3) Kierkegaard dealt with this issue. The “teleological suspension of the ethical”, which focuses on the Abraham-Isaac story where God orders Abraham to make a sacrifice of Isaac. What is the right thing to do when God asks you to sacrifice your child? One of the commandments is to always obey God. i.e. What is the right thing to do when the State asks you to do something that seems obviously wrong, even though it is prima facie legal.

      Or as I sometimes like to frame the issue from “The Church of Spike Lee”….i.e. “Do the Right Thing”. i.e. The principle is simple. The difficult part in the most troubling and puzzling issues is determining what the right thing to do is. Legal does not make something Right. The set called “The Law” and the set call “Right actions” are not identical sets.

      Snowden has basically put the judgement of whether his action was justifiable in the hands of the people. The State and the Establishment will likely crucify him in some “court”, but the people now, over time, will be the deciders of whether he “did the right thing”. The people will not likely be able to save his life.

      It is difficult to have any respect for Obama who whenever he sees a gopher run down a gopher hole, he drops a drone missile on it. (Which is worse, fiat murder with associated innocents as collateral damage, or Bush’s way of sending the bas%#% to Guantanamo?) And even though there were monstrous financial crimes committed relating to mortgage finance and structured credit which triggered the global economic crisis, Obama has yet to even charge a single bankster. Not only to big to fail, but to big to prosecute. And what is even worse, the banksters and Wall Street got bailed out, but Main Street wasn’t, and the tab for the bailout was handed to the people.

    7. Tom Benjamin
      June 12, 2013 at

      I agree with almost everything you write Tyler, (although I do favour Marshall over Jefferson) and I’m not very happy that security forces collect phone call records. The best argument against doing it is the slippery slope. Eventually these types of systems are always abused, and we should be prepared to acknowledge that surveillance creep will only go in one direction. The security apparatus built during the Cold War to protect against Soviet spying was easily turned against Martin Luther King and the Civil Rights movement.

      That said, I think we have our eyes on the wrong threat. We don’t live in Orwell’s “1984″ and we probably do not have to fear Big Brother. We live in Huxley’s “Brave New World”. Our governments are not taking our liberty or privacy with force now and they probably won’t in the future. They don’t have to because we’ll happily give it away to anyone who asks as long as we have our hamburgers, our cell phones and our hockey. We’ll even pretend we have not lost anything.

      Note that the government is not directly collecting anything with these programs. Corporations are collecting the data from us. Why are we afraid of a Big Brother who does not exist without worrying about what Google or Facebook or Verizon or Visa is doing with our data? Its okay if they invade our privacy to determine the most effective way to influence our behaviour or sell to us? At least the government has a laudable goal when they invade and it is hard to imagine how a record of my phone calls can either help the government or hurt me. Verizon just wants to more effectively separate me from my money. When they invade my privacy they gain and I lose.

      We haven’t heard that much yet about the details of the 2012 campaigns but we do know that the Obama campaign used public information and purchased databases to identify all of their voters in swing states. Tom Benjamin buys Brand X toilet paper? He’s almost certainly a Romney voter. Brand Y? We know how he thinks! He’s one of ours! Make sure he gets out to the polls! If an Obama voter can be easily identified with public information and consumption patterns, why not serial killers? Is it reasonable to develop a profile of serial killers and datamine for suspects in an area where bodies are being found? Or should datamining be limited to commercial ends?

      As I understand the 4th amendment a search is partly defined by whether a person can reasonably expect privacy in the thing being searched. I think we are very close to the point that no reasonable person can expect privacy when shopping, when talking on the phone, when using the internet or even when walking down the street. I don’t expect it and I govern myself accordingly.

      If there’s going to be some restraint on the part of the American government in terms of engaging in surveillance, it will come because the people demand it, creating an atmosphere in which politicians who believe in balancing security and liberty are elected and judges don’t fear a backlash from robustly interpreting constitutional safeguards.

      I think this ship has sailed. We aren’t going to demand anything except more stuff. If a record of that stuff goes into a databank that is used to help define us, well, at least its neat stuff.

    8. Riley
      June 13, 2013 at

      You bring a lot of interesting details and ideas to the Snowden topic.
      I think he did right in a situation where he unfortunately had to betray coworkers and do some damage to an institution that relies on cooperation to function. But it was an all or nothing situation, and those things couldn’t be avoided.
      I agree with your take on it insofar as I understand the details. As a non-lawyer, I could only say my view on law comes from an armchair philosophy vantage point which of course may say nothing about how the law actually works. But I’d say that laws are a reflection of morals which are ideas that people agree upon as best they can when deciding what kind of society they want to live in. (I believe Richard Rorty is a source for that). I tend to think that most Americans would be against the phone tapping, and as such, I’d hope that Snowden would be largely unprosecuted. People that support him, should push their viewpoint as being the people’s will whether his case is favorable or not, and hope that that makes a difference.

    9. Riley
      June 13, 2013 at

      You bring a lot of interesting details and ideas to the Snowden topic.
      I think he did right in a situation where he unfortunately had to betray coworkers and do some damage to an institution that relies on cooperation to function. But it was an all or nothing situation, and those things couldn’t be avoided.
      I agree with your take on it insofar as I understand the details. As a non-lawyer, I could only say my view on law comes from an armchair philosophy vantage point which of course may say nothing about how the law actually works. But I’d say that laws are a reflection of morals which are ideas that people agree upon as best they can when deciding what kind of society they want to live in. (I believe Richard Rorty is a source for that). I tend to think that most Americans would be against the phone tapping, and as such, I’d hope that Snowden would be largely unprosecuted. People that support him, should push their viewpoint as being the people’s will whether his case is favorable or not, and hope that that makes a difference.

    10. Randall Shermer
      June 27, 2013 at

      I think you make a strong point in the final paragraph. Snowden is one of The People, in addition to being (former) establishment. Which is true for thousands of people in comparable positions. Whether one thinks what he did was right, he is a recursive loop on the overall issue. Whistleblowers (and similar, like conscientious objectors) are just people operating in an organization and are fallible like judges; but in this way they may serve to constrain the absolute grip on secrecy that might be enjoyed. Whether they receive or deserve consequences of their actions is almost secondary to this fact: the control system breaks down. With a framer’s love for checks and balances surely they would at least understand this one. One wonders (or maybe disciples of Nash wonder) if there is an optimal range of leakiness in systems that are maximally trustworthy.

      I hope the Snowden affair brings a richer discussion of tradeoffs. “If you have nothing to hide you have nothing to fear” is distraction from the question of whether the benefits are worth the cost. This was the question of the Patriot Act and for me it is still a question I struggle with. Is good and stable government and society necessarily rather messy and requiring acceptance of certain risks and losses?

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