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.
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 email@example.com