Like all U.S. government officials, U.S. Supreme Court justices are bound by oath to support and defend the Constitution of the United States. The Constitution’s Fourth Amendment commands that “the right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated”. Yet recently, when asked about the NSA’s blanket electronic surveillance programs, Justice Antonin Scalia responded:
“…when you board a plane someone can pass his hands all over your body. That’s a terrible intrusion, but given the danger that it’s guarding against it’s not an unreasonable intrusion. And it can be the same thing with acquiring this data that is regarded as effects. That’s why I say it’s foolish to have us make the decision because I don’t know how serious the danger is in this NSA stuff, I really don’t.”
Justice Scalia’s plea that, in security matters, ignorance excuses the Justices’ dereliction of their sworn duty to support and defend the Constitution, opens the way to unlimited executive abuse, for which no remedy is to be expected short of civil war. Tragically, Justice Scalia seems quite willing to accept this as inevitable. In another context, when asked about the Constitutionality of the income tax, he reportedly asserted that “the government has the constitutional right to implement the tax, ‘but if it reaches a certain point, perhaps you should revolt.’”
The Supreme Court has the duty to take account of the Constitution’s provisions respecting the rights of the people. Scalia’s careless attitude toward that duty would be shocking in any Supreme Court Justice. It’s especially ominous, however, when it comes from a Justice people trust to conserve the Constitution’s respect for what James Madison called “the fundamental principles of the [American] Revolution”. In Federalist 39 Madison made reference to these principles in connection with “the honorable determination which animates every votary of freedom to rest all our political experiments on the capacity of mankind for self-government. If the plan of the convention, therefore, be found to depart from the republican character, its advocates must abandon it as no longer defensible.”
Most conservatives probably (and foolishly, it now appears) expect Justice Scalia, of all people, to apply Madison’s rubric of acceptability to cases brought before the U.S. Supreme Court. They expect him to take seriously the statement of principles with which the American Revolution began, including, first of all, the premise that acknowledges God-endowed unalienable rights. It states, without exception, that “to secure these rights governments are instituted among men.”
If Scalia were the constitutional conservative many people think he is, this premise would have a constant and direct bearing on his thinking about issues of national security. He could be counted on never to consider national security claims without keeping in mind that any security measure that violates unalienable rights demands scrupulous justification, because it purports to achieve security by attacking what government exists to secure. This is patently unreasonable, on the face of it.
The 4th Amendment was adopted precisely in order to make sure that Americans would always have a Constitutional basis for challenging policies that substantially abandon republican principle in this irrational way. Of course, by referring to the security of persons, the language of the 4th Amendment avoids the converse self-contradiction, which insists that government routinely sacrifice the security of particular persons in order formally to respect the premises of their security as a free people.
Obviously, to satisfy the 4th amendment’s security requirements those responsible for government’s activities must take account of what those activities imply for the overall security of each right, as well as their actual impact on the security of persons. Sound judgment is imperative, in order to assure a properly Constitutional result. In Federalist 78 Hamilton accurately observes that “the judiciary may truly be said to have neither FORCE nor WILL, but merely judgment.” Making sure that government action will be judiciously guided by the principles, constitutional provisions, and laws that are supposed to constrain it, is the main reason for vesting a separate and distinct branch of government with the judicial power.
People familiar with Montesquieu’s description of government powers in his work On the Spirit of the Laws, (as America’s prevalent founders certainly were,) will be familiar with his observation that the power of judgment is essentially a species of executive power. (Bk XI.6.¶2) Therefore it’s not surprising that, as a separate branch of government the Judiciary is, in principle, always dependent on the Executive for the execution of its judgments. When it comes to security issues, however, it must also depend on the Executive for the information on which to base its judgments.
Therefore, when it comes to possible abuses of the Executive’s security powers, the Executive can always withhold information from the Judiciary, effectively precluding constitutional oversight. By pleading ignorance to excuse the Supreme Court’s dereliction of duty, Justice Scalia simply surrenders to this abusive evasion, effectively erasing the separation of powers on the national security front. Instead, the Court should demand, under penalty of law, the information it requires to do its duty.
This demand would be a prelude to appealing to the U.S. Congress for aid. (It’s usually overlooked, but logically this is one reason why the Constitution forges an alliance between the Judicial and legislative branches before an impeached President can be put on trial.) Because the Supreme Court has the intrinsic Constitutional authority to make this demand, any refusal to pass judgment on security issues could be ascribed to cowardice rather than ignorance.
This Judicial dereliction leaves individual members of the body politic with no way to signal the damage they are suffering from executive abuses that has any hope of immediate effect. If some physical damage interferes with your ability to feel pain in your right hand, you might leave it on a hot burner until the smell of burning flesh alerts you to the harm being done. So the dereliction of the judiciary allows persons to be injured, without recourse, until the grievance becomes so extensive that it leads to the breakdown of civil peace. (As Scalia puts it, revolt.) Or else it may lead to the loss of right and the extinction of liberty.
America’s founders devised a form of government that allows people rationally to descry the practice of tyranny, in moderate legal proceedings, before matters come to such an extreme. To that end the U.S. Constitution empowers the Judiciary as a separate and equal branch of government. Yet now a Justice, renowned for his commitment to respecting the Framers’ intention, carelessly shrugs off the definitive responsibility of the judicial branch. He elsewhere casually raises the possibility of “revolt” instead of responding prudently to a question of constitutional integrity.
This signals a stunning deficiency in constitutional statesmanship, in the very branch of government that most explicitly requires it. It also portends the conclusive demise of constitutional self-government of, by, and for the American people. Unless, that is, the people themselves intervene, using the means the Constitution provides, to effect a revolution in government without destroying the nation’s civil peace.