Calling All Counsel -- Is The Bill of Rights "Being Eroded Away"?

I have a fondness for exploring the nuances of constitutional law. This horrendous addiction has led me to read a number of books lately on the Rehnquist Court, largely written by self-confessed liberals, particularly Nat Hentoff.

The general tenor of their views suggests that Justices Rehnquist and Scalia are leading a faction of justices who are seriously attempting to restrict the understanding of the rights of Americans as defined by the court in the 1937-1986 time frame. Justices Ginsberg and Souter appear to be stumbling blocks to this, as are Justice Kennedy’s alleged desire to take a stance with broad public support and Justice O’Connor’s respect for stare decisis. But the general view is that what we have come over the last 50 years to understand as the constitutional rights of Americans is under severe attack.

I do not propose to argue for or against that view here, as yet. What I’m particularly interested in doing is in seeing what our resident jurisconsults, such as Jodi, DSYoung, Sua Sponte and a few others, think of this claim. And to what extent they see it as valid.

I don’t know whose language “what we have come over the last 50 years to understand as the constitutional rights of Americans” is, but it seems to include the entire period of the last 50 years. So that any reversal of a “constitutional rights” decision made at some point in the last 50 years - like, say, 5 years ago - would be included. Which makes it mean a lot less than it sounds like at first glance.

In any event, did they give any specific examples?

I think Polycarp was speaking about the 50 years from 1937 to 1986 specifically, not the past 50 years going back from today, even though he said that. The point was about the erosion of liberties perpetrated by the Rhenquist court, I believe. I could be wrong, though.

I’d like some specifics, too. I can definitely see erosion of Fourth Amendment rights in recent years, but I’m curious about others.

There has arguably been a large broadening of First Amendment rights during the Rehnquist Court, particularly freedom of speech. Freedom of religion jurisprudence is essentially a zero-sum game, with most cases balancing between the establishment clause and the freedom of religion clause.

There has also been a massive expansion of rights under the Takings Clause.
Where the Rehnquist Court has made the most massive changes has been in the realm of federalism. How that impacts on rights, YMMV.
Definitely, IMO, the Rehnquist court’s jurisprudence on the 4th Amendment has been atrocious.


[sub]all from the top of my head. No research went into these thoughts.[/sub]

I have a lot of respect for Nat Hentoff. He’s a liberal who thinks for himself and maintains consistency in his views, even if it means agreeing with conservatives on some issues. I’d be interested in more details of what Hentoff wrote.

Two separate questions;

  1. Are Constitutional rights being overturned by Justices Scalia and Rehnquist?

  2. Are rights of Americans as defined by the court in the 1937-1986 time frame being overturned by R&S?

I would answer “No” to #1 and, “Yes, thank goodness!” to #2. IMHO S&R (and Clarence Thomas) are seeking to return to the people a few of the Constitutional rights that were taken from us in the 1937 - 1986 period.

My (grossly overgeneralized) understanding of the conservative position is there are some decisions that a more liberal court put in place that Rhenquist and Scalia (and, to a lesser extent, Thomas) would love to see abolished. But they don’t see this in terms of restricting our rights (as enjoyed now), but in terms of taking our rights back to what they (correctly) were before the (erroneous) decision on [whatever topic]. So its a matter of perspective, both politically and in time. If a particular right is construed in Way A, and then along comes a Court and construes it in Way B, if a later Court attempts to change the construction back to Way A, is that later Court “eroding” our rights, or correcting a judicial misstep? The problem, of course, is that whether a decision was a judicial misstep or not depends almosts entirely on who you ask.

The truth is that the concept of “rights,” like every other socio-political concept, is a fluid one. Rights are subject to interpretation and reinterpretation over time – not in their broadest brush-strokes, but in the details of their application. Whether they are being “strengthened” or “eroded” depends on circumstances and upon opinion. For example, let’s say that the Court decides to extend the Americans with Disabilities Act to say that every dwelling must be handicapped-accessible. Would they be “expanding” the personal rights of the handicapped, or “eroding” the property rights of land owners? Depends on who you ask.

I can give you my opinion if you can give me specifics of a case or right you would like to discuss.

Jodi - isn’t an easier way of determining whether rights have been eroded is to ask “prior to decision X, could a person could do Y/the government could not do Y to its citizens, and how did decision X change that?”

As a hypothetical, if Miranda went too far and the Rehnquist Court rightly pulled it back in some way, it doesn’t change the fact that prior to the Rehnquist Court’s decision, suspects had a right to be apprised of their consitutional protections, and after the Rehnquist Court decision suspects’ right to be apprised of their protections was lessened.



Yes, except that it begs the question of whether you have expanded a “right” beyond what it consitutionally should be and you feel it ought to be scaled back. For example, what is the Court said “The right to free speech should include all speech, without time/place/manner restrictions.” If the Court then reversed itself later, are you “eroding” the right to free speech, or merely “correcting” an “erroneous” ruling to pull the right back to where it was?

But what if that “right” was expanded to say no procedure could be done, no question asked, no matter how small, unless counsel was present? If you couldn’t even arrest a person without counsel present – no exigent circumstances? (This is obviously an absurd example, but still.) If the Court later said, “Wadaminnit, that was nuts,” have they “eroded” the defendant’s rights? Or have they correctly determined that the “right” was in the first place indefensibly extended to a point where it is not constitutionally supportable? In other words, what constitutes a “right” is a moving line, dependent upon judicial determination. What may seem to one side as “eroding” the line may seem to the other as putting it back where it ought to have been in the first place.

Jodi - yer dead on. Consider my post withdrawn.


Thanks, Jodi and Sua. I could not, offhand, think of particular examples other than (1) the McSomebody-or-other death penalty case in which the police/DA team withheld a detailed 15-page transcription of a statement tending to indicate that the chief prosecution witness was a “police plant” from the defense, and the court refusing habeas because, not knowing about that statement, defense had not raised it earlier in the proceedings. (Sixth Amendment, IIRC); and (2) a rehash of the Allegheny County, PA courthouse creche-menorah religious displays case. Neither of which particularly seemed to make the case very strongly.

I like the definition Jodi came up with as clarification of what they’re doing. My further questions would be: Do you (professionally) feel that Scalia’s jurisprudence is “well written” (in the sense of making clear the doctrines he is defining in his opinions), and What are your personal views as professionals on the direction he and the Chief Justice are taking vis-a-vis rights cases generally?

This, undoubtedly, is what the Rehnquist court sees itself as doing. And it is certainly also true that we cannot assert as a matter of fact or as a matter of law that the Rehnquist court has “incorrectly” interpreted the bill of rights or “wrongly” limited personal freedom.

However, to take a simple (perhaps simplistic) approach, can we honestly say that in the jurisprudence of Justices Scalia and Thomas there has ever been an instance where they supported a broadening of personal freedom with the exception of the freedom to own property? I cannot claim to have read every Scalia opinion, but my overall impression from ConLaw (and, admittedly, I am 5 years out of law school and no constitutional scholar) is that Scalia (supported by Thomas) generally relies whenever he can, on a restrictive interpretation of any portion of the US Constitution dealing with anything but property rights and Federalism.

I realize that this is an exceedingly broad statement backed up by no citations whatsoever, but I set it forth nontheless.

This very summer Scalia wrote the decision that requires police agencies to obtain a warrant before they use a remote sensing device (in the case, a thermal imager) to look inside a person’s home.

Given the advance in technology, it is a very important (and very good) 4th Amendment decision, IMO.


IANAL, obviously, but I don’t see the Bill of Rights being eroded too much by the current Supreme Court. I don’t think it’s being expanded much, either. What we’ve got is a stare decisis court. The recent case where they reviewed Miranda appears to be a particularly apt example of that; as I understand it, the Court basically said, “Well, Miranda probably isn’t very good law, but we’re letting it stand anyway because it’s become such an integral part of the nation’s legal framework that it’s too late to go back now.”

I was well pleased by Kennedy’s opinion back in the '80s striking down anti-flag-burning laws, but I don’t consider that an “expansion” of the Bill of Rights, just a good First Amendment decision that was well in line with the existing precedent. Stare decisis was followed.

Much to my disappointment, the Court has also declined to expand the protections of the Second Amendment beyond the extremely restrictive bounds that previous courts have set. No revolution there.

Even the Supreme Court decision most hated by conservatives, Roe v. Wade, has come out of the Rehnquist era with only minor wear and tear. Abortions continue apace, in the “penumbra” of the Fifth and Ninth Amendments. Stare decisis dominates again, much to Scalia’s chagrin.

In sum, change of any sort, erosive or expansive, is conspicuously absent from most of the Court’s rulings on the Bill of Rights.

I was unaware of that one. It does, I will readily admit, sound like a sensible and important decision. Hey, I never said the guy was dumb…

IANAL, however here is a recent shining example on how our rights are being stripped away, one by one. What this artice does not get into are the legalities on whom can or cannot be eavesdropped on.

If Carnivore was limited to known terrorists or politicians things would be different, in my opinion, but it is not. At any time and for any reason what you say (in email or over the phone) can and will be used against you in a court of law, without resonable doubt.

If “They” are reading our emails’ why not our snail mail too? And for that matter what is to stop them from complete and random searches* of all emails’ sent in the past and those that have yet to be written?
Amendment IV
The right of the people to be secure in their persons, houses, papers, and effects,
* against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause,** supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.


Though I try to keep up with con law developments, I am not enough of a scholar of the U.S. Supreme Court, much less Scalia particularly, to be able to comment with any intelligence on the clarity of his writing. But generally I do not seen the pernicious “erosion” of rights that I know more liberal thinkers do. I think that the conservative wing of the Court is just that – conservative – and their decisions reflect that (as, practically speaking, how could they not?).

[Mini-rant]The only time I take issue is when people (on both sides of the political spectrum) want to assign nefarious motives or theorize conspiracies in order to explain judicial decisions they disagree with. Liberal people make liberal judges who issue liberal decisions. Conservative people make conservative judges who issue conservative decisions. In neither case, absent a shred of evidence, is it appropriate to assumee those decisions are results-oriented or biased. I realize no one in THIS thread has said any such thing, but it is an accusation that comes up with tiresome frequency around here.[/Mini-rant]

ELVIS, I was interested to see you frame your question in terms of broadening personal rights (not using the less-exact “freedoms”) “except for property.” Economic and property rights are obviously dear to any good conservative, and so it seems to me unsurprising that conservative judges would seek to protect them. But property rights ARE still rights, so I think it is to some small extent artificial to talk about their failure to talk about personal freedoms and intentionally except out one. My understading, from having read up on this very topic, is that Scalia feels the same way. He does not subscribe to the dichotomy of personal and property rights – they are both (all) rights deserving of equal deference and enforcement. Hid decisions regarding takings reflect as vociferous a defense of rights as any liberal might want – but because there he’s defending property rights, it’s like somehow it doesn’t count.


Actually it’s not, for a couple of reasons. First, you must have a right before it may be “stripped away;” the parameters of the individual’s right to privacy in wireless e-mails is by no means clear. Second, this is not a judicial decision of a constitutional issue – it is a potential constitutional issue but since it has not yet been determined one way or the other (so far as I know), it is impossible to say that any right (if in fact you have one) has been “stripped away.”

Citing the Constitution does not make the argument for you. The Fourth Amendment prohibits unreasonable searches and seizures – reasonable ones (like those supported by a warrant) have always been okay. So the probable questions would be: (1) whether or not picking wireless transmissions out of the air constitutes a search; and (2) whether that search is reasonable or unreasonable in light of (3) the individual’s reasonable expectation of privacy.

It’s a very interesting question, but you can’t start the discussion by stating conclusions that haven’t yet been realized.

True, and I can see how my post seems to reflect that devaluing of property rights. Actually, though, I didn’t mean to imply that property rights are somehow less important. In fact, I am a vigorous and vociferous believer in economic as well as political freedom, and I have little patience for the purportedly “liberal” view that the preservation of the first amendment is somehow more important than, say, preventing takings. I don’t think Scalia views political rights or “civil” rights as unimportant, but I do think that given a choice, he would preserve economic rights at the expense of political ones, particularly in the civil rights area.

The history of legal wiretapping in the United States started in 1968, when Congress passed the Omnibus Crime Control and Safe Streets Act of 1969 (18 U.S.C. Sec. 2518(9)). Title III of the act contained comprehensive federal legislation regarding electronic surveillance. It established strict procedures conducting "interception of a wire, oral, or electronic communication.

In 1986, the earlier wire-tapping law was updated to included electronic communications. ECPA protects electronic communications from point-to-point, that is while it travels through “cyberspace.”

Unfortunately, ten years later, with concerns about the difficulty of performing legal wiretaps on digital circuits the FBI pushed for something called the Digital Telephony Act, which was passed by Congress. This act requires telecommunications carriers to design their systems to be tappable for the convenience of law enforcement.

Now if I understand this correctly the FBI is limited to jurisdiction only within the borders of the United Stated of America. The FBI now has the technical ability required to wiretap certain technologies, such as analog voice communications carried over public networks’ copper wire. However, since 1986, the FBI has become increasingly aware of the potential loss of wiretapping capability due to the rapid deployment of new technologies, such as cellular and integrated voice and data services, and the emergence of new technologies such as Personal Communication Services, satellites, and Personal Communication Numbers.
There are six current or imminent telecommunications technologies that the FBI needs to be able to wiretap. These are (1) analog and digital using copper wire transport, (2) analog and digital using fiber optic transport, (3) Integrated Services Digital Network (ISDN), (4) Private Branch Exchange (PBX), (5) broadband, and (6) cellular. There are also three future technologies for which wiretapping capabilities need to be addressed: (1) satellite switches, (2) Personal Communication Services (PCS), and (3) Personal Communication Number (PCN).

Finding the balance between the interests of law enforcement and the costs associated with the bill – among them,invasion of privacy, potential impediment of new technologies, and huge sums of money – amounts to performing a cost-benefit analysis. We, the ones affected by the bill, need to decide what the correct balance is: whether our privacy and our money are more important to us than the FBI’s ability to conduct electronic surveillance.

Independent of what the correct balance is, the Digital Telephony Bill sets a precedent by establishing a particular distribution of costs and benefits. The bill itself is just another stage in the on-going privacy debate. Today, this debate is centered around the bill; tomorrow, it will be the Clipper Chip; after that, the focus will shift to the laws of Cyberspace. At every stage, we need to be careful as a society to establish precedents that will lead us toward the correct balance.

Regardless of the legalities surrounding the rights and laws of those who will tap your computer, according to the Carnivore FAQ “According to the Federal Rules of Evidence, business records (including computer records) are considered “hearsay” (and not admissible in court) because there is no firsthand proof that they are accurate, reliable, or trustworthy.”

BuddhaDog, that’s interesting, but it is distinctly NOT the issue raised in the OP. The OP asks about the Bills of Rights jurisprudence of the Rehnquist Court and, as Jodi already pointed out, the question of the constitutionality of Carnivore has not been put to the Rehnquist Court yet.

If you want to start a new thread to discuss the potential threat to personal liberty from Carnivore, go ahead, but please don’t hijack this thread.