President Trump threatened to invoke the Insurrection Act to put down the riots occurring after the death of George Floyd in police custody. The President said, "If a city or a state refuses to take the actions that are necessary to defend the life and property of their residents, then I will deploy the United States military and quickly solve the problem for them." He hasn’t done it yet and the question is: would it be constitutional?
The U.S. Constitution is mostly silent on the question of presidential emergency powers and martial law. Article I, Section 9 allows habeas corpus to be suspended “in Cases of Rebellion or Invasion” when the public safety requires it. We’re not being invaded and the current circumstances fall short of a full-fledged rebellion. Abraham Lincoln suspended the writ of habeas corpus, but there was an actual civil war going on at the time.
That’s it for the text of the Constitution. Now let’s look at federal statutes. The Posse Comitatus Act was passed in 1878 to prevent the use of the U.S. military to enforce domestic policy inside the United States. However, the Act is subject to the provisions of the Insurrection Act of 1807 and its later revisions.
The Insurrection Act, as amended, authorizes the President to use military and National Guard troops within the United States:
The Insurrection Act has been invoked at least 20 times - first in conflicts with Native Americans, then labor conflicts, slave rebellions, to suppress the Ku Klux Klan, to desegregate public schools in Little Rock in 1957, to put down riots in D.C., Chicago, and elsewhere in the late ‘60s, as well as the Los Angeles riots of 1992. George W. Bush wanted to use the Act to intervene after Hurricane Katrina when the governor of Louisiana refused to ask for help, but did not. The Act was changed in 2007 to allow the use of the military without state consent in emergencies, but that was quickly repealed after all 50 governors objected.
Alan Dershowitz wrote about using the Act in the circumstances we are in today:
I’m not so sure the same pattern would hold today. Consider the following scenario: Trump issues a proclamation he will use the Insurrection Act and send troops if rioters don’t disperse. Former President Obama immediately gets on a plane to visit his friend, the federal judge in Hawaii, who issues a nationwide injunction against the use of the Insurrection Act in a case he cooks up with the ACLU. The generals at the Pentagon immediately voice their approval of the Hawaii judge’s action. Where would we be then? Uncharted waters in uncharted territory in an uncharted universe.
Maybe it’s better to let the governors take the lead in this, after all. I must confess, though, that I do like the idea of not allowing federal money to be spent to repair the damage the riots cause in states where the governors decline to ask for the National Guard to be sent in. If they want to stand down, defund the police, abolish their police departments, and try to make friends with bears, the consequences should be on their dime, not mine.
The future of the FISA court is in doubt. Nancy Pelosi and other supporters of the court had hoped for a quick reauthorization of three parts of the FISA surveillance program, but a tweet from President Trump caused Republican support to erode. Also, Democrats defected over privacy concerns. Nancy Pelosi pulled the bill and the House voted to send the matter to a conference committee with the Senate.
Before this vote, President Trump had tweeted:
This broadens the scope of the inquiry beyond the three sections originally at issue, and may put the entire FISA process up for grabs in conference committee.
How much sympathy you have for the FISA court depends on what scenario is running through your head. Is terrorist activity afoot and lives will be lost unless the court acts quickly? Or is the court all too willing to grant warrant applications from the FBI based on unverified information produced by political operatives intent on sabotaging an opposition presidential candidate and incoming administration? Both scenarios are true.
There are two major constitutional issues with the FISA process. The first is the Fourth Amendment and civil liberties concerns arising from the surveillance process. The government seeks and the FISA court routinely grants generalized search warrants without reference to the facts of any specific case. General warrants are usually a big constitutional no-no. Critics say the court has gone off the rails by puffing up the ‘special needs’ exception to the Fourth Amendment. The Supreme Court created the exception, but has thus far confined it to narrow circumstances where a minimal intrusion on privacy is justified by the government's need to combat an overriding public danger. Drunk driving checkpoints provide one example. But now we have a secret court authorizing the collection and sifting of mountains of data whenever the government claims there are threats from espionage, cyberattack, or nuclear proliferation. These critics say the FISA court has created a secret body of law incompatible with Supreme Court jurisprudence in the process.
The second major constitutional issue revolves around Article III. Article III places the judicial power in the Supreme Court and such lesser courts as Congress may establish. However, some critics say the FISA court isn’t a court at all. No other court meets in secret, or holds proceedings without there being a case or controversy at bar. The FISA court approves warrants, but there is only one party - the government. There is no case being tried. Also, there is no right to counsel. The people who are to be surveilled don’t even know the court is meeting. An advocate sometimes speaks on their behalf, but the advocate isn’t even allowed to see the information the government is presenting to the court in support of its warrant application. Unsurprisingly, given the way things are set up, it’s exceedingly rare for the court to deny a warrant application from the government, leading critics to say the court is nothing more than a rubber stamp.
Thus, the FISA court is a Frankenstein creation, neither beast nor fowl. In this, it has something in common with the Consumer Financial Protection Bureau, a Franken-agency - the first independent agency ever headed by a single person whom the President could not fire except for cause. [Constitution Minute, 12/3/17] When I spoke to you about the CFPB in 2017, I mentioned the country runs into problems whenever we stray from the Founders’ designs. Another example is the War Power, which I spoke to you about the same year [Constitution Minute, 11/13/17], where we strayed from the Founders’ design that only Congress would have the power to declare war. The War Powers Resolution of the 1970s authorized Presidents to start military conflicts on their own and the result has been controversy about the constitutionality of presidential military actions ever since.
Some say the FISA court as we know it is dead and only two choices lay ahead - either meaningful reform of the current system, or throwing it all out and starting over from scratch. Let us hope, whatever happens, the end result is more faithful to the Fourth Amendment and the separation of powers than the system we currently have.
Tea Partiers are accustomed to tracing the ideas undergirding the Constitution back to Montesquieu and Locke, but a new book - America on Trial: A Defense of the Founding, by Robert Reilly [reviewed here] - shows that the Founders’ animating ideas go all the way back to antiquity. The book does a deep dive into the fundamental dispute between reason and will, and shows how reason was embodied, and will rejected, in America’s founding. The book goes on to explain why this unending philosophical tussle is still important today. But before we get to the importance of it all, let’s take a quick trip through the history of ideas.
Reilly frames the central question in this philosophical tug-of-war thusly:
The thinking about reason comes down through Aristotle, Cicero, and others until we get to John Locke who is associated with such ideas in America’s founding as universal truth, natural law and rights, popular sovereignty, consent of the governed, the rule of law, political equality, and individual liberty.
The thinking about will was developed by Machiavelli, Hobbes, and others, and forms the basis for political absolutism. It believes human beings do not act out of principle but out of the will to power, the egotistic need to control everybody and everything. One culmination in this line of thinking was Hitler, who was all about the triumph of the will.
Reilly refers to the Lincoln-Douglas debates as illustrating the difference between the two competing philosophies. Lincoln argued slavery is intrinsically evil on principle and could not rightfully be voted in by a majority of the states, as Douglas maintained. Democracy without moral limits is simply the tyranny of the majority, Lincoln argued.
Why is all this important today? First, because the Progressives have been making steady progress and rewriting our constitutional ideas for a hundred years. This is bad because Progressivism, at root, is concerned with the supposedly preordained unfolding of history in accordance with the Progressive vision, not moral principles, and anything goes to get Progressives to their goal. The Progressive’s will to power conjures up rights willy-nilly to abortion, same-sex marriage, and other artifices to gather votes and gain power, to the detriment of religious liberty, freedom of association, freedom of speech, and other benefits of America’s founding. The Progressives have become authoritarian and illiberal. They can only get to where they want to go, now, by trampling on the rights of others. How long will churches that believe in traditional marriage be able to hang on to their tax exemptions? Or, to give another example, transgender speech codes are all about cracking your head until you think right, your moral principles and conclusion based in reason there are only two biological sexes be damned.
Second, there is a split within conservatism with some conservatives now blaming the Constitution and its elevation of individualism for all of modern society’s ills. They believe the old individualistic exploitative order has to be torn down and replaced with “better truths”, whatever that means - no one quite seems to know. Justice Anthony Kennedy is the poster boy for this school of thought, writing in one of his opinions that the “heart of liberty” for every American “is the right to define one’s own concept of existence, of meaning, of the universe, and of the mystery of human life.” Justice Scalia mocked this as Kennedy’s “sweet-mystery-of-life passage” - post-modern gibberish. Reading Reilly’s book will better equip you to resist the illiberal conservative communitarians who have grown up in our midst.
Finally, Reilly posits that only reason, not will, can make individuals capable of the morally demanding requirements of living in freedom. If we are to govern ourselves and flourish, we need a solid grounding in virtue to succeed - something more than ‘if it feels good, do it.’ As the Founders observed, only a moral people is capable of living in freedom. The Constitution they wrote is for a moral people only and, as they told us, is quite inadequate for any other. To put it another way, there is only virtue or there is destruction. Destruction is what you will get if you choose will and ‘if it feels good, do it’ over reason and principle. If we don’t deserve a republic, we won’t have one for very long.
Two weeks ago [Constitution Minute, 4/19/20], I summarized several court challenges to state pandemic emergency orders around the country. There’s been a whole raft of litigation since then. It’s impossible to keep track of all of it but, tonight, we’ll take a closer look at the legal standards at issue in some of the recent challenges.
Yes, the states have broad emergency powers, but the Constitution is not suspended. Emergency powers are not unlimited. Constitutional protections must be observed. The government must have valid reasons to use health emergency powers in the first place - it can’t act arbitrarily; the health measures imposed must be reasonably designed to achieve health objectives; the benefit must outweigh the burdens placed on people; and authorities must avoid harming people in the process. Those are the legal standards; now let’s apply them to some of the cases that have arisen in the last two weeks.
The government can’t act arbitrarily. California Governor Gavin Newsom ordered the beaches closed in Orange County based on some news photos, but he didn’t close any other beaches in the state. The Huntington Beach city council voted to sue arguing, among other things, the Governor acted arbitrarily in singling out one stretch of shoreline in the entire state for closure, but not other beaches. The mayor of Newport Beach additionally argues L.A. County closed its beaches a month ago and “every single Los Angeles County beach community has a higher per capita COVID infection rate than Orange County’s open beach communities.” The Governor’s order singling out Orange County sounds pretty arbitrary to me.
Second, the governmental interest in exercising emergency powers must outweigh the liberty interests at stake. This is basic due process analysis. A judge in Virginia opened one gun range in the state following this analysis. The judge ruled that citizens’ Second Amendment rights outweigh the state’s interest in protecting health on the facts presented. In Michigan, the Governor settled a case with a legal foundation by trimming back her emergency orders. The foundation vindicated the rights of Michigan residents to travel to their summer homes, reopen their landscaping businesses, and use their boats for fishing, among other things. The foundation had argued the Governor’s orders had trampled on several fundamental rights for no good reason.
Third, the health measures must be reasonably calculated to achieve a health objective. It’s hard to see the health objective in ordering people not to attend drive-in church services where they don’t get out of their cars. A town in Mississippi lifted its ban on drive-in church services after it got sued. The U.S. Justice Department intervened in the case, saying the town could not single out churches when allowing other drive-in establishments, like drive-in restaurants, to stay open. In Kansas, a federal court blocked the state from limiting attendance at church services to 10 people. Congregations must still observe social distancing rules under the court’s decision, but those rules cannot be applied more strictly inside churches than elsewhere, the court said.
In New Mexico, however, a federal court ruled the opposite way, upholding the state’s ban on gatherings of more than five people in places of worship. The court rejected challenges based on the First Amendment rights of assembly and free exercise of religion. The judge said the social distancing ordered by the state was not good enough because death rates were still going up despite social distancing. That bears repeating: the state’s social distancing order was not good enough for this judge. Talk about legislating from the bench, wow! Besides, churches have alternatives - drive-in services and broadcasting over TV and the Internet, the judge ruled.
To sum up, states have emergency powers, but the Constitution is still in effect, and the question in all these cases is, in one way or another, whether government has overreached. Law is the adjustment of competing values and interests and all of that strikes different judges in different ways, as the COVID cases show. But, at some point, even the most hard-core authoritarians among us will have to admit that the burdens and harms of continued lockdowns outweigh the health benefits to be gained. Like the scales of justice show, it’s a matter of balance.
Recently, President Trump threatened to adjourn Congress in order to make recess appointments to fill vacant posts in his administration, citing constitutional chapter and verse as authority to do so. While there have been plenty of recess appointments in our history, no President has ever actually adjourned Congress before to make them. Not surprisingly, legal scholars disagree about the constitutionality of the President’s threatened course of action. Two constitutional provisions and a Supreme Court case are at issue.
First, Article II, Section 3 gives the President the power to adjourn Congress for as long as the President wants if the two Houses of Congress disagree “with respect to the Time of Adjournment”. So if the Senate adjourns and the House votes to disagree, or fails to vote at all, the President can adjourn Congress. That may sound open and shut, but it’s not.
We have to look at Article I, Section 5 which effectively says either chamber can adjourn for up to three days without consent of the other during a session of Congress. Any longer than three days, during a session of Congress, and the other chamber must consent.
So what’s to prevent Senate Majority Leader Mitch McConnell from adjourning the Senate for eight days, Speaker of the House Nancy Pelosi refusing to consent, and President Trump adjourning both houses of Congress for eight days under Article II, Section 3 in order to fill the roughly 250 vacancies in his administration for which the Senate has not given its advice and consent?
The answer is: The Supreme Court, that’s what. In a 2014 case [NLRB v. Noel Canning], the Supreme Court started by saying, “The Recess Appointments Clause empowers the President to fill any existing vacancy during any recess—intra-session or inter-session—of sufficient length.” What is “sufficient length”? Therein lies the rub. A three-day recess was at issue in the case, and the Court could find no “single example of a recess appointment made during an intra-session recess that was shorter than 10 days.” Absent “unusual circumstances” like a national catastrophe, a three-day intra-session recess is too short for a President to invoke the Recess Appointments Clause, the Court ruled. Justice Scalia wrote a separate opinion, unsuccessfully arguing the President’s need to fill a particular slot can be just as urgent as a national catastrophe.
So, once again, we see a Supreme Court that has gone beyond the text of the Constitution, filled in some blank spaces with whatever formula struck its fancy that day, and achieved a result that is not required by the plain language of our founding documents. The formula that day was historical practice - no recess appointment has ever been made in our history during an intra-session recess shorter than 10 days. But the Court doesn’t always like history. A lack of history didn’t prevent the Court from making up fundamental rights to abortion and gay marriage, did it? It’s called results-oriented jurisprudence - pick the result you want, then pick the formula that will get you there. History one day, public opinion polls the next.
Hate to break it to you, folks, but there’s entropy in the law, and the result is that duly elected officials have their hands tied by the courts more than they should, and your vote doesn’t mean as much as it should, because unelected people in black robes like to make stuff up and overstep their role.
Two months ago [Constitution Minute - Feb. 23, 2020], I told you about the emergency powers states have to deal with pandemics. Subsequently, I went on the radio and said that, if Americans really feel governments have trampled on their rights, they should sue in court. Tonight, we’ll take a quick trip through some of the court cases where Americans fighting for their rights have done exactly that. Some have been successful and some have not.
But, first, a refresher. States have broad powers in emergencies to protect the health, safety, and general welfare of their inhabitants. However, those powers are not unlimited. Constitutional protections must be observed. The government must have valid reasons to use health emergency powers in the first place - it can’t act arbitrarily; the health measures imposed must be reasonably designed to achieve health objectives; the benefit must outweigh the burdens placed on people; and authorities must avoid harming people in the process.
Several court challenges went down in flames in Pennsylvania. The state’s Supreme Court rejected eminent domain, due process, equal protection, and First Amendment free speech and rights of assembly challenges to business closures and other emergency measures. The court said the closures are an appropriate use of emergency powers and are only temporary. Businesses get a post-closure hearing to challenge designations as non-essential and that is enough for due process. Political campaigns have other ways to get the word out, even if their offices must stay closed during the pandemic.
Texas lost its bid to completely close abortion clinics as non-essential for the duration. A federal appeals court ruled the clinics must be allowed to stay open to dispense abortion pills and provide abortions to women who would otherwise be too far along for abortions when the state’s emergency order expires. Sounds like the court decided to cut this baby in half - literally.
Church-goers lost their challenge against the state’s order limiting the size of church gatherings on Easter Sunday to ten people in Kansas.
A number of other court cases have been filed or threatened, but I haven’t seen rulings yet. A Wisconsin teen sued a local sheriff for denying her free speech rights by threatening to arrest her for disorderly conduct for an Instagram post where she claimed she had beaten COVID-19. Her doctors told her it was likely she had the virus and she had tested negative because she missed the testing window.
Michigan residents filed suit against the stay-at-home order issued by Governor Gretchen Whitmer, whom Trump calls ‘that woman from Michigan’. The Governor was also sued for criminalizing the free speech activity of peaceful, pro-life protestors. A legal group called on the Governor to lift her ban on homeschooling. It looks like faulty drafting, but the executive order bans all in-person instruction of all children outside of public schools, which are closed. Parents have a fundamental constitutional right to raise and educate their children, the group said.
Citizens in Massachusetts are suing over that state’s designation of gun shops as non-essential. A gun rights group in Virginia sued over Governor Infanticide’s closing of indoor gun ranges as non-essential. A constitutional law professor at the University of Virginia doubts this challenge will succeed. “Closing gun ranges doesn’t violate anyone’s right to own a weapon,” he said. “It’s a reasonable regulation in the space of a major public health crisis.” VCDL, the gun rights group, counters that the gun ranges allow people to sharpen their skills, and observe appropriate social distancing because there are barriers between lanes.
Which brings us to Mike Huckabee, who sued in federal court in Florida against a county social distancing order that closed his private beach. He argues this is a taking of his property in violation of the 5th Amendment and points out there is less chance of transmitting coronavirus on a private beach than there is going to the grocery store. The measure, as applied to private beaches, doesn’t appear calculated to achieve a health objective, a legal standard I mentioned at the outset.
The sheriffs have been interesting to watch in all of this. Four sheriffs in Michigan said they would not strictly enforce the stay-at-home order. A sheriff refused to enforce orders fining COVID carriers who enter Maine from out of state. “This is not Nazi Germany or Soviet Russia where you are asked for your papers!,” he wrote. Sheriffs in Los Angeles and North Carolina allowed gun stores to reopen after being sued.
I’ll close with my favorite ruling, this one out of Kentucky where a federal judge ruled the mayor of Louisville could not ban Easter drive-in church services. “On Holy Thursday, an American mayor criminalized the communal celebration of Easter,” the judge wrote. “That sentence is one that this Court never expected to see outside the pages of a dystopian novel, or perhaps the pages of The Onion.” The mayor had argued that drive-in church services weren’t “practical or safe” for the community. However, the judge noted that drive-thru restaurants and liquor stores were still allowed to operate. Senator Rand Paul tweeted, “Thank God for a judge who understands the First Amendment prevents the government from prohibiting the free exercise [sic] of religion.”
There’s nothing quite like the pretzel logic of the Left. Take the kernel of a good idea - the equal protection clause of the 14th Amendment - and twist it into something completely unrecognizable and monstrous. Thus we arrive at the Labor Department’s Office of Federal Contract Compliance Programs (OFCCP) which often takes enforcement actions against the same employer for discriminating against both men and women, or against and in favor of Asians. Wow, that’s some pretzel.
Not only that, OFCCP is judge, jury, and executioner in flagrant violation of separation of powers principles laid down by our Founders in the U.S. Constitution. OFCCP investigates, prosecutes, and judges cases entirely in-house.
Equal protection has gone off the rails, thanks to disparate impact theory, a numbers game that purports to find discrimination purely on the basis of statistics, that is, unequal outcomes across various demographic groups. No actual evidence of discriminatory intent is required. Intent is simply proclaimed if men are paid more than women regardless of other factors, or if Asians are hired in greater numbers than their percentage of the population.
OFCCP brought a complaint against Oracle alleging pay discrimination against female, black and Asian employees, then demanded 85 million datasets from Oracle in discovery in the case. OFCCP is notorious for other abusive practices, such as refusing to show the contractors it sues its statistical findings or even its methodology. OFCCP’s analysis is simplistic, for example, treating all employees with the job title ‘software engineer’ alike even though the work of a software engineer assigned to databases is doing very different work from one who is developing artificial intelligence. OFCCP’s simple-minded theory also disregards education, experience, personal job choices, the number of hours worked, and flexible work schedules in its quest to level the workplace and make everyone equal.
Oracle has counter-claimed, arguing the separation of powers issue, among other things. There is also a Due Process issue with having a self-interested tribunal that is not impartial or neutral. It’s a constitutional problem if you make the decision or set the punishment in a case your colleagues brought in the first place.
The complaint against Oracle was brought two days before President Trump was inaugurated, but continues under his administration. The Trump administration has talked about shutting down OFCCP and transferring its functions to the EEOC. The administration also proposed, over a year ago, to uproot disparate impact theory from all federal agency adjudication, but the proposal doesn’t seem to have gone anywhere.
But it should. As I wrote in a Constitution Minute in March 2019, disparate impact theory is a concoction of left-wing bureaucrats that “turns the presumption of innocence on its head and is manifestly unjust. Not every statistical difference is about race. The Constitution is supposed to be about equal protection, not back-door redistribution or guaranteeing equal outcomes.”
The whole nation, it seems, is homeschooling to one degree or another during the pandemic. Some commentators hope this will cause people to have a new appreciation for the virtues of educating their own children. But the Left, true to form, is still trying its best to torpedo homeschooling and corral every child in America into government indoctrination centers, AKA the public schools.
A conference scheduled for June at Harvard will discuss how best to regulate what organizers call the “controversial practice” of homeschooling. One of the organizers has called for a "presumptive ban" on homeschooling, while another claims there is no such thing as "parental rights". Thus, the conference will feature the authoritarian Left in full cry.
As Tea Partiers know, the word ‘education’ does not appear in the U.S. Constitution. Supreme Court cases go part of the way towards establishing a fundamental right to homeschool under the Due Process clause, but the Supreme Court has never squarely ruled on the issue. Let’s leave aside the Amish case from 1972 [Wisconsin v. Yoder], upholding their right to homeschool based on First Amendment free exercise of religion. That was a unique set of circumstances, and later cases have denied free exercise claims by other religious groups.
Due Process analysis starts with a 1923 case [Meyer v. Nebraska] knocking down a state law prohibiting, for example, teaching children in German in a parochial school. The second case, in 1925, discussed a compulsory public school attendance law. [Pierce v. Society of Sisters of the Holy Names of Jesus and Mary]. The case is interesting because it contains some very strong language affirming parental rights: “The child is not the mere creature of the state; those who nurture him and direct his destiny have the right, coupled with the high duty, to recognize and prepare him for additional obligations.” It’s great the Court said children are not state property, but the case, like the one before it, involved parochial schools, not homeschooling. Since then, many court rulings have supported the right of parents to provide home education.
But here’s the problem: homeschooling is theoretically only one Supreme Court Justice away from being abolished entirely. In the event of a 4-4 tie, a single swing Justice like an Anthony Kennedy could end homeschooling in this country forever. It would be a bad decision. It would fly in the face of the accumulated weight of judicial opinion in favor of homeschooling as a fundamental right, but we have seen the Supreme Court make bad decisions before. How about rounding up every American of Japanese descent during World War II and sticking them in camps without any real proof they threatened national security. Or how about the time we Tea Partiers were on the steps of the Supreme Court listening to Chief Justice John Roberts upholding Obamacare as a tax right after he had just finished saying it was not a tax. The Supreme Court can turn night into day with the stroke of a single Justice’s pen.
Obergefell, the same-sex marriage case, showed us, if we did not already know, that the Supreme Court sometimes responds to shifts in public opinion. It has no trouble engaging in social engineering and declaring what is good public policy for the little people, even if large swathes of the population are not on board. So what happens to homeschooling if five unelected Supreme Court Justices wake up one day and decide the country would be better off if every child were herded into government indoctrination centers and taught to become good little socialists?
Which brings me to the point: if you don’t want the Supreme Court to do away with homeschooling one day, then roll up your sleeves and get to work fortifying public opinion in favor of homeschooling and preventing the authoritarian Left from getting its grubby little mitts on the minds of every schoolchild in America.
One hundred police departments use the ShotSpotter sensor system to triangulate the location of gunfire and send patrol cars to the scene. In a case of first impression out of Illinois, the 7th Circuit held that the use of ShotSpotter can be permissible under the Fourth Amendment to the U.S. Constitution. [United States v. Terrill A. Rickmon, Sr. (7th Circuit - March 11, 2020)]
The court started its analysis by referring to well-established Terry stops which have long been held constitutional if based on “reasonable suspicion”. The “reasonable suspicion” test, which is less stringent than the probable cause needed to support a warrant, is met when articulable facts suggest criminal activity, based on the totality of circumstances known to the officer at the time of the stop.
In the Illinois case, ShotSpotter alerted a system representative in California, a live person who determined the sound to be gunshots. The information was relayed back through the system to a patrol officer who stopped a car leaving the area where the gunfire was heard. With the driver’s consent, the officer searched the vehicle and found a gun underneath the passenger seat where the defendant was sitting. The defendant had a criminal history and was convicted of possession of a firearm by a felon.
The court wrote that the ShotSpotter alert was not enough by itself to justify stopping a vehicle, but went on to find the stop was reasonable based on the totality of the circumstances. The court analogized the ShotSpotter alert to an anonymous tip, which must be corroborated to pass constitutional muster. The corroboration in this case consisted of independent reports of cars and an individual on foot leaving the scene. Another circumstance was the dangerousness of the crime - here, gunfire, making this an emergency situation. Also, it was 4:45 a.m. and the officer found no other traffic on the street. This was the only car the officer saw coming from the scene. Finally, this officer had previously been called to several shootings in the same area of the city. Add it all up and the totality of the circumstances suggests the people in this vehicle were involved in criminal activity.
There was a dissent that found all of this rather thin. The officer had no information about this particular car and admitted he would have stopped any car leaving the scene. Thus, in the dissent’s view, there was no individualized reason to support the stop. “If the Fourth Amendment stands for anything, it stands for the proposition that the police cannot seize anyone without adequate, individualized reason to do so,” the dissent wrote.
Factual circumstances aside, the point for tonight’s purposes is that the Fourth Amendment has been applied to another new technology and the use of that technology has been upheld by a federal appeals court. A marker has been laid down and future cases will probably turn on fine shadings of fact. It would be an uphill climb at this point to get ShotSpotter disqualified as unconstitutional in all cases.
The Florida Georgia Line is not just a country music act, it’s an illustration of the constitutional right to travel. People traveling between states don’t have to stop and show a passport every time they get to a state line.
The right to interstate travel traces back to the Articles of Confederation: “the people of each state shall have free ingress and regress to and from any other state....” [Article IV]. You won’t find the right to travel in the text of the U.S. Constitution, but it’s now considered a fundamental right, one of the privileges and immunities of U.S. citizenship under the 14th Amendment. Courts have deemed the right to interstate travel a fundamental right since at least 1823, but it wasn’t until 1999 that the Supreme Court finally located the right in the privileges or immunities clause. [Saenz v. Roe]
Because the right to interstate travel is a fundamental right, it is given the highest level of constitutional protection. Laws that impinge on the right must pass strict scrutiny, that is, they must serve a compelling government interest, be narrowly drawn, and use the least restrictive means to achieve their purpose. All sorts of laws have been knocked down as offensive to the right to interstate travel - harbor taxes, a ban on bringing indigent persons into a state, restrictions on the use of highways and public accommodations on the basis of race, and limitations on state welfare benefits and voting rights for new residents. But the right to interstate travel, like every other right, is not absolute, and the Supreme Court has upheld simple state residency requirements that don’t have time periods attached, even if they might arguably discourage interstate travel - some voting restrictions, divorces, public employment, and free public education being some examples where simple residency requirements have been upheld. [Chemerinsky, Constitutional Law - Principles and Policies, 4th Ed., pp. 878-889]
What about the right to travel in our current circumstances of concern over coronavirus? President Trump said this past week he is considering travel restrictions to California and Washington, two states among the hardest hit so far. The analysis is similar to assessing whether a quarantine order is constitutional, as I reviewed with you three weeks ago. Courts will generally uphold quarantines and travel restrictions for public health reasons as long as those reasons are not arbitrary or oppressive. [People ex. rel. Barmore v. Robertson, 134 N.E. 815, 817 (citations omitted) (Ill.1922)] In 1965, the Supreme Court said the right to travel “does not mean that areas ravaged by flood, fire or pestilence cannot be quarantined when it can be demonstrated that unlimited travel to the area would directly and materially interfere with the safety and welfare of the area.” [Zemel v. Rusk, 381 U.S. 1, 15 (1965)] The CDC maintains Do Not Board and Lookout lists for sick passengers and those lists probably pass constitutional muster when viewed through the public health lens.
The right to foreign travel is on a different constitutional footing and is given less protection. Foreign travel is not a fundamental right. Therefore, restrictions on foreign travel do not have to meet strict scrutiny; they only have to pass the rational basis test. Very few governmental actions ever fail the rational basis test. So Trump’s travel ban on foreign nationals from European illness hot spots and the medical screening of Americans returning from those locations would more than likely be upheld in court as showing some semblance of rationality, screams from civil libertarians notwithstanding.
The Web Team
Our web team is dedicated to bringing you Constitutional news you can use.