Brett Kavanaugh and the Bill of Rights: Some Concerns
President Donald Trump’s nomination of D.C. Circuit Appellate judge, Brett Kavanaugh, to the Supreme Court, has elicited (at least among civil libertarians) a now-familiar and predictable conversation on the issue of civil liberties and national security.
In a 2015 concurring opinion in Obama v. Klayman, which challenged the constitutionality of the National Security Agency’s collection of Americans’ phone metadata records, Kavanaugh wrote, “In my view, the critical national security need outweighs the impact on privacy occasioned by this program.”
Kavanaugh’s opinion is certainly indicative of a concerning lack of judicial restraint.
It is also, in a broader sense, demonstrative of the misguided premise underlying the public debate on liberty versus security; namely the notion that our constitutional liberties must be sacrificed and that the only question is, to what extent.
It is a widespread belief among individuals of all political stripes that it is acceptable to compromise the Bill of Rights since the founding fathers could not have anticipated modern-day threats to our national security.
Such an argument, however, is disingenuous, as history shows that the founders were in fact quite conscious of national security concerns when they drafted the Constitution.
For instance, Article I, Section 8, Clause 11 – the war powers clause – originally stated that “Congress shall have the power to make war.” This verbiage was ultimately changed to “Congress shall have the power to declare war,” a subtle distinction that granted the President the authority to use military force to “repel against sudden attacks” absent congressional authorization.
The Bill of Rights, however, purposefully includes no exemptions for national security.
Politicians, pundits, and the American public are asking the wrong question when they ask, “How do we strike the proper balance between individual liberty and national security?”
This question was unequivocally decided on December 15, 1791 when the Bill of Rights was adopted by the states and incorporated into the Constitution.
The founding fathers decided that, yes, the government can search a suspected terrorist’s home, but they must first present evidence of wrongdoing to a judge.
Yes, the government can seize a drug dealer’s ill-obtained property, but that drug dealer must first be given due process.
Sure, the government can detain an accused criminal, but the accused must be granted a trial with minimal delay.
Rather than misguidedly asking the settled question of how we should balance liberty with security, we ought to be asking, “Do our current laws adhere to the balance between liberty and security stipulated in the Bill of Rights?” Far too often, the answer to this question is an emphatic “no.”
Section 702 of FISA and section 215 of the paradoxically titled USA PATRIOT Act, which allow the government to collect Americans’ communications and records without judicial approval, fail to meet the Fourth Amendment’s standard for violating a person’s privacy.
Civil forfeiture, which permits law enforcement to confiscate the assets of individuals not convicted of a crime, blatantly disregards the Fifth Amendment’s due process requirement.
Sections 1021 and 1022 of the 2012 National Defense Authorization Act, which authorize indefinite detention of American citizens, violate both the right to due process and the Sixth Amendment’s requirement of a speedy trial.
It is not difficult to see the danger in carving out a national security exemption to the Bill of Rights.
In Federalist 51, James Madison wrote, “If angels were to govern men, neither external nor internal controls on government would be necessary.”
However, men and women – including those serving in law enforcement and the intelligence community – are not angels. They, like all human beings, have biases and it is not inconceivable that some of them have biases that rise to the level of bigotry.
If an American is wrongly targeted by a biased individual in a position of official power, the Bill of Rights is his or her last bulwark of protection, of individual liberty.
Imagine a high-level intelligence official targeting Americans for surveillance based on their political views, disguised as national security concerns.
In such a situation, the Fourth Amendment enables a judge to say, “Hold up! There’s no evidence that these people did anything wrong!” and deny the government’s requests to wiretap their phones and collect their e-mails.
Likewise, imagine a bigoted president accusing Americans of terrorism based on their race or religion and ordering their detention, again under the auspices of national security. The Fifth and Sixth Amendments ensure that they could not be detained without charges or, if charged, could not remain detained indefinitely without a trial.
In both of these hypothetical, yet wholly conceivable, scenarios, the Bill of Rights safeguards the liberty of the unfairly targeted and the wrongly accused.
Our constitutional rights exist not for the protection of the guilty, but for the protection of the innocent.
In the 1960 British play, A Man for All Seasons, Sir Thomas More, the protagonist, asserts, “Yes, I’d give the Devil benefit of law, for my own safety’s sake.”
If those who claim that we must compromise the Bill of Rights for our own safety were to get their way, they would likely be singing a very different tune if they one day found themselves in the position of those whose rights they would so blithely take away.
* Gabrielle Weatherbee graduated from Bentley University in 2018 with a bachelor’s degree and is currently pursuing a master’s degree in accounting. When she’s not studying for the CPA exam, Gabrielle enjoys watching documentaries, trying new restaurants, and spending time outdoors.
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