Tuesday, August 3, 2010

Ya gotta watch out for them "nice guys"

Experience should teach us to be most on our guard to protect liberty when the Government's purposes are beneficent. Men born to freedom are naturally alert to repel invasion of their liberty by evil-minded rulers. The greatest dangers to liberty lurk in insidious encroachment by men of zeal, well meaning but without understanding.

Louis Brandeis, Olmstead v. United States, 1928

I came across this quote in Frederich Hayek's The Constitution of Liberty. This warning starts off the seventeenth chapter titled, "The Decline of Socialism and the Rise of the Welfare State" and is an appropriate reminder to us today as government massively expands on the justification of helping some segment of society. The quote prompted me to search for its source, curious about the the context which inspired Justice Brandeis to issue this advice.

The quote is part of Brandeis' dissenting opinion in Olmstead v. United States. The opinion is worth reading in its entirety as an excellent example of a principled interpretation of the Constitution. The issue at stake was whether or not wiretapping was a violation of the Fourth and Fifth Amendments. The 1914 supreme Court case Weeks v. United States had previously established that illegally obtained evidence could not be used in a criminal trial because it violated standards for search and seizure. Brandeis argues that although telephones did not exist at the time of writing of the Constitution, the principle involved is protection of the private citizen's security from government invasion--no matter the form. Here's another taste of his principled reasoning in Olmstead:

    'The principles laid down in this opinion affect the very essence of constitutional liberty and security. They reach farther than the concrete form of the case there before the court, with its adventitious circumstances; they apply to all invasions on the part of the government and its employe of the sanctities of a man's home and the privacies of life. It is not the breaking of his doors, and the rummaging of his drawers, that constitutes the essence of the offense; but it is the invasion of his indefeasible right of personal security, personal liberty and private property, where that right has never been forfeited by his conviction of some public offense-it is the invasion of this sacred right which underlies and constitutes the essence of Lord Camden's judgment...There is, in essence, no difference between the sealed letter and the private telephone message. As Judge Rudkin said below:
    'True, the one is visible, the other invisible; the one is tangible, the other intangible; the one is sealed, and the other unsealed; but these are distinctions without a difference.'

    Let us hope that the judges who will review the constitutionality of ObamaCare think as clearly and in such a principled manner. It's time to reverse this country's tend toward greater and greater indentured servitude of one citizen for the sake of another and get back to a principled application of individual rights, equally applied to all.


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