The Unbearable Wrongness of Roe

From The Witherspoon Institute:

The Unbearable Wrongness of Roe

by Michael Stokes Paulsen

January 23, 2012

39 years ago, the Supreme Court delivered a radical, legally untenable, immoral decision. It has forfeited its entitlement to have its decisions respected, and followed, by the other branches of government, by the states, and by the people.

Today, thousands of people at the March for Life in Washington, D.C., are commemorating the thirty-ninth anniversary of a legal and moral monstrosity, Roe v. Wade, and its companion case, Doe v. Bolton. The two cases, in combination, created an essentially unqualified constitutional right of pregnant women to abortion—the right to kill their children, gestating in their wombs, up to the point of birth. After nearly four decades, Roe’s human death toll stands at nearly sixty million human lives, a total exceeding the Nazi Holocaust, Stalin’s purges, Pol Pot’s killing fields, and the Rwandan genocide combined. Over the past forty years, one-sixth of the American population has been killed by abortion. One in four African-Americans is killed before birth. Abortion is the leading cause of (unnatural) death in America.
It is almost too much to contemplate: the prospect that we are living in the midst of, and accepting (to various degrees) one of the greatest human holocausts in history. And so we don’t contemplate it. Instead, we look for ways to deny this grim reality, minimize it, or explain away our complacency—or complicity.
It is important, however, to view reality with eyes wide open, focus clear, and gaze not averted. On this thirty-ninth anniversary of Roe and Doe, I would like simply to set forth what Roe and Doe held, in as clear-headed and straightforwardly descriptive legal terms as possible, and to lay out its human and moral consequences. My brief tour of Roe’s unbearable wrongness begins with Roe’s radicalism—its extreme holding creating a plenary right to obtain or commit abortion—proceeds with Roe’s legal untenability, and concludes with Roe’s immorality and the moral problem of our seeming passivity and quiescence in response to the greatest legal and moral wrongs of our age.
Roe’s Radicalism
Start with Roe’s radicalism, a radicalism that we may no longer grasp because it has become so familiar. Roe created a constitutional right to obtain or commit an abortion of a human life—that is, to terminate the life of a human embryo or fetus. It is important to be clear-sighted about this: abortion kills a living human embryo or fetus. What distinguishes “abortion” from (say) miscarriage is the specific intention to kill a living fetus. What was alive before has been deliberately killed. Abortion takes a life. Further, the life taken ishuman life. There is really no doubt about that as a matter of biology. The embryo or fetus belongs to the species homo sapiens. It is a separate, living human being that is killed by abortion.
To be sure, that human being is killed at an early stage in its life cycle, and for a substantial part of that time could not live without direct biological connection to his or her mother (the person in whom Roe vests the right to terminate that human life). But that does not make the human embryo any less alive, any less human, or any less a separate life from the mother. It just makes the unborn baby more vulnerable and dependent.
The right created by the Supreme Court in Roe is a constitutional right of some human beings to kill other human beings. I do not mean for my description to be provocative, but simply direct—blunt about facts. One need not presume that the human fetus has a right not to be killed in order to recognize that, as a descriptive matter, Roe creates a right for one class of human beings to kill other human beings.
Roe, coupled with Doe, creates a plenary right to kill the embryo or fetus for essentially any reason, at any time throughout all nine months of pregnancy. Distilled to its essence, Roe created a “trimester” framework for abortion. In roughly the first three months of pregnancy, the right of abortion is avowedly plenary: abortion may be had for any reason. In the second three months, government may regulate abortion to protect the life or health of the mother, but again the right to have an abortion remains plenary. In the final three months—after the point of “viability,” when the human fetus could live on his or her own outside the mother’s womb—Roe says that abortion can be restricted or prohibited . . . except where abortion is necessary to protect the “life or health” of the pregnant woman.
This is a big exception. And here is where Doe steps in. On its face, Roe might appear, to the unwary or uninitiated, “moderate”—its trimester-balancing framework a measured, reasonable-sounding, proportionate act of judicial legislation concerning abortion. It is Doe that does a lot of the work, through an indirect and ultimately disingenuous definition of the “health” reasons thatalways may justify a woman’s decision to have an abortion and trump any interest of society in protecting fetal human life, even when the child could survive outside the mother’s womb. Doe holds that relevant “health” considerations justifying late-term abortions include “all factors—physical, emotional, psychological, familial, and the woman’s age—relevant to the well-being of the patient. All these factors may relate to health.” (Doe’s understanding of “the patient” did not include the fetus; Roe held elsewhere that the human fetus has no legal rights that any person is bound to respect.)
Roe then cross-referenced Doe’s stylized definition of health and incorporated it into the main holding. The result is that an abortion may be had, under Roeand Doe, for essentially any reason, throughout all nine months of pregnancy, up to the point of birth.
Nothing in any of the Court’s later abortion cases alters this definition of “health” or the right to abortion throughout pregnancy. Planned Parenthoodv. Casey, the 1992 case reaffirming Roe, tinkered slightly with the trimester framework and the point at which “viability” occurs but did not change Roe’s (and Doe’s) holding that abortion may be had for any reason, before viability, and for any “health” reason throughout pregnancy. The partial-birth abortion cases carried this understanding forward, holding that the state may not prohibit the abortion method of inducing birth and killing the fetus on the way out of the birth canal (Carhart I [2000]), unless an equally effective, equally “healthy” method of killing the fetus is available (Carhart II [2007]).
I suspect that if more people understood Roe’s and Doe’s actual holding fewer would support that constitutional regime. Roe was a truly extreme decision, creating an effectively unrestricted constitutional right to abort a living human being for any reason the mother might have, throughout pregnancy right up to the point of birth.
Roe’s Legal Untenability
This brings us to Roe’s utter indefensibility as a matter of constitutional law. If the U.S. Constitution actually protected such an extreme personal legal right to kill the human fetus, that would be troubling enough, but the trouble would be with the content of the Constitution. The further problem with Roeis that it has absolutely no basis in the text, structure, or history of the Constitution. No rule or principle of law fairly traceable to the text, discernible from its structure, or fairly derived from evidence of intention or historical understanding of an authoritative decision of the people, remotely supports the result reached in Roe. In terms of fair principles of constitutional interpretation, Roe is perhaps the least defensible major constitutional decision in the Supreme Court’s history.
Roe’s reasoning, distilled to its essentials, is that the Constitution creates a “privacy” right to abortion, on the premise that the right not “to bear” a child is protected by the Fourteenth Amendment’s Due Process Clause. No serious constitutional law scholar thinks this is a plausible reading of the Due Process Clause. That clause forbids government to “deprive any person of life, liberty or property, without due process of law.” Without due process of law are crucial words. The Due Process Clause does not say that government never may deprive a person of life, liberty or property. It only says that government may not do so “without due process of law”—that is, arbitrarily, lawlessly, not in conformity with duly enacted laws and accepted procedures for their application.
Many nonetheless support Roe’s holding as a policy matter and therefore seek to rationalize the holding some other way. Perhaps the goofiest is the suggestion advanced by a few law professors, in apparent seriousness, that abortion restrictions violate the Thirteenth Amendment’s ban on slavery. Saner, but in the end still unsound as a legal matter, is the notion that abortion laws discriminate on the basis of sex and thus deny “equal protection of the laws.” The defect in this argument is that abortion laws do not classify on the basis of sex or gender and are not disguised attempts to do so. Rather, they aim at conduct—obtaining or committing an abortion—when engaged in by persons of either sex. Abortion restrictions do not restrict acts of women because they are women; they restrict acts committed by men or women because they kill human fetuses. Further, ask a “pro-choice” “feminist” whether abortion should be permitted for reasons of sex-selection—that is, because the unborn child is a girl—and the sex discrimination argument begins to turn back on itself. All but the most blindly pro-abortion ideologues abandon the argument that abortion rights are required for gender equality, if that means abortion can be chosen for gender-selection of boys over girls.
In Planned Parenthood v. Casey, the Supreme Court rested the right to abortion back where Roe purported to find it, in the Due Process Clause. Recognizing the embarrassments created by this view, Casey added another prop: the doctrine of precedent or “stare decisis,” which is essentially all that is left to support Roe. But Casey’s invocation of the doctrine was transparently disingenuous: Because the public expects the Court to adhere (usually) to its past decisions, because the Court had staked its authority on Roe, and because the Court might be viewed unfavorably by some of the public if it reversed itself in such a case, the Court said that it had decided to adhere toRoe “whether or not mistaken.” Thus, what Roe held to be required by substantive due process Casey held to be required by stare decisis, even assuming Roe to be wrong.
If Roe was radical, Casey was craven. A majority of the Supreme Court apparently believed that Roe was wrongly decided, fully understood the moral and human consequences of the decision, and deliberately adhered to it anyway. Stare decisis has never been thought required by the Constitution, before or since. Brown v. Board of Education (1954) famously repudiatedPlessy v. Ferguson (1896) on the question of whether racial segregation was consistent with “equal protection of the laws.” The Court has overruled scores of its own precedents. Indeed, it overruled two cases in Casey. Casey’s reaffirmation of Roe, in the name of stare decisis, was a sham—perhaps the most transparently dishonest major judicial decision since Dred Scott.
Roe’s Immorality
Finally, there is Roe’s immorality—the abortion holocaust it unleashed—and the problem of our response to it. Roe is a radical decision and a legally indefensible one. But what really makes Roe unbearably wrong is its consequences. The result of Roe and Doe has been the legally authorized killing of nearly sixty million Americans since 1973. Roe v. Wade authorized unrestricted private violence against human life on an almost unimaginable scale, and did so, falsely, in the name of the Constitution.
It is hard to escape this conclusion, but not impossible—and many certainly try. I will not here belabor the question of whether the intentional killing of innocent, dependent, vulnerable human children is a grave moral wrong. My concluding point concerns the lengths to which we will go to deny the reality of this holocaust, because it is almost unbearable to contemplate and still go on living life as if nothing is terribly wrong. The cognitive dissonance is simply too great. And so we have become, in effect, a nation of holocaust deniers.
Here is the problem, undressed: If human embryonic life is morally worthy of protection, we have permitted sixty million murders under our watch. Faced with this prospect, many of us—maybe even most—flee from the facts. We deny that the living human embryo is “truly” or “fully” human life, adopt a view that whether the embryo or fetus is human “depends,” or can be judged in degrees, on a sliding scale over the course of pregnancy; or we proclaim uncertainty about the facts of human biology; or we proclaim moral agnosticism about the propriety of “imposing our views on others”; or we throw up our hands and give up because moral opposition to an entrenched, pervasive social practice is not worth the effort, discomfort, and social costs. The one position not on the table—the one possibility too hard to look at—is that abortion is a grave moral wrong on a par with the greatest human moral atrocities of all time and that we passively, almost willingly, accept it as such.
All of this should tell us a few more sobering things. It should tell us that, much as we would like to believe that human beings have become more morally conscious, more sensitive to injustice and intolerant of clear evil, it remains the case that we often either fail to recognize it in our midst, or refuse to respond to it decisively, out of self-interest or cowardice. It should tell us that, much as we would like to think that we surely would have stood bravely against slavery, even if embedded in a nineteenth-century society that tolerated and accepted it as a legal right, we might have acquiesced or been tepid in our condemnation. It should tell us that, much as we would like to think we would never have put up with what transpired in Nazi Germany in the 1930s and the 1940s, the evidence of our lives in twenty-first century America is that we might have put up with quite a lot.
And it should tell us finally, that, as much as we may claim to admire our governmental and constitutional system, the decisions of the Supreme Court in the abortion cases expose the Court—at least on this matter of life, death, and law—as a lawless, rogue institution capable of the most monstrous of injustices in the name of law. The Court has, with its abortion decisions, surely forfeited its legal and moral legitimacy as an institution. It has forfeited its claimed authority to speak for the Constitution. It has forfeited its entitlement to have its decisions respected, and followed, by the other branches of government, by the states, and by the people. Yet the docility of the American people with respect to Roe and abortion rivals the pliancy of the most cowardly, servile peoples toward ruinous, brutal, anti-democratic regimes throughout world history.
The Supreme Court is empowered by the Constitution to faithfully interpret the Constitution. But it is not alone in that power, and when it exceeds it and violates it, it is the responsibility of other actors in our system to check the abuse. As James Madison wrote in The Federalist No. 49, “the several departments being perfectly co-ordinate by the terms of their common commission, neither of them, it is evident, can pretend to an exclusive or superior right of settling the boundaries between their respective powers.” Moreover, it is “the people themselves” who are “the grantors of the commission” and who “can alone declare its true meaning and enforce its observance.”
The Court’s decision in Roe v. Wade should not be accepted as law, in any sense. It should be resisted by legislatures and it should be refused enforcement by executive officials because it is not the law. It should be resisted by all citizens, with all the resources at their disposal, and perhaps even with resources not (yet) at their disposal. Anything less is holocaust denial.
Michael Stokes Paulsen is University Chair and Professor of Law at the University of St. Thomas, in Minneapolis, and co-director of its Pro-Life Advocacy Center (PLACE).
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What the Constitution Says – Were Senator Paul’s Rights Violated When He Was Detained by TSA? by Mac Slavo

What the Constitution Says – Were Senator Paul’s Rights Violated When He Was Detained by TSA? by Mac Slavo

British court rules Catholic midwives can be forced to participate in abortions

from LifeSiteNews:

British court rules Catholic midwives can be forced to participate in abortions

John-Henry Westen

Wed Feb 29 16:05 EST

Abortion

EDINBURGH, U.K., February 29, 2012 (LifeSiteNews.com) - Judgment was handed down today in the case of two senior midwives from Glasgow who have a conscientious objection to abortion. The midwives have been told that they must accept the decision of their hospital management that they must oversee other midwives performing abortions on the labour ward.

Lady Smith, judge in the Court of Session in Edinburgh, ruled that the senior midwives’ role is not covered by the conscience clause in the Abortion Act. 

Both the midwives have served for over 20 years at the Southern General Hospital, caring for many thousands of mothers and babies. The case arose when the hospital demanded that all senior midwives must take responsibility for overseeing mid-term and late term abortions. Since 2008 the hospital has insisted that these abortions, mostly for suspected disability in the foetus, must be conducted on the labour ward, rather than the gynaecology ward where most early abortions are performed.

The midwives in the case, Miss Mary Doogan and Mrs Connie Wood, argued that they had never been required to supervise abortion procedures in the past, and that the hospital was asking them to be morally, medically and legally responsible for abortions. They argued that this conflicted with their profound objection to abortions and with the right to opt-out that is protected in the 1967 Abortion Act.

Commenting on the judgment, Paul Tully, general secretary of the Society for the Protection of Unborn Children (SPUC) said: “We are very disappointed by the judgment. SPUC has supported the midwives in bringing their case, and will now be considering their further legal options with them.”

Neil Addison, the director of the Thomas More Legal Centre, noted, “The case is yet another example of the way in which the UK Courts are interpreting s9 of the European Convention on Human Rights (Freedom of Religion) in the most limited and restrictive way possible.”  Addison continued, “The courts have not hesitated to use the convention to protect murderous terrorists but have refused to use it protect two midwives who do not want to kill unborn children.”

Speaking on behalf of both herself and the other midwife in the case, Doogan said, “Connie and I are both very disappointed and greatly saddened by today’s verdict. For most of our 20-plus years of employment as midwifery sisters at the Southern General Hospital we have been proud to be associated with a maternity unit in which the right of all midwifery staff to freedom of conscience has been acknowledged, protected and upheld with no detrimental outcome to any mother whatsoever.”

Lady Smith ruled that the 1967 abortion act only granted qualified conscience protections in relation to abortion. “The nature of their duties does not in fact require them to provide treatment to terminate pregnancies directly,” she said. “They are sufficiently removed from direct involvement as, it seems to me, to afford appropriate respect for and accommodation of their beliefs.”

Addison criticized “the extremely restrictive interpretation the judge has put on the Conscientious Objection clause in s4 of the Abortion Act.”  The interpretation, he said, is such that “believing Catholics, Muslims and others will never be able to take any form of supervisory or management role as midwives or nurses unless they are prepared to be complicit in the provision of abortions.”

The Federalist No. 31: Concerning the General Power of Taxation (continued) - HUMAN EVENTS

The Federalist No. 31: Concerning the General Power of Taxation (continued) - HUMAN EVENTS

United States v. Jones — Rebuilding the Property Foundation of the Fourth Amendment

From USJF:

United States v. Jones — Rebuilding the Property Foundation of the Fourth Amendment

January 23, 2012 @ NewsEditor → 3 Comments

                William J. Olson & Herbert W. Titus; January 23, 2012; wjo@mindspring.com

Law enforcement’s most recent effort to turn America into a Soviet-style surveillance society through the use GPS technology has been rebuffed by a unanimous U.S. Supreme Court.  The Court based its opinion on, and breathed new life into, the Fourth Amendment’s protection of the American People against unreasonable governmental searches and seizures.  Even better, the Court’s decision was based on the original textual meaning of the Fourth Amendment which was based on property rights, rather than its judge-made, evolving doctrine of privacy.  There is reason for hope that in the fight against unlawful searches and seizures; the tide may have been turned.

In a unanimous decision, the Court ruled that the federal government violated the Fourth Amendment’s ban on unreasonable searches and seizures by surreptitiously, without a warrant, attaching a GPS tracking device on a private vehicle and monitoring the movements of that vehicle on public roads for nearly an entire month.  The Government contended that the American people have no reasonable expectation of privacy in a world where the technology available to the government enables it to monitor every American citizen as he moves about on the public highways and byways.  The case was United States v. Antoine Jones.

Although the ruling was unanimous, the court split sharply on the reason why the Fourth Amendment was violated.  Four justices — Alito, Ginsburg, Breyer, and Kagan — reasoned that the vehicle owner had a “reasonable expectation of privacy” that his movement would not be monitored for such a long period of time.  The other five justices — Scalia, Roberts, Thomas, Kennedy, and Sotomayor — put privacy aside, deciding that the search was unreasonable simply because the government, without a warrant, trespassed on the vehicle owner’s private property.  (Justice Sotomayor filed a concurring opinion, but also joined in Justice Scalia’s opinion.)

On May 16, 2011, our law firm filed the only amicus brief at the petition stage with the Supreme Court, urging the Court to review the decision of the U.S. Court of Appeals for the D.C. Circuit.  That brief, filed on behalf of Gun Owners of America, The US Justice Foundation and other clients, urged the Supreme Court to grant the petition for certiorari and use this case as an opportunity to re-examine the last few decades of its decisions in this area, and return to the property roots of the Fourth Amendment.

After the Supreme Court granted certiorari, on October 3, 2011, our firm filed yet another amicus brief on the merits in the U.S. Supreme Court on behalf of an widely diverse group of organizations, including two national political parties:  Gun Owners of America, Inc., Gun Owners Foundation, U.S. Justice Foundation, Institute on the Constitution, Center for Media and Democracy, Free Speech Coalition, Inc., Free Speech Defense and Education Fund, Inc., DownsizeDC.org, Downsize DC Foundation, Conservative Legal Defense and Education Fund, Declaration Alliance, Restoring Liberty Action Committee, the Lincoln Institute For Research and Education, Policy Analysis Center, Constitution Party National Committee, and Libertarian National Committee, Inc.

In filing these briefs, our firm was joined by distinguished co-counsel:  Joseph W. Miller, 2010 Republican Candidate for U.S. Senate in Alaska; Gary G. Kreep, Executive Director of U.S. Justice Foundation; and civil libertarian Mark B. Weinberg.

In both of these briefs, we urged the Court to re-examine the Fourth Amendment text based on its historic roots, and return to its early precedents which rested upon traditional common law principles protecting private property from Government intrusions.  Writing for the majority, Justice Scalia did just that.

The government’s brief denied that the attachment of the GPS device to Jones’ Jeep Cherokee, generating 2,000 pages of information, during the course of a month of monitoring, without his consent, or the benefit of a search warrant, was a “search” or a “seizure” and argued the Fourth Amendment did not even apply.

Opening the majority opinion with a citation to a 1765 English case, Entick v. Carrington, Justice Scalia laid the foundation for the decision as the original meaning of the text:  “The Government physically occupied private property for the purpose of obtaining information.  We have no doubt that such a physical intrusion would have been considered a ‘search’ within the Fourth Amendment when it was adopted.”

Justice Scalia reinforced his reliance on Entick, citing two Supreme Court opinions decided 100 years apart, celebrating Lord Camden’s opinion as  a “monument of English freedom,” which set forth “in plain terms the significance of property rights in search and seizure analysis.”  Quoting from the opinion, Scalia wrote:  “[O]ur law holds the property of every man so sacred, that no man can set his foot upon his neighbor’s close without his leave; if he does he is a trespasser, though he does not damage at all; if he will tread upon his neighbor’s ground, he must justify it by law.”

After this brief history lesson, Justice Scalia turned to the constitutional text:  “The text of the Fourth Amendment reflects its close connection to property, since otherwise it would have referred simply to ‘the right of the people to be secure against unreasonable searches and seizures’; the phrase ‘in their persons, houses, papers and effects’ would have been superfluous.”

Then, in a remarkably frank admission as to how far from the text the Court has strayed, Justice Scalia stated that “our Fourth Amendment jurisprudence was tied to common-law trespass, at least until the latter half of the 20^th century [but] [o]ur later cases … have deviated from that exclusively property-based approach” in favor of a more flexible, modernist analysis based upon the court’s perceptions of a “reasonable expectation of privacy.”

Dismissing the Government’s exclusive reliance upon the proposition that the installation of the GPS tracking device did not violate anyone’s privacy expectation, Justice Scalia maintained that “Jones’s Fourth Amendment rights do not rise or fall with the [privacy] formulation.”  Rather, he observed that “for most of our history the Fourth Amendment was understood to embody a particular concern for government trespass upon the areas (‘persons, houses, papers and effects’) it enumerates.”

Having concluded that Jones’s vehicle was a protected “effect,” Justice Scalia refused to even consider whether Jones had any expectation of privacy, the Government having admittedly trespassed on his private property.  In its refusal to reach the privacy issue, the majority restored the view that the Fourth Amendment is, first of all, primarily designed to protect private property and that the “reasonable-expectation-of-privacy test has been added to, not substituted for, the common-law trespassory test.”  (Italics original.)

Our amicus brief had urged the Court to take one step further, rejecting the privacy test altogether as an unsuitable legal standard to protect the private property interest that the Fourth Amendment was designed to protect.  Properly understood and applied, a property-based Fourth Amendment would protect everything that a privacy doctrine would protect — and much more, as it would fix our protections in the Constitutional text rather than the subjective perceptions of the Justices regarding which expectations of privacy are “reasonable.”   Nonetheless, by restoring the primacy of the Amendment’s property protection of “persons, house, papers and effects,” the majority has laid a foundation for re-examining the privacy add-on when it does not protect traditional common law property rights, such as the rights in one’s personal conversations and movements.

Indeed, Justice Scalia’s opinion has opened the door to return to an earlier time.  In explanation of theJones majority decision, Justice Scalia stated that the Court was simply  “apply[ing] an 18^th-century guarantee against unreasonable searches, which we believe must provide at a minimum the degree of protection it afforded when it was adopted.”  (Italics original).  From the late 19^th century and well into the mid-20th century, the courts consistently held that the Fourth Amendment guarantee prohibited searches for “mere evidence,” even if the Government had probable cause and a warrant.  This rule, in turn, was based upon the 18^th century property-based ruling in Entick, now reinstated as the foundation for the 21^st century property-based opinion in Jones.

The only thing standing in the way of a resurgent and robust Fourth Amendment is Justice Alito’s concurring opinion in Jones, which rested on the judgment of four justices that the GPS tracking of Jones’s Jeep went on for longer than they thought proper and, thus, conflicted with the “reasonable expectation of privacy” test.  In truth, Justice Alito seemed annoyed that the Court would base its decision on the original textual meaning of the Fourth Amendment, since it would create “[d]isharmony with a substantial body of existing case law.”  Curiously, Justice Alito appeared to agree with the Government that the placing of the GPS device was neither a search nor a seizure, and yet, disagreed with the Government’s conclusion that the use of the device in this case did not violate the Fourth Amendment.

Justice Alito dismissed the majority opinion as being “based on 18^th-century tort law” as if nothing that old could be relevant to resolving a Constitutional issue.  In fact the decision was reached after a systematic search for the textual meaning of the Fourth Amendment, which is based on property law, and happens to be an 18^th Century document.  While Justice Alito conceded that “judges are apt to confuse their own expectations of privacy with those of the hypothetical reasonable person” he preferred that test which was fluid, and evolving, since “new devices will continue to shape the average person’s expectations [of] privacy.”

Significantly, Justice Alito could not win over Justice Sotomayor, who joined the property-based majority opinion, and added a concurring opinion of her own in which she  employed the privacy rationale to rule against the Government.  Writing for herself, she reinforced the majority’s “trespassory test” to be an “irreducible constitutional minimum,” and at the same time she openly stated that on privacy grounds “it may be necessary to reconsider the premise that an individual has no reasonable expectation of privacy in information voluntarily disclosed to third parties.”  Whatever the expectation of privacy in such case, there is no question that a person retains a property interest in the information so transmitted that the third party not disclose it to another without the person’s consent.

For years critics of the Court’s Fourth Amendment jurisprudence continually have urged it to modify its standards to adapt the Constitution to meet technological change.  It is refreshing to see the Court willing to return to the original principles of liberty as stated in the text, even when that text is in disharmony with its own decisions, and with the modernizing impulse of judicial law-making.  Jones is, thus, an encouraging development not only for the Fourth Amendment, but for all areas of constitutional law where the Court has strayed from its original design.

Bill Olson served in three positions in the Reagan administration.  Herb Titus taught constitutional law for 26 years, concluding his academic career as founding dean of Regent Law School.  They now practice constitutional law together, defending against government excess, at William J. Olson, P.C.  They can be reached at wjo@mindspring.com and followed on Twitter @Olsonlaw.