Distinguished panelists view privacy through lens of U.S. constitution

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U.S. Magistrate Judge Joseph Scoville and former Michigan Supreme Court Justice Thomas Brennan, who was the founder of Cooley Law School in 1972, smile at moderator and Cooley Constitutional Law Professor Devin Schindler’s humorous introduction.

LEGAL NEWS PHOTO BY CYNTHIA PRICE

by Cynthia Price
Legal News

“We the People of the United States, in Order to form a more perfect Union, establish Justice, insure domestic Tranquility, provide for the common defence, promote the general Welfare, and secure the Blessings of Liberty to ourselves and our Posterity, do ordain and establish this Constitution for the United States of America.”

Most of the approximately 125 attendees at a Constitution Day discussion of privacy rights issues in light of the news about National Security Agency (NSA) practices registered surprise when Thomas M. Cooley Law School founder and former Michigan Supreme Court Chief Justice Thomas E. Brennan asked them to write out the preamble to the U.S. Constitution.
No one in the room, including fellow presenter Joseph Scoville, a magistrate at the United States District Court for the Western District of Michigan and moderator Devin Schindler, who teaches Constitutional Law at Cooley, got it exactly right, though they and others came close.

That was the opening salvo in Justice Brennan’s remarks; he said that when he taught he would always ask his students to do the same. He went on to add, “You know, it is Constitution Day, it is not Constitutional Law Day. It’s sad to me that knowledge about the Constitution seems to take a back seat to constitutional law, which is really all about the interpretations of the courts.”

Justice Brennan did not spend much time on the subject of privacy in the Constitution, indicating as many commentators have before him that there is no express right to privacy in the document. He also talked about asking his golf partners if the president had a right to kill people, which led back to important subjects not in the Constitution which the framers had no reason to think would come up.

That in turn led him to a subject he clearly feels passionately about: the benefits of holding a national constitutional convention to address what has developed since 1789.

In making his case, Justice Brennan reminded attendees of the story of Gregory Watson. In 1982, while researching the failed Equal Rights Amendment, Watson observed that there were two amendments originally proposed at the same time as the Bill of Rights which had also failed to be ratified. He thought one of them had merit. Written by James Madison and his colleagues, it mandated that “No law, varying the compensation for the services of the Senators and Representatives, shall take effect, until an election of Representatives shall have intervened.”

Watson set out to see if he could get enough states to ratify it, and it eventually became the 27th Amendment to the United States Constitution.

Around the time Watson was first writing his student paper, Justice Brennan challenged his own students. “We had a mock convention in the parking lot next to the administration building in Lansing. Phil Prygoski [well-known Cooley professor] gave the keynote speech. It was a very interesting exercise.”

Noting that some of the constitutional wording is outdated or refers to practices no longer taking place (for example, “marque and reprisal” which refers to private shippers being allowed to capture enemies on the high seas) Justice Brennan said, “I think it’s time for the people of this country to get on the idea of having a constitutional convention which will be at least semi-permanent... If we had a constitutional convention we might start obeying the constitution as it’s written and it could become a living constitution — that’s what they intended it to be.”

Judge Scoville, whose remarks preceded Justice Brennan’s, treated the subject of the Constitution, privacy and the NSA in more detail. After thanking Devin Schindler for his “hyperbolic” introduction — Schindler said that he came to Grand Rapids specifically to “study at the feet” of Scoville, then at Warner Norcross and Judd, and was severely disappointed when Scoville  left the firm a week after his arrival — Judge Scoville related the question directly to the fourth amendment.

He read the exact wording: “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,”
Scoville said, “What I want to do is put the access to metadata in the context of everyday garden variety law enforcement, not national security – mail fraud, child pornography, crossing state lines to deliver stolen goods, the sort of stuff I deal with every day.”

He detailed the history of Supreme Court decisions which looked first at where citizens have the reasonable expectation of privacy. Katz v. United States in 1967 set up the notion that an intrusion into technology is indeed a “search” subject to the fourth amendment, making wiretaps without a warrant illegal. Smith v. Maryland countered, however, that law enforcement’s collecting information about who someone had called, based on something called the “pen register” at the telephone company, was not in violation of a person’s reasonable expectation of privacy.

The 1986 Stored Communications Act, Judge Scoville said, used the same logic to allow investigators access to emails more than six months old without having to meet the stringent “probable cause” standard. He pointed to a recent Fifth Circuit Court opinion that the Stored Communications Act allows for access to “meta” cell phone data.

He concluded by saying, “Just talking about statutory protection, there’s a very strong argument that what the NSA did is OK on the basis of existing precedent — so that’s my shirttail analysis.”

Schindler asked the panelists questions based on cards that the students, faculty and attorneys present submitted, and Justice Brennan had one more surprise for the group.

When asked if he had something in mind to propose if there should be a national constitutional convention, he was immediately ready with an answer.

“I would propose an amendment which would say that the Supreme Court shall consist of the nine present incumbents and their successors, who shall be appointed by the president for 18-year terms from a list of five persons nominated by the chief justices of the 50 states.

“Second paragraph: The Supreme Court shall render no opinion increasing or diminishing the power of the government or rights of the people.”

When Schindler commented that that would have changed a lot of the court’s historic decisions, Justice Brennan replied, “Exactly. We need to tell the justices, you can render opinions  — but you can’t make law and you can’t create new powers of the government.”

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