Legal Marriage Put Simply

By Julian Dunraven, J.D., M.P.A.

Yesterday, the U.S. Supreme Court heard oral arguments in Obergefell v. Hodges (the gay marriage case).  This has, predictably, provoked almost everyone to begin shouting opinions as to the meaning of marriage at one another and, unsurprisingly, each opinion is different.  The Supreme Court will not be deciding this case based on any particular view of marriage, however, but upon the underlying legal issues involved. Let me see if I can dispel some of the confusion about this case, by clarifying those issues.  

First, marriage is three things: it is a sacrament bestowed in various religious traditions; it is a contractual agreement between the married parties; and it is a bundle of rights granted by the state.  The sacramental aspect of marriage is defined entirely by each religion, and is not in dispute.  Under the 1^st Amendment to the U.S. Constitution, the government has no role in this, and never will.  Jewish rabbis cannot be forced to perform Muslim weddings, and Catholic priests cannot be forced to perform gay weddings.  Period.  That is fundamental religious freedom.

The second aspect of marriage, the contract, is more complex, but is also undisputed.  Talk to any ten married couples, and you will get ten different ideas about what marriage is, means, and requires—and they will all be correct.  For better or worse, each couple decides for themselves what their marriage will require of each party.  Sometimes, that arrangement is explicitly stated in a pre or post nuptial agreement; sometimes it is developed organically over time through consensus.  In any case, this is not going to change either, and is not in dispute.

Those two aspects of marriage fully encompass the entire marriage concept to most people.  Yet, it is the third aspect of marriage, the bundle of rights granted by the state, that causes all the legal fuss.  There are several thousand rights involved in the marriage bundle, ranging from medical care and treatment to death and social security benefits.  While the assortment of rights in the bundle are numerous and complex, the issues involving the marriage bundle itself are not terribly difficult to grasp.

The first big legal question is why the Supreme Court should decide this issue, and not a more democratic process.  That is simple: we are not a democracy; we are a constitutional republic.  Under a democracy, the majority will always rules.  Thus, it is nothing more than legitimated mob rule.  Its shortcomings are revealed most starkly in the democracy of ancient Athens, which executed Socrates, perhaps the greatest thinker in history, merely for making the majority uncomfortable.  In the U.S., we framed the Constitution precisely to prevent such tyranny of the majority, and to guarantee our rights and liberties, many of which are specified within it.  A right is absolute, and is not subject to majority rule.  Under our constitutional system, it is the judicial branch, with the Supreme Court at its head, that is most accessible to individuals, and thus serves as the primary guardian of our rights. 

In this case, the rights the Supreme Court must consider stem primarily from the 14^th Amendment to the U.S. Constitution.  This is the amendment that guarantees that neither the states nor federal government can deprive any person of life, liberty, or property without due process of law.  It also guarantees that every person will enjoy equal protection of the laws.  At the very least, if any government passes a law or regulation that impacts these rights or liberties, it must have a rational basis for doing so.  That means that the law must make logical sense, and achieve a legitimate purpose.  

So is marriage a right?  Absolutely.  In fact, the Supreme Court has ruled repeatedly that it is a fundamental right, included in the concept of “liberty,” the amendment mentions.  The constitution does not mention it more specifically because the Bill of Rights was never intended to be exhaustive (many founders thought it was unnecessary to include at all), and the founders would have found the idea of specifying a right to marry to be absurd, as it is so fundamental to being human. 

That is the easy part.  While the concept of marriage is irrevocably enshrined in judicial precedent, its legal expression has changed considerably over time.  Long ago, marriage granted a property interest to the husband over his wife and children as an economic unit.  The wife’s legal identity was entirely subsumed beneath her husband, and it was not always consensual.  Of course, this allowed for marital rape.  Interracial marriages were not permitted, nor were marriages of the handicapped.  Both were considered criminal offenses. At times, interfaith marriages were also prohibited.  Those unfortunate enough to be sterile might find their marriages annulled.  All of this has changed.

Today, a legal marriage consists of a consensual and legally equal union between two people of any ethnicity or faith, whom may or may not be sterile, may or may not have children—or even intend to, may or may not cohabitate, may or may not share resources, may or may not be sexually intimate, and may or may not even like one another but, for whatever reason, choose to be married anyway.  

Enter the Equal Protection Clause.  Given the rather vague legal standard for modern marriages, the Supreme Court must decide whether there is even any rational basis for restricting the modern institution of marriage to a man and a woman, thus excluding all same sex partners who wish to participate equally in the institution.  This was the main challenge the Justices put to the opponents of gay marriage. 

In answer, opponents of gay marriage generally cite two reasons for preserving the definition of marriage as limited to a man and a woman.  The first is that it adheres to long tradition, and the second is that it helps foster what the state sees as an idea setting for childrearing.  Both of these justifications were offered to the Court.

Tradition is the weakest of the two arguments.  To argue that marriage has existed for countless millennia unchanged, and has always been between a man and a woman across every culture and civilization is highly misleading.  Two-spirited people in some Native American nations wed either sex.  Many other cultures throughout time had established same sex relationships that carried legal privileges and duties that today would look very similar to modern marriages. The same sex relations of ancient Greece and Rome are especially relevant.  En balance, many marriages between men and women in past ages were conducted according to rules and legal standards we would not recognize as marriage today, and might well find abhorrent.  Several such instances are listed above.  Finally, tradition carries no weight just because it is old.  It also has to be good.  Slavery is perhaps one of the oldest and most culturally universal traditions on earth.  However, it is evil, and was thus abolished in this country.  Thus, the argument for tradition, by itself, cannot stand, and indeed the Justices expressed extreme skepticism for it.  

In answer, the states attempting to preserve their traditional definitions of marriage offered the justification that marriage between a man and a woman serves to honor and encourage an ideal procreative bond between parents and their biological children.  Here too, though, they encountered great skepticism.  States allow marriages to dissolve in divorce proceedings, even when children are involved.  Many women, whether single or in lesbian relationships, undergo artificial insemination with state sanction.  States further permit single parent adoptions, as well as gay adoptions.  States also permit marriages for sterile couples, couples past the age of childbearing, and couples where one party may be in prison, and is incapable of either consummating the marriage, or even of adopting children.  It is exceptionally difficult to see where the interests of the marital children in a stable family unit diverge from the interests of the non-marital children households with similarly stable--but gay-- families, or even in single parent homes.  It is equally difficult to see how those married couples incapable of bearing children or adopting them advance that supposed interest.  Mostly, it seems an irrational distinction.  

Once one eliminates tradition and child rearing as sufficient justifications for excluding same sex couples from the legal institution of marriage, only two explanations remain, both of which are legally invalid.  The first is animus, or disapproval of same sex relationships and the belief that they should not receive the same honor or sanction as heterosexual relationships.  While everyone is free to take moral positions on any issue, creating separate legal statuses for a disapproved class of people violates the equal protection clause, and is thus unconstitutional.  

The second remaining objection grows out of conceptions of marriage rooted in its sacramental aspect for many religions, or  its contractual aspects in many personal preferences, where the idea of a same sex union may have no place.  These are important aspects of marriage, certainly, but they are not legally significant, nor would they be impacted by any legal ruling.  They remain firmly within the domain of personal religious belief, protected by the 1^st Amendment, but also prevented by that amendment from becoming universal legal standards.  

These deficiencies in the arguments of those states attempting to preserve the definition of marriage as exclusively between a man and woman are why every federal court save one has ruled in favor of gay marriage.  It is extraordinarily difficult to find a rational basis for the exclusion, given our society’s nebulous definition of marriage and rather open standards for adoption and child rearing.  Many have suggested that the government get out of the marriage business entirely and leave the concept to churches and individuals.  That would probably be the most principled solution.  However, so many legal rights and structures are tied up in the bundle we call legal marriage, that our societal structures would not tolerate a complete state withdrawal from the concept—nor is that an option the Court could take in this case.  As a result, it looks quite likely that the Court will rule in favor of extending the fundamental right of marriage to same sex couples, not because they want to change the definition or meaning of marriage, but because they cannot find a logical reason to prevent the changes we have already made from applying to same sex couples too.     

The Purpose of Higher Education and the Myth of Job Training

By Julian Dunraven, J.D., M.P.A.   

If you ask almost anyone why they would go to college, the answer is likely to be that they value the better career options they believe going to college offers.  They would be right to say so.  Studies consistently show that those with college educations tend to earn more money over a lifetime than those without college education.  Unfortunately, this seems to reinforce the widespread and erroneous belief that college is or should be job training.  

 

These days, any new college applicant who announces a major in the Arts—or even Sciences—will inevitably face endless fretting from family and friends over what to do with such a study, followed by suggestions for something more “practical,” like Engineering or Business instead.  The assumption is that one’s field of study should translate directly into career utility.  Even some otherwise esteemed professors, like Dr. Bryan Caplan of George Mason University’s Economics Department, now lament that the faculties of higher education are woefully bereft of “real world experience,” and might serve the career training function better if they were forced to get real jobs themselves.  

Caplan points out that academics, insulated within the Ivory Tower of universities, provide incredibly poor training in skill acquisition through their lectures.  He further insists that the format of academia (going to class at will, turning in a few papers, and taking a final exam) is nearly useless for teaching good work habits.  He also reminds us of enormous piles of evidence demonstrating that professors and classroom lectures often do not teach people how to think so much as how to parrot the professor.  Instead, he argues that higher education merely serves a signaling function to employers, something I would call a gauntlet proving, that a prospective employee knows how to put in the required work and follow directives.  

For a student merely looking to find employment, what one studies at university is almost irrelevant.   In the end, nothing really matters save that you have the diploma that proves you ran the gauntlet while others did not or could not.  A student so tested by a university, will then be hired by an employer. Actual job skills will be learned on the job through experience.  That signaling function, as Caplan points out, does indeed mean that greater career success is a consequence of higher education, but it is not the purpose or intent of higher education itself, and does not mean professors should reorient themselves to that function.  While Caplan is quite correct that higher education provides poor career training, he entirely misses the point of higher education in general—as do most people.

It is true that most people are unlikely to ever directly use courses in History, Philosophy, or Anthropology during their careers.  But they were never intended to be so utilitarian.  Indeed, the notion of college as career training is quite modern, and grows out of the same Progressive movement that first shaped public education into the K-12 system originally designed to train factory workers.  Higher Education was intended for a different type of social engineering.    

College is supposed to help those charged with governing society, whether they are professionals, business executives, government agents—or simple citizens. It should provide an understanding of the government, the culture, its social bonds and markets, and its exalted principles. It should give these community leaders the tools to understand the problems people have faced before, are facing, and will face, as well as provide ideas for how to solve some of those problems through a breadth of understanding and cross disciplinary research. To do this, however, requires that colleges actually believe in something, and that professors actually profess truth. Our modern universities largely reject universal principles or truth, and discount the idea of universal ethics, instead promoting a banal multiplicity of perspectives—to no apparent end. Thus, its moral worth eliminated, higher education is left with the meager utility for job training. This is a tragedy.  

What use is studying Rome, the British Empire, and the American experiment to the mere job of a modern business executive who finds it much more useful to study marketing? We know the answer to that only when we see the ignorance and apathy of the people faced with the collusion of government and social media companies to accommodate universal surveillance, not just in China, but here in the U.S.A. Does this violate the Constitution and basic human freedom?  Certainly. But what earthly use is the Constitution, anyway, when we know the utility of safety and of government favor? 

This is not training for mere careers; it is training for being moral leaders among the citizenry.  It is the necessary statesmanship required for the survival of any republic.  Such education is necessary, not to teach individuals how to function in business, but what vigilance they need to keep over their society and government to do business at all.  

Some might object that exploring such concepts is best done by the professions, where knowledge specialization is vital, and it is easy to see the connection between curriculum and the associated career paths.  Those who go onto become professors and researchers, attorneys, or physicians quite reasonably engage in esoteric study, but the rest of society should focus on being productive.   Once we isolate such knowledge though, who would ever heed whatever wisdom it could offer?  If the intellectual elite only spoke to one another, what real influence would they have on society?  They rely upon undergraduates to study their ideas, and bring them out into the citizenry.  These students then disseminate their knowledge to their associates, providing an ethical framework for their businesses, perspective on the role of government to friends and family, and a better understanding of the framework of society itself, by which we protect our fundamental principles.  

I happen to be one of those professors Caplan so admires; beyond my academic career, I have a “real” job as a business attorney.  I am sure this experience adds some welcome flavor to my classes. Yet, I did not start teaching because I thought people needed better job training.  Indeed, the most job training I have ever seen anyone take from college is a thorough knowledge base; they invariably get their actual skills in employment.  Rather, I began teaching because I noticed such a profound lack of ethics and moral reasoning in the workforce, as well as complete ignorance of the history and governing principles that afforded them the opportunity to pedal their labor at all.  These ideas do not develop from skill training, but from those anti-utilitarian subjects like History, Philosophy, and Political Science.  This is the sort of thing managers and executives—college graduates— are supposed to be instilling into their staff and corporate culture, but it is largely absent.

I am the first to admit, however, that colleges are failing in this vital duty.  Our bizarre notion of higher education as job training has resulted in an equally erroneous idea that everyone should thus go to college.  Such universalism destroys the ability of colleges to convey the few skills they should be instilling (such as research, analytics, writing, communication, etc.) as they are forced to lower standards to matriculate the masses.  Moreover, fueled by an endless supply of printed student loan money ready to fund anyone who wants to attend, the colleges no longer have to offer courses of substance or principle at all, but are free to indulge in whimsical nonsense.  Indeed, for most students, who care nothing for education, and have no incentive to care about the value of their tuition, but merely seek to earn their diplomas to enter the workforce, the absurd classes without accountability are the most appealing. 

This is all, of course, profoundly wrong.  Even so, the solution is not to capitulate, and call for professors to be better job trainers.  Rather, we might think of cutting off the free flowing federal student loans.  It would limit the population to those who would serve as true opinion leaders, those who truly valued education enough to put effort into getting there. More, it would restore accountability to the universities, lower the bloated tuition, and vastly improve standards all in one blow.

I agree that higher education has devolved into wretchedness.  I agree that it is now provides such limited utility that it is reduced to a signaling function for employment. What breaks my heart is that its own denizens have now come to see job training as its purpose!  What else is there, they ask? Only the very body and soul of human liberty.

Protesting, Police, and the Polis of Aristotle

By Julian Dunraven, J.D., M.P.A.

Really, I just wanted to discuss Aristotle; instead I attended a protest.  It certainly was not my idea; my students requested it.  Apparently, some group had organized yet another protest against police brutality and racism. Laudable goals, I am sure, but I think I do more for the cause by teaching Constitutional Law than by attending protests.  Yet, my students were interested because a colleague of mine was counter protesting on behalf of the police, who she thinks are being treated most unfairly.  I found this notion absurd, but the students wanted to go, and cajoled quite skillfully.

“But Dr. Dunraven,” said they, “doesn’t Aristotle talk about civic virtue and the good of the polis?  Isn’t this protest about just those topics?  And didn’t you say we are studying social justice theories next week?  Wouldn’t this be a good way to see them in action?”

“Besides,” said another, “just last week you made fun of us for being in college but never attending a protest.”

Well there they had me.  What self-respecting college student graduates without ever protesting something?  It’s like graduating without ever writing a research paper: possible but woefully inadequate.  It might even be un-American considering Alexis de Tocqueville’s famous observation of Americans’ remarkable tendency to organize for every conceivable purpose and cause. So, of course, I shrugged and let my troop of hard working, free market, liberty advocates march over to witness their first social justice protest.  They were appalled.

When I arrived at the protest, I found the students already clustered around my colleague, an elegant, petite woman standing alone with a sign thanking police for all they do right.  Facing her was a clearly angry crowd of a hundred or so people.  The protesters were shouting epitaphs at my colleague, calling her a, “white privileged bitch,” who had no right to be there, or even to speak, apparently.  Whenever she would try to reply, they would shout over her, telling her to leave.  The arrival of the students seemed to infuriate them more.  The white students were called rich, privileged, oppressors.  Black and Hispanic students were called white-washed, or sell outs, and told they were far beneath the protesters.  Military veteran students were called murderers.    

The students, to their credit, remained calm and polite, but confessed this was not the type of Aristotelian civic dialogue they had in mind.  Indeed, they said they found no virtue in it at all, and were shocked that people claiming to advocate for social justice, respect, and civil rights could demonstrate such disdain for each of those concepts.  In the face of such hatred, all but one eventually returned to the classroom in disgust at the complete lack of civilized discourse they encountered. 

That left only my fellow professor and a single student, both now resigned to polite silence, to face the verbal assaults of the crowd.  When it became clear they would not be driven away, a couple of activists began circulating through the crowd, and moved the entire protest to the opposite side of the field, claiming that they did not feel safe.  Over 100 shouting people moved because they did not feel safe after trying-- and failing-- to intimidate a 5 foot woman and a first year college student into fleeing. 

The overt hypocrisy of such intolerance only grew in how the crowd treated me.  Upon my arrival, I warmly greeted my colleague and students.  Immediately, the crowd demanded to know who I was.  I politely identified myself, and explained I was also a professor, teaching Constitutional Law.  I stood near my colleague, both of us were dressed quite formally, both appear ethnically European, and both were professors.  No one had any reason to think my opinions differed from hers.  The only difference between us, so far as the crowd knew, was that I was a man and she a woman. Yet, while an angry mob surrounded and shouted at her, when those same people surrounded me, they almost deferentially asked me what I thought of the event. They did not shout, or even make a rude remark. Again, while both my colleague and I looked professional, and we both carried a mantle of authority and expertise as professors, she was treated poorly while I was treated solicitously. I found it hysterically funny that a social justice crowd protesting what they saw as latent racism in police forces would be so blind to their own rather overt sexism in how they tried to shout down and silence the voice of a solitary woman in a position of honor—but not a man.

After returning to the classroom, my students expressed their frustration with the complete lack of civility they encountered.  Many students, much like myself, even sympathized with the ostensible goals of the protesters, but were chagrined at their complete refusal to engage in any meaningful dialogue.  Most reported that, every time they tried to engage, the protesters would simply shout them down with some repetitive phase, be it “oppressor,” or “murderer,” at the instruction of a few lead activists.  As they left, they told me one protestor shouted some incoherent nonsense at them, whereupon an organizing activist ran over to issue a correction.  The chastened protester then shouted, “Yeah, THAT’s what I meant!”  My students said they were not sure if such a display was horrifying or funny, and asked me if such slavish mindlessness was what Aristotle meant when he referred to natural slaves.  I suspect it is.

Aristotle defined a natural slave as someone who was incapable of articulating or reasoning out principles for themselves, but was capable of embracing the principled dictates of others if given sufficient instruction, and thus is not truly free.  Today, we might call this a natural follower.  However, while Aristotle thought this trait to be permanent and inborn, I suspect it is the result of training.  Many of the most viscous protesters were not incapable of intellectualism at all.  Indeed, they turned out to be students of Sociology, and devoted to the teaching of a few of their favored professors.  Unfortunately, modern academia too often forsakes teaching students logical reasoning in favor of teaching them ideological dogma.  Questioning that dogma is quickly derided and punished, while fervent acceptance is held up as virtuous and the very exponent of intelligence.  While this sort of academic training was implemented by the Progressive Movement, and is vital to sustaining it, even many conservatives, tragically, have adopted the process, if with an opposite ideology.  Such dogmatic thinking will always produce slaves, whose chains are reinforced with the vapid level of intellectual discourse running through society, often consisting of no more than a trite platitudinous tweet or a thumbs-up-like to an equally vacuous Facebook post, both echoing dogmas learned by rote.   

The protesters yesterday had real grievances and valid frustrations with their society.  They chose to lay those grievances on the police and demand reparations.  In their refusal to engage in any meaningful dialogue with their opposition, however, they succeeded only in making enemies.  Civil discourse is abandoned as both sides simply try to gather enough numbers to bludgeon the other side into submission—and while such a process may start with verbal bludgeoning, it usually ends in the physical form, for force is all that is left to us when reason fails.

Aristotle posited that the highest good was intellectual reasoned discourse in service to civic virtue.  Yet, thinking and reasoning requires training, and discourse takes a great deal of practice.  Academia is supposed to provide both.  It serves us poorly if it instead trains us only to recite secular dogmas, and shout them repeatedly if challenged in the hope of overwhelming any opposition with noise, exhaustion, or outright force.  It is small wonder our society has become so intractably polarized with such training.  That can only continue to worsen until we can learn to listen to one another, to discourse with one another, and to together struggle to pursue truth through the challenges of reason. 

The 4th Amendment: A Right—Not a Privilege

By Julian Dunraven, J.D., M.P.A.

What is the difference between a right and a privilege? Answering that is a difficult task, for our legal system so often conflates the two concepts. Yet, in the simplest sense, a right is basic liberty intrinsic to being human, while a privilege is granted or purchased from someone else. Legal privileges, or government granted rights, are created, granted, and maintained by government. In this area, you will find your right to drive on public roads with a driver’s license, your rights to attend public schools, and your right to one vote at the age of 18 for government elections—often provided you are not a felon. These are lesser rights, more properly called privileges. Your greater human rights, however, are innate to you just by being. Governments do not create them, and cannot take them away. Governments can only recognize and respect them, or oppress them; in either case these fundamental rights remain absolute regardless of the government. In the United States, some of these greater human rights are expressly enshrined within the Constitution—especially the Bill of Rights and the 14th Amendment.

Within the Bill of Rights, the 4th Amendment is perhaps most foundational to this country’s origin. It expresses a principle we borrowed from our British forbearers, who already held it in great reverence. I think it was best stated by William Pitt, the British Prime Minister, in a now oft quoted speech, just a few years prior to the American Revolution:

"The poorest man may in his cottage bid defiance to all the force of the Crown. It may be frail; its roof may shake; the wind may blow through it; the storms may enter, the rain may enter,—but the King of England cannot enter; all his forces dare not cross the threshold of the ruined tenement!"

Unwisely, the British forgot that brave and noble principle in their management of the colonies, and forced upon them the hated Writs of Assistance and General Warrants. When the colonists finally began to stand up to these dreaded instruments of oppression, as John Adams said, "there the child independence was born." And to ensure such atrocities never again occurred, the founders gave us the 4th Amendment:

“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.”

This sounds very nice. Most people read this and believe themselves secure from government searches, seizures, and arrests unless there is probable cause and a warrant from a court. Unfortunately, most people would be wrong. All the forces of the Republic have proven much more pernicious than all the forces of the Crown, and warrants today are the rare exceptions to law enforcement activity.

Today, law enforcement can look through your phone records, your internet activity, your bank records, your trash, and many of your business operations, all without warrants. Schools or workplaces can offer no protection, and even your own body is open to inspection without warrant. Criminals—whether convicted or merely accused—get no privacy at all, and if you happen to be at an airport or a border crossing, neither do you. Indeed, the searches now conducted by the U.S. national security apparatus are indistinguishable from the General Warrants that led to the Revolution. So what happened to the 4th Amendment?

The problem stems from one little word: unreasonable. Over the years, the Supreme Court has held that the first and second clauses of the amendment are nearly separate. In short, a warrant, requiring probable cause and particularity is only necessary if a search is unreasonable. A reasonable search, according to the Court, does not require a warrant. So what is reasonable or unreasonable? To determine this, the court engages in a balancing test. On one scale it places your expectations of privacy which society is prepared to accept. On the other it places the interests and importance of the state getting the information it wants. This defines your right to privacy under the 4th Amendment—and it is no right at all.

The rights protected by the 4th Amendment are fundamental and innate rights. Yet the Court seeks to balance them against Government interests before it will recognize them. If a right is only recognized if the Government deigns to do so, but is reduced or eliminated whenever the government determines a matter sufficiently important, then it is no right at all. Such sufferance at will reduces a right to a mere privilege. And the government will, ultimately, always find its own interests outweigh individual liberty or privacy. The proof is all around us.

Try imagining a TSA agent telling George Washington to spread his limbs while their scanner took a photo of his nude body for security purposes, or their staff conducted a pat down which, anywhere else, would be called sexual molestation. Or perhaps imagine the reactions of Adams, Franklin, or Jefferson in discovering that anything they submit to another person or business, from email via an ISP, or a monetary deposit via a bank—effectively every record and transaction—is subject to warrantless and constant surveillance. Somehow I doubt they would have much sympathy for the idea that it is all an important state interest for the security of the nation.

The problem is now bad enough that at least one Justice of the Supreme Court, Sonya Sotomayor, has suggested abolishing the doctrine that information turned over to a third party (such as an ISP, bank, or phone service) is fair game. Unfortunately, she bases her argument on the idea that the modern electronic age simply allows for too much information to be snapped up by government watchers. This means only that she dislikes the consequential result of the doctrine laid down by the Court. It is not a principled objection; our rights remain subject to her subjective sense of what is or is not too much government intrusion, and mass traffic stops, random personal frisks, and other arbitrary exercises are at the whim of the justices. There is an alternative, however.

If the 4th Amendment were read as a whole, as it should be, rather than as separate parts, then it becomes clear that all searches and seizures must be supported by individualized probable cause. That being the case, the only reasonable searches or seizures which could take place without a warrant would be those crimes directly observed by law enforcement, or those emergency situations to which someone involved consensually invites law enforcement. Those are about the only instances where probable cause can be established directly by a law enforcement officer, and would thus be reasonable. Anything requiring indirect observation, or the compilation of disparate evidence, would of course require the judicial oversight of a warrant.

I have no doubt that governments at every level would scream that this view of the 4th Amendment would make it much more difficult for them to pursue criminals. They would be right. However, the primary function of government is not to pursue crime, or even establish order. Rather, it is to guarantee liberty: liberty of each individual against other individuals, certainly—but also liberty of the citizens against the government. Only through this holistic view does the 4th Amendment take on the power of an absolute principle—a human right—not a government privilege. Anything less leaves it to the subjective, arbitrary, and evolving preferences of the Justices, always with the heavy thumb of the government weighting the scales. Alas, I doubt this will come to pass anytime soon.

Every time I teach 4th Amendment jurisprudence in my Constitutional Law class, I find it fascinating to watch the students. Inevitably, by the end they will be in frothing rages against the almost total abolition of privacy that has befallen this nation, and demand to know why my class is the first time they are hearing about it. The tragic answer is that only Constitutional Law classes—and few enough of those—are even paying attention.

Unfortunately, few of our citizens guard their constitutional rights as they should. Thus, few even know how impotent the protections of the 4th Amendment have become. Elected leaders actually campaign on proposals that undermine 4th Amendment rights in the name of safety, of efficiency, of getting at bad guys and, above all—of national security. So far, the people have bought it all, happily selling their rights in exchange. And so Natural Rights become mistaken for government granted privileges. Until people remember what a right actually is, acknowledge how much they have lost, and demand it back from their government, nothing will change. Until then, we remain under near total surveillance. Liberty requires constant vigilance, and our people have been asleep.