While the rumors that Socratails invented the idea of debate are not entirely true, squirrels do enjoy debating. That may be why Regis enjoys the long scene at the end of Act One in The Gardener’s Lament, where he and the Gardener debate the pros and cons of foraging vs. agriculture. Regis’ character, a squirrel, is a forager. The Gardener is, of course, an agriculturalist. So they have different perspectives on who has what rights to the vegetables. Their debate shows the audience both points of view, and sets up the twists in Act Two. But I won’t spoil the ending.
Anyway, squirrels enjoy debating, and this is where you expect me to link Regis’ experience to the Republican presidential candidates’ debate last night. It was right here in South Blogistan, so you may think BPI sent me down to cover it. But that didn’t work so well last time and Chef and Mrs. Squirrel are pleased with my diet plan, so I the Faculty Senate let me stay home and spend the evening playing Shoots and Branches with the toddlers, Nancy and Michelle.
So this isn’t about the Republican presidential candidates’ debate. Sorry.
Instead, it’s about the U.S. Supreme Court decision yesterday in United States v. Jones, and whether the issues in that case should ever have been the topic of a legal debate. First the case itself.
Back in 2004, a joint FBI-D.C. Police task force began to suspect Antoine Jones may have been involved in drug trafficking. They asked a D.C. court for a warrant to install a GPS tracker in Jones’ car, and the court issued a warrant allowing them to install the device within ten days, and within the District. Eleven days later, the task force installed the tracker in Jones’ car, in Maryland. That was a day late and not within the jurisdiction specified in the warrant. Over the next 28 days, the task force gathered over 2000 pages of data from the tracker. Based in part on that data, Jones was indicted on drug trafficking charges, and ultimately convicted. Jones appealed on grounds that the tracking device was not installed under the terms of the warrant, and that installing a GPS tracking device in his car – without a warrant – violated his Fourth Amendment rights against “unreasonable search and seizure.”
The Court agreed, although different Justices offered different reasons. Justice Scalia wrote the Court’s opinion, joined by Chief Justice Roberts and Justices Kennedy, Thomas, and Sotomayor. This opinion did not consider whether Jones had a reasonable expectation of privacy from electronic tracking, and instead conclude that the task force trespassed on Jones’ property by installing the tracker outside the time and place limits of the warrant.
Justice Sotomayor also wrote a separate opinion arguing the Court should have considered the reasonable expectation of privacy issue, and asking whether that would exist had the government obtained similar tracking data without direct contact with Jones’s property, such as from his cell phone provider.
Justice Alito, joined by Justices Ginsburg, Breyer, and Kagan also concurred in the result, but again said the Court should have ruled on whether Jones had a reasonable expectation of privacy when the task force tracked him for 28 days, based on the long-term nature of the surveillance.
In short, all nine Justices agreed that the task force violated Jones’ Fourth Amendment rights, but the three opinions debated the details of how and why. Those details matter. Police, prosecutors, defense attorneys, and judges rely on those details to handle similar cases in the future.
The Court’s disagreement evoked a comment that everyone involved “need[s] to RE-READ or READ the Constitution and all the amendments in order to understand, without a doubt, what was put forth in that document for ALL of us to abide by,” and that “the Constitution leaves, what should be, no room for debate.”
If only it were that simple. Here is the complete text of the Fourth 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.
The Fourth Amendment does not protect us from all searches and seizures. It protects us from “unreasonable searches and seizures.” But what is “unreasonable?” Well, there’s “room for debate.” And while the Fourth Amendment explains how to obtain a valid search warrant, it does not specify whether or when a search warrant is necessary. Again, that leaves “room for debate.”
The Constitution is not holy writ, nor a statement of philosophy. The Constitution is a body of law, and law exists to help us resolve disputes more predictably and more reasonably than the alternatives: bribery, brute force, or autocratic whim. Debate does not diminish that process. Debate is the core of that process.
All nine Justices agreed that placing a GPS tracker under Jones’ car and gathering data for 28 days was an “unreasonable search.” They debated why and, more important, they detailed that debate publicly in their opinions. Police, prosecutors, defense attorneys, and other judges can now read that debate and use it to decide how to handle similar cases in the future. Members of Congress can also read that debate, and debate among themselves whether to write a statute to clarify when and how police can gather electronic tracking data. And we citizens can read the Supreme Court debate, and debate each other and write to our elected officials to express our own opinions.
The ambiguities of the Constitution’s language guarantee the need for debate, and the First, Fifth, and Sixth Amendments guarantee our rights to debate, in the press and in our courts. If there’s one thing the Constitution is crystal clear on … it’s “room for debate.”
Socratails would be proud.
Good day and good nuts.