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On Behalf of | Oct 17, 2017 | Firm News

In 1513 Albrecht Dürer etched the brilliant “Ritter, Tod, und Teufel” or Knight, Death and the Devil called simply the Reuter (Rider) by Dürer.  Riding steadfastly through a dark Nordic gorge, Dürer’s knight rides past Death on a Pale Horse, who holds out an hourglass as a reminder of life’s brevity, and is followed closely behind by a pig-snouted Devil. The foxtail speared on the knight’s lance and kept behind him stands for the knight’s strength to fight off lies, while the dog running alongside represents veracity and loyalty.  As the embodiment of moral virtue, the rider—modeled on the tradition of heroic equestrian portraits with which Dürer was familiar from Italy—is undistracted and true to his mission.  The rider moves through the scene ignoring or looking away from the creatures lurking around him. He appears to be almost contemptuous of the threats, and is often seen to be a symbol of courage. The Rider has the courage to be alone and independent.

Like the Knight, our Founding Fathers had the courage to leave the protection of England and form a new independent nation.  Like Dürer, they valued independence and the right to be free: the right to be let alone.  The Founders valued the right to be alone so much that they incorporated this fundamental right into the Constitution.The Supreme Court has labeled “fundamental” those rights which are “implicit in the concept of ordered liberty.” Palko v. Connecticut, 302 U.S. 319, 325 (1937).  Although the precise scope of this definition has never been determined, see Adamson v. California, 332 U.S. 46, 53-55 (1947), it is certain that some rights not explicitly named in the Constitution are nonetheless protected. See, e.g., Roe v. Wade, 410 U.S. 113 (1973).

In 1927 Chief Justice William Taft wrote in Olmstead v. United States that the government did not violate the Fourth Amendment to the Constitution by wiretapping a person’s telephone calls.  Fortunately, there was a far greater intellect on the Supreme Court at the time by the name of Justice Louis Brandeis.  He wrote an influential dissent that was the foundation for future court decisions. Repudiating the majority’s cramped textual analysis, Brandeis made a plea for what is now often referred to as “living constitutionalism,” explaining: “Clauses guaranteeing to the individual protection against specific abuses of power, must have a similar capacity of adaptation to a changing world.” The proper methodology for construing the Fourth Amendment, urged Brandeis, was not an approach of “unduly literal construction,” but rather one that reasoned by analogy and sought to effect the underlying general purpose of the Amendment.  The proper analogy for wiretapping, argued Brandeis, was the opening of a sealed letter in the mail, a practice that the Court had ruled unconstitutional.

Looking backward, Brandeis observed that at the time of the adoption of the Fourth Amendment, “‘the form that evil had theretofore taken,’ had been necessarily simple.”  Seizures took place “by breaking and entry.” But more modern times gave the government “[s]ubtler and more far-reaching means of invading privacy. . . .”  And electronic eavesdropping was only the beginning, warned Brandeis: “The progress of science in furnishing the government with means of espionage is not likely to stop with wiretapping.” Brandeis asked, rhetorically, “Can it be that the Constitution affords no protection against such invasions of individual security?”

Brandeis attacked the proposition that the government had the power to wiretap phones without warrant, arguing that there is no difference between listening to a phone call and reading a sealed letter. Brandeis argued that the Founders had “conferred against the government, the right to be let alone – the most comprehensive of rights and the right most favored by civilized men.”  Justice Brandeis’ words echoed the dissent in the court below written by Judge Frank A. Rudkin. If “ills” such as state-sanctioned illegal wiretapping were constitutionally permissible, Rudkin proclaimed dramatically, “our forefathers signally failed in their desire to ordain and establish a government to secure the blessings of liberty to themselves and their posterity.”  The 1967 Katz v. U.S. case overturned the Olmstead ruling, holding that warrants were in fact required to wiretap payphones, with Brandeis’s dissent held as a primary influence. Its description of the reasonable expectation of privacy citizens have has been enshrined in law and constitutional interpretation, and has implications for a range of issues, from abortion rights to the freedom of the press.

Today, that provision’s protection against “unreasonable searches and seizures” provides a vital check on executive power to spy on us without a warrant. From bugging civil rights activists in the to examining individuals’ internet activity under the USA Patriot Act, the executive branch has repeatedly tried to extend the boundaries of its power and shrink our perimeter of fundamental right to privacy.  We must be as Dürer’s knight and have the courage to ride against these attacks against our fundamental right to be let alone.