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WASHINGTON— ''The question we confront today,'' wrote Justice Antonin Scalia in an opinion that places him up there with Louis (the right to be let alone) Brandeis, ''is what limits there are upon this power of technology to shrink the realm of guaranteed privacy.''
Cops in Oregon suspected a man of growing marijuana inside his house. They knew he would have to use high-intensity lamps, so they had this bright idea to place a thermal imaging machine across the street to measure the heat coming through his walls -- enabling them to ''see'' inside the house as if they had X-ray vision.
Unconstitutional, ruled the Supreme Court, in a 5-to-4 decision that crossed all ideological lines. To the lower court that held that the thermal search had revealed no ''intimate'' details, Scalia replied, ''In the home, all details are intimate details.'' He refused to ''leave the homeowner at the mercy of advancing technology,'' bottoming the majority's opinion on the original intent of the framers of the Fourth Amendment prohibiting unreasonable searches.
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The professor had chosen Scalia as the target for privacy invasion because of the Justice’s remarks at a January conference organized by the Institute of American and Talmudic Law. Scalia’s views on the privacy of personal information online are summed up nicely by this quote:
“Every single datum about my life is private? That’s silly,” Scalia [said].
(And his views are summed up at greater length here by privacy expert and GW Law Professor Dan Solove.)
Professor Joel Reidenberg and his class now have a 15-page dossier on Scalia, including his home address, the value of his home, his home phone number, the movies he likes, his food preferences, his wife’s personal e-mail address, and “photos of his lovely grandchildren.”
We checked in with the Justice to see how he felt about his online information being aggregated and mined by the professor and his 15 students.
Scalia was far from pleased (though we were pleased that a Supreme Court Justice would honor Above The Law with a response). Check out his reply to us, after the jump.
Here is Justice Scalia’s response, in all its scathing glory:
I stand by my remark at the Institute of American and Talmudic Law conference that it is silly to think that every single datum about my life is private. I was referring, of course, to whether every single datum about my life deserves privacy protection in law.
It is not a rare phenomenon that what is legal may also be quite irresponsible. That appears in the First Amendment context all the time. What can be said often should not be said. Prof. Reidenberg’s exercise is an example of perfectly legal, abominably poor judgment. Since he was not teaching a course in judgment, I presume he felt no responsibility to display any.
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When Breyer interjected that Sandra Day O’Connor’s decision in a recent affirmative action case reflected the concerns that businesses, the military, labor unions and universities had in being unable to make good decisions under the current law, Scalia responded, “We’re not here to make a happier society. We’re here to determine what the people were thinking when the 14th Amendment was ratified.”
“The fight is about the Supreme Court inventing new rights nobody ever thought existed,” said Scalia. “Right to abortion? Come on! Nobody thought it violated anything in the Constitution for 200 years. It was criminal.” The same was true of homosexual sodomy, he added. (The Court has struck down state laws that banned both abortion and sodomy.)
For example, in Roe v Wade, a “right to privacy” was invented by the Court. In a dissenting opinion, Justice Potter Stewart noted that "no such general right of privacy" can be found in the express language of "the Bill of Rights" or "any other part of the Constitution."
Scalia went on to point out that if “the Constitution will mean whatever the [majority] of the American people want it to mean, [then] that is not what a Constitution is for. The whole purpose of a Constitution is to constrain the desires of the current society.”
“Originalism”, which is Scalia’s approach, results in finding many of the answers the Court seeks, while Breyer’s approach consists of playing it by ear, and looking up at the ceiling for those answers. This, Scalia said, “yields no answers”.
The trouble with an evolving Constitution, according to Scalia, is that society would be adhering, not to the ideals of the Founders, but instead to the ideals of a revolving group of nine people sitting on the Supreme Court bench.
Scalia pointed out that if the 14th Amendment had a footnote indicating that the meaning of the phrase “equal protection of the laws” would be whatever the Supreme Court decided at the time, the American people would never have voted for it.
Breyer responded that such an approach would make the Constitution too confining and restrictive, too rigid and inflexible, that people won’t be “able to live under it.”
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