William C. Heffernan

Two Approaches to Police Ethics

Two kinds ofproblems are encountered in police ethics, and different approaches are neededfor each. The first set of issues centers around integrity: taking bribes, giving perjured testimony, or inflicting serious harm on suspects through use of illegalforce. These are instances of obvious misconduct. For that reason, the approach police officers need is not ethical analysis (in most cases, that would be superfluous) but instead one thatfocuses on creating in officers the disposition to do what is right. By contrast, the second set involves hard choices in law enforcement, with ethical analysis thus needed to supplement our uncertain judgments of right and wrong. Furthermore, analysis can also help pre-service criminal justice students acquire the skills needed to make informed judgments of their own about the hard choices they will later encounter as police officers. Both approaches can be expected to play important roles in the education ofpolicepersonnel as law enforcement continues its development towardprofessional maturity.

Addressing Issues of Justice (and Injustice) in Criminal Justice Education

Although they use the term “justice” for purposes of self-definition, undergraduate criminal justice courses rarely examine the concept of justice in a systematic way. This paper documents justice’s status as a curricular afterthought in criminal justice course offerings. It also proposes ways to remedy the deficiency it identifies.

Chapter 1: Constitutional Afterthoughts

To understand how privacy became a component of modern constitutional doctrine, it’s essential to consider two issues related to interpretation of the text—the framers’ conception of it as a plan of government and their openness to interpretive supplementation of its terms. Numerous Federalist essays characterize the Constitution as a plan of government. Dictionaries of the time distinguished between two different senses of the word plan. On the one hand, they refer to it as plans as draughts—i.e., as precise frameworks (of the kind architects draw when designing buildings). On the other hand, they refer to it as plans as schemes—as relatively loose frameworks that are susceptible to interpretative supplementation in light of developments not anticipated at the outset. There is no doubt that Jefferson and some other members of the founding generation endorsed the former conception of the Constitution. But there is also no doubt that Jefferson accepted interpretive supplementation once he became president, for even though he stated that he wanted to sponsor a constitutional amendment to legitimate the Louisiana Purchase, Jefferson justified the purchase on the ground that the text supports national expansion (its silence on the issue notwithstanding). Madison was even more open to interpretive supplementation. Although he initially opposed legislation creating a national bank, he ultimately reversed himself on this issue and signed the legislation, while serving as president, extending the bank’s charter. Madison’s rationale for signing the legislation set a precedent in favor of interpretive supplementation. It also serves as a criterion for assessing the legitimacy of an interpretive initiative undertaken in the absence of Article V authorization. If supplementation is consistent with the general purposes of government and supported by an enduring supermajority national consensus, then it is acceptable to bypass the amendment process and to settle instead for an interpretation that assesses the legitimacy of government action. This Madisonian framework for assessing the legitimacy of interpretive supplementation is employed throughout the book to assess—and, in most instances—to justify pro-privacy decisions reached by the modern Court.

Chapter 7: From Thoughts and Beliefs to Emotions and Sensations: Brandeis on the Right to Be Let Alone

Though an afterthought at the time of the founding, privacy became an integral part of doctrine by virtue of Boyd. The occasional nineteenth-century references to privacy in United States Reports gave way, by the early twentieth century, to multiple comments on the Constitution’s solicitude for privacy, each comment dependent in one way or another on Boyd’s gloss on the text. Even in the early twentieth century, however, privacy remained a derivative concept in constitutional law. Only when there is an incursion (i.e., a trespass) on tangible property, the Court consistently held, can someone assert a Fourth Amendment claim bearing on privacy. But with Boyd having suggested that the Constitution protects the privacies of life, early twentieth-century justices sought to sever the case’s comment from its roots in property law. The most important attempt at severance is to be found in Justice Brandeis’s dissent in the 1928 case of Olmstead v. United States. The framers of the Constitution, Brandeis asserted in the dissent, sought to protect “the right to be let alone,” a right that protects each person in his beliefs, thoughts, emotions, and sensations, Brandeis added. Needless to say, Brandeis rewrote history in making this claim. Nonetheless, it’s clear that his right to be let alone heralds the possibility of comprehensive privacy protection under the Constitution—protection that can include an interest in seclusion, in informational control, and in the autonomous conduct of personal life. The Brandeis dissent thus anticipates the modern system of privacy rights that emerged in late twentieth-century cases.

Chapter 4: From Property to Privacy: The Eighteenth Century Background

The word privacy appears only once in The Federalist. In the 69th essay, Hamilton uses it to refer to the setting in which New York State politicians make clandestine political deals. Hamilton’s privacy has only a modest connection to modern usage. It is significant, though, because it underscores the founding generation’s equivocal commitment to the concept. The framers weren’t hostile to privacy. But because their core commitment was to republicanism, they reasoned in terms of a conception of freedom that gave higher priority to public participation in the polity than it did to cultivation of personal life. To account for privacy’s enhanced prestige, one therefore has to rely on a genealogy of constitutional rights—on a narrative that traces privacy from its original role as an afterthought in American political discourse to its current role as a central component of individual liberty. In particular, a genealogy has to focus on the emergence of privacy rights from the shell of explicitly protected property rights. This chapter inaugurates the needed genealogy by examining Madison’s 1792 essay on property. In its “larger and juster sense,” Madison writes, the term property refers to all rights an individual can properly claim as his own in that they leave others to a like advantage. Madison, it’s important to note, didn’t identify privacy as a component of this “larger and juster sense” of property. But the very fact that privacy, like property, rights hinge on exclusionary practices indicates the potential for an unfolding genealogy of privacy rights in American constitutional thought.

Chapter 10: Unobtrusive Supplementation: Katz, Whalen, and the New Era of Informational Privacy

The term informational privacy doesn’t make an appearance in a Supreme Court opinion until the early twenty-first century. In looking back, one can readily discern its relevance to early cases, even to those decided in the eighteenth century. To employ the term to talk about the Bill of Rights, however, is to engage in conceptual anachronism, for although informational privacy is pertinent to the words of the Fourth Amendment—i.e., persons, houses, papers, and effects—it’s pertinent as well to non-tangible data whose existence the framers couldn’t have anticipated (and that early twentieth-century judicial opinions assumed to be constitutionally unprotected). In this chapter and those that follow, we consider the doctrinal framework created by the Court’s mid-twentieth-century opinions. Privacy now looms as a category important in itself—indeed, as a category more important in some respects than the category (property) from which it emerged. This chapter examines the approach to interpretive supplementation employed in late twentieth-century cases that have made informational privacy a critically important category in modern constitutional law.

Chapter 9: Ambitious Supplementation: Griswold on Penumbral Emanations from the Bill of Rights

The modern system of privacy rights originated in Court decisions of the 1960s. Brandeis’s Olmstead dissent anticipated the possibility of a comprehensive system, but three and a half decades were to pass before the Court concluded that privacy should be protected independently of property rights. Two cases were essential to this new development: Griswold v. Connecticut, decided in 1965, and Katz v. United States, decided in 1967. Griswold and Katz are less than fully harmonious. But even though an effort is required to integrate the cases, it’s reasonable to speak of a coherent system of privacy rights, one that relies, albeit implicitly, on Brandeis’s 1928 dissent. This chapter examines the overall structure of the modern system of privacy rights. It emphasizes in particular the extent to which the Bill of Rights has been reshuffled to justify the rights announced. The public liberties established in amendments one to eight haven’t been discarded. Rather, new rights have been derived from the thin intimations of privacy discernible in the eighteenth-century text.

Chapter 3: Developmental Supplementation

The extended Madisonian framework can be used to justify two kinds of exercises in rights supplementation—those the framers might have approved and those they might have rejected. This latter category is particularly pertinent to privacy rights. It’s highly unlikely the framing generation would have accepted the constitutional legitimacy of, say, a right to engage in consensual sodomy or a right to engage in same-sex marriage. This might be taken as a decisive argument against the legitimacy of many privacy decisions. But a counterexample also has to be considered. It’s also unlikely that the framers of the Fourteenth Amendment would have accepted the legitimacy of court-ordered racial integration of District of Columbia public schools, for the same Congress that approved the Fourteenth Amendment also adopted legislation mandating racial segregation of Washington’s public schools. The Court’s decision in Bolling v. Sharpe, the 1954 companion case to Brown v. Board of Education, nonetheless ordered integration of Washington’s schools. Because it’s clear that Bolling departed from original understandings of the Constitution, it can be classified as an exercise in developmental supplementation. Furthermore, although Bolling is incompatible with original understandings of the text, it can be justified in light of the extended Madisonian framework, for while racial segregation of public education was the national norm during the nineteenth century by the mid-twentieth century, when Brown and Bolling were decided, the pattern of state legislation indicated that racial integration was supported by a supermajority consensus. Thus Bolling serves as a model for the developmental supplementation decisions reached in late twentieth- and early twenty-first-century privacy cases.

Chapter 11: Informational Privacy Imperiled: Protecting Core Elements of Personal Control while Insuring Public Safety

The Court’s Katz opinion notwithstanding, informational privacy is on life support, not only in everyday life but also in constitutional law. “You have zero privacy anyway,” Scott McNealy, CEO of Sun Microsystems, remarked in 1999, “get used to it.” McNealy overstates the case—but his exaggeration is well worth bearing in mind. In the years following McNealy’s comment, it was revealed that the federal government embarked on a program, code-named Operation Stellarwind, which monitored without warrant millions of messages sent overseas. Even after Congress placed limits on this, the federal government continued to monitor—in most cases, subject to statutory authorization—the phone numbers people dial and the email addresses to which they send messages. Late twentieth-century Supreme Court decisions permitted this (though no decision permitted Stellarwind’s practices). As far as constitutional protection for informational privacy is concerned, then, the central question is whether the Court will build on the foundation established in Katz v. United States to protect individuals from the sophisticated technology the government now employs to monitor behavior. The Court must do so while mindful of the genuine threat posed by terrorist organizations. Recently decided cases indicate that a majority of the Court is aware of the need to strike a balance between the public’s interest in national security and each individual’s interest in informational privacy. The chapter outlines a forbearance model of protection for informational privacy that will make it possible to strike this delicate balance.

Chapter 8: An Exercise in Supplementation That Failed: The Rise and Fall of Freedom of Contract

Should the right to be let alone be interpreted as a shield against government interference with economic liberty? Or should it be limited solely to “thoughts, beliefs, emotions, and sensations”? There is no doubt Brandeis proposed in the latter sense—i.e., there is no doubt that he conceived of it as a shield for the emotional side of personal life but not for economic freedom. But why should Brandeis’s preference be treated as dispositive? If interpretive supplementation is justified on behalf of the emotional side of personal life, why isn’t it justified as well for claims to economic freedom—for freedom of contract claims, in particular? This chapter relies on the extended Madisonian framework to explain why interpretive supplementation would not be appropriate for claims of economic freedom. The reason for this is to be found in the course of American history. Although abolitionism intimated the possibility of a national commitment to freedom of contract, the nation’s strongly negative reaction to judicial opinions issued in the early twentieth century that sought to extend principles of freedom of contract to labor relations—Lochner v. New York, a 1905 case, is the pre-eminent example—established that there was no supermajority consensus in favor of a robust right in this context. The Court has thus properly adhered to the extended Madisonian framework by refraining from interpretive supplementation on behalf of economic freedom while engaging in supplementation on behalf of privacy rights.