A 'gradual depreciation' of rights

Mark J. Fitzgibbons
Justice Joseph McKenna's dissent in a 1911 Supreme Court case, Wilson v. United States, is a forewarning of the process by which government has gradually chipped away at constitutional rights, and how the judicial branch allowed that to happen.

So often case law compounds erosion of constitutional rights by citing to prior case law, but using the wrong logic or reaching just slightly deviated conclusions from the limited meaning of the cases cited.

Like photocopies of photocopies, the end result is a blurred view of constitutional rights and protections that are but meager representations of their original meanings. Justice McKenna called this a "doubled distilled and treble refined sentimentaility."

Justice McKenna was no great jurist, but his dissent in a decision about the 5th Amendment privilege against self incrimination seems quite relevant in these days of "grope and change" and a so-called "living Constitution."

"And the constitutional protection is not measured by the effect, great or small, on the prosecution. It may be invoked even though the prosecution may be defeated. It is the contemplation of the provision of the Constitution that such may be the result, and that it is less evil than requiring a person to aid in his conviction of crime.

"Neither plausible arguments therefore nor considerations of expediency should prevail against or limit a principle deemed important enough to be made constitutional. Such a principle should be adhered to firmly. It is said in Boyd v. United States, that ‘constitutional provisions for the security of person and property should be liberally construed. A close and literal construction deprives them of half their efficacy, and leads to gradual depreciation of the right, as if it consisted more in sound than in substance. It is the duty of courts to be watchful for the constitutional rights of the citizen, and against any stealthy encroachments thereon. Their motto should be obsta principiis.'

"Indeed, eminent legal names may be cited in criticism, if not ridicule, of the policy expressed by the Fifth Amendment, that is, the policy of protection against self-crimination. It is declared to have no logical relation to the abuses that are said to sustain it, and that the pretense for it, so far as based on hardship, is called an ‘old woman's reason' (also a ‘lawyer's reason') and a ‘double distilled and treble refined sentimentality.'

"If the Government had no other concern, short-cuts to conviction would be justified and commendable in proportion to their shortness. The general warrants which [the defendant] resisted were such a cut; so were writs of assistance issued in Colonial times. Their inducement was the detection of crime, and yet popular rights were vindicated in the resistance to the first, and the child Independence was born' by resistance to the second.

"I will not pause to vindicate the privilege of the Fifth Amendment against considerations of expediency, nor to inquire whether it is a well reasoned principle, one logically following from abuses, properly adapted to the facts of life when it was adopted, or if so then, not now. It has passed from polemics, and has secured the sanction of constitutional law. Courts cannot change it, or add to it or take from it to suit the ‘condition of modern civilization,' as it was suggested in a case submitted with this.

"It is as vital now as when ordained, and is not uncertain. It is plain and direct as to the source of criminating evidence. The accused person cannot be made the source. What Lord Camden denominated ‘an argument of utility' should not prevail now, as it did not in Westminster Hall when he pronounced his great judgment against general warrants. Indeed, English courts, as I have shown, have never wavered nor felt constrained by the demands of criminal justice to depart from or qualify in any way the strength of the privilege. Is it possible that a written constitution is more flexible in its adaptations than an unwritten one, and that the spirit of English liberty is firmer or more consistent than that of American liberty, or discerns more clearly the danger of relaxing the strictness of any of the guarantees of personal rights?

"A limitation by construction of any of the constitutional securities for personal liberty is to be deprecated. A people may grow careless and overlook at what cost and through what travail they acquired even the least of their liberties.

"The process of deterioration is simple. It may even be conceived to be advancement, and that intelligent self-government can be trusted to adapt itself to occasion, not needing the fetters of a predetermined rule.

"It may come to be considered that a constitution is the cradle of infancy, that a nation grown up may boldly advance in confident security against the abuses of power, and that passion will not sway more than reason. But what of the end when the lessons of history are ignored, when the barriers erected by wisdom gathered from experience are weakened or destroyed? And weakened or destroyed they may be when interest and desire feel their restraint.

"What then of the end; will history repeat itself? And this is not a cry of alarm. ‘Obsta principiis' was the warning of Mr. Justice Bradley in Boyd v. United States against the attempt of the Government to break down the constitutional privilege of the citizen by attempting to exact from him evidence of fraud against the customs laws. I repeat the warning. The present case is another attempt of the same kind, and should be treated in the same way."

See also: Just Don't Fly: Where Might the TSA Take Us Next?
Justice Joseph McKenna's dissent in a 1911 Supreme Court case, Wilson v. United States, is a forewarning of the process by which government has gradually chipped away at constitutional rights, and how the judicial branch allowed that to happen.

So often case law compounds erosion of constitutional rights by citing to prior case law, but using the wrong logic or reaching just slightly deviated conclusions from the limited meaning of the cases cited.

Like photocopies of photocopies, the end result is a blurred view of constitutional rights and protections that are but meager representations of their original meanings. Justice McKenna called this a "doubled distilled and treble refined sentimentaility."

Justice McKenna was no great jurist, but his dissent in a decision about the 5th Amendment privilege against self incrimination seems quite relevant in these days of "grope and change" and a so-called "living Constitution."

"And the constitutional protection is not measured by the effect, great or small, on the prosecution. It may be invoked even though the prosecution may be defeated. It is the contemplation of the provision of the Constitution that such may be the result, and that it is less evil than requiring a person to aid in his conviction of crime.

"Neither plausible arguments therefore nor considerations of expediency should prevail against or limit a principle deemed important enough to be made constitutional. Such a principle should be adhered to firmly. It is said in Boyd v. United States, that ‘constitutional provisions for the security of person and property should be liberally construed. A close and literal construction deprives them of half their efficacy, and leads to gradual depreciation of the right, as if it consisted more in sound than in substance. It is the duty of courts to be watchful for the constitutional rights of the citizen, and against any stealthy encroachments thereon. Their motto should be obsta principiis.'

"Indeed, eminent legal names may be cited in criticism, if not ridicule, of the policy expressed by the Fifth Amendment, that is, the policy of protection against self-crimination. It is declared to have no logical relation to the abuses that are said to sustain it, and that the pretense for it, so far as based on hardship, is called an ‘old woman's reason' (also a ‘lawyer's reason') and a ‘double distilled and treble refined sentimentality.'

"If the Government had no other concern, short-cuts to conviction would be justified and commendable in proportion to their shortness. The general warrants which [the defendant] resisted were such a cut; so were writs of assistance issued in Colonial times. Their inducement was the detection of crime, and yet popular rights were vindicated in the resistance to the first, and the child Independence was born' by resistance to the second.

"I will not pause to vindicate the privilege of the Fifth Amendment against considerations of expediency, nor to inquire whether it is a well reasoned principle, one logically following from abuses, properly adapted to the facts of life when it was adopted, or if so then, not now. It has passed from polemics, and has secured the sanction of constitutional law. Courts cannot change it, or add to it or take from it to suit the ‘condition of modern civilization,' as it was suggested in a case submitted with this.

"It is as vital now as when ordained, and is not uncertain. It is plain and direct as to the source of criminating evidence. The accused person cannot be made the source. What Lord Camden denominated ‘an argument of utility' should not prevail now, as it did not in Westminster Hall when he pronounced his great judgment against general warrants. Indeed, English courts, as I have shown, have never wavered nor felt constrained by the demands of criminal justice to depart from or qualify in any way the strength of the privilege. Is it possible that a written constitution is more flexible in its adaptations than an unwritten one, and that the spirit of English liberty is firmer or more consistent than that of American liberty, or discerns more clearly the danger of relaxing the strictness of any of the guarantees of personal rights?

"A limitation by construction of any of the constitutional securities for personal liberty is to be deprecated. A people may grow careless and overlook at what cost and through what travail they acquired even the least of their liberties.

"The process of deterioration is simple. It may even be conceived to be advancement, and that intelligent self-government can be trusted to adapt itself to occasion, not needing the fetters of a predetermined rule.

"It may come to be considered that a constitution is the cradle of infancy, that a nation grown up may boldly advance in confident security against the abuses of power, and that passion will not sway more than reason. But what of the end when the lessons of history are ignored, when the barriers erected by wisdom gathered from experience are weakened or destroyed? And weakened or destroyed they may be when interest and desire feel their restraint.

"What then of the end; will history repeat itself? And this is not a cry of alarm. ‘Obsta principiis' was the warning of Mr. Justice Bradley in Boyd v. United States against the attempt of the Government to break down the constitutional privilege of the citizen by attempting to exact from him evidence of fraud against the customs laws. I repeat the warning. The present case is another attempt of the same kind, and should be treated in the same way."

See also: Just Don't Fly: Where Might the TSA Take Us Next?