On Monday, January 23rd, the Supreme Court unanimously ruled that attaching a GPS device to a suspect’s car counts as a search, and therefore requires a warrant (Read the majority opinion here). As a consequence of this ruling, the conviction of Antoine Jones, for drug trafficking, was overturned. The primary rationale for this ruling was found in the Fourth Amendment, which protects the “right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures.” Because Jones’s vehicle counts as property, it is protected against searches and seizures, including the attachment of a GPS device.
Here’s my concern. Clearly, we don’t want government officials to be able to secure convictions by whatever means will make this possible. The whole point of the Bill of Rights is to give citizens some protections against government intrusion into their personal lives. But here’s the thing: Antoine Jones really was guilty of drug trafficking, and now he’s going to go free. Let’s set aside, for the moment, the question of whether drug use is morally bad, or whether it should be illegal. For now, drug trafficking is illegal, and I think a case can be made that even if we ought not punish drug users, we ought to penalize drug trafficking and distribution. Am I the only one who is bothered by the fact that a guilty man went free on the basis of a right to his personal property?
Let’s consider this case counter-factually. Suppose Jones was not guilty of these charges, and the GPS tracking device revealed that he was not involved in any drug trafficking operations. As a result, the investigating agency removes the device, without his knowledge, and no one ever finds out that the device was attached. Jones suffers no loss of any sort, and he is not harmed in any way by this activity. Why is this a problem? Rights are supposed to protect people from harm, and the only reason Jones was harmed by a violation of his property rights is because he was engaged in illegal activity. My suggestion is just that in cases where an individual is harmed by a rights violation only because he is doing something that is illegal or morally wrong, we might consider trading the rights violation for the prevention of the greater harm. This sounds highly plausible when we also factor in the fact that the rights violation causes no harm to the individual in cases where he is not guilty. In the absence of wrongdoing, the individual never knows his rights have been violated at all.
There are many responses one could give to my concern, but I’ll leave those replies to all of you, to be given as comments. The point here is just that in all of our grandstanding and fist-pounding about rights, we should also consider the consequences of protecting those rights universally, and perhaps pursue more nuanced approaches that allow for the protection of individual rights without facilitating criminal activity that leads to massive social harms. Protecting individual rights need not entail letting criminals go free, and when it does, perhaps we should consider sacrificing some of those rights for the sake of the greater goods that result.
About the Author
Elijah Weber is a graduate student at Bowling Green State University. He holds a Master's degree in philosophy from Colorado State University, and Bachelor’s degrees in sociology and philosophy from Chapman Univerity. He currently lives in Ann Arbor, Michigan with his wife Laura, his son Brandon, age two and a half, and two cats, both of whom are mentally deranged.
4 responses so far ↓
1 protocoach // Jan 25, 2012 at 10:53 am
“Am I the only one who is bothered by the fact that a guilty man went free on the basis of a right to his personal property?”
Yes. The good achieved by violating this man’s rights (arresting a single drug trafficker) is vastly outweighed by the good achieved by protecting his rights. This is a Supreme Court case. The verdict becomes the law of the land. Protecting the personal rights of 330 million people to be secure in “their persons, houses, papers, and effects, against unreasonable searches and seizures” is vastly more important than punishing a single drug trafficker, especially since he is now prominently on police radar and will almost certainly find it functionally impossible to further his drug-selling career.
“Rights are supposed to protect people from harm, and the only reason Jones was harmed by a violation of his property rights is because he was engaged in illegal activity. My suggestion is just that in cases where an individual is harmed by a rights violation only because he is doing something that is illegal or morally wrong, we might consider trading the rights violation for the prevention of the greater harm. This sounds highly plausible when we also factor in the fact that the rights violation causes no harm to the individual in cases where he is not guilty. In the absence of wrongdoing, the individual never knows his rights have been violated at all.”
This is a textbook example of “only the guilty need fear the police state” thinking. We protect the rights of even the lowest members of society because that’s the only way to protect the rights of everyone in a society. Once you’ve said that rights can be abrogated for certain classes of people, you have effectively given away all rights for everyone. If there’s a moral justification for taking away the rights of people who may be committing crimes, there’s a moral justification for taking away the rights of everyone. After all, you could go out tomorrow and deal drugs, commit murder, burn down a building. Why shouldn’t the police have you under constant surveillance to prevent you from doing those things? Why shouldn’t they have everyone under constant surveillance?
“The point here is just that in all of our grandstanding and fist-pounding about rights, we should also consider the consequences of protecting those rights universally, and perhaps pursue more nuanced approaches that allow for the protection of individual rights without facilitating criminal activity that leads to massive social harms.”
Grandstanding and fistpounding? You’re deliberately opening the argument by framing people who think that protecting the rights of 330 million people is more important than sending a single drug trafficker to jail as hysterical or insincere, then simply ignoring the massive social harm that would be caused by removing those rights to focus on the dramatically smaller social harm that one drug trafficker going free represents.
And this is before we even get into the fact that he would have been convicted if the police had simply done their job correctly, rather than violating the Constitution, and also before we even bring up the point that this wouldn’t be a problem if our nation wasn’t acting incredibly immorally, wasting billions of dollars perpetuating a failed Drug War that’s targeted at minorities, with the effect of creating a perpetual underclass of convicts and former convicts.
This was embarrassingly poorly thought through.
2 Elijah Weber // Jan 25, 2012 at 11:20 am
Well, I thank you for your reply, even though we clearly disagree. Just to clarify, I’m not saying the Supreme Court got it wrong. All I’m saying is that this is a bit troubling, that a guilty person went free on the basis of a right to property. I made a point of stating that we clearly don’t want to allow investigating agencies to pursue any means available to them in order to achieve convictions, so I’m not advocating anything like the “constant surveillance” position that you suggest my view implies. This is a strawman of my stated position on this case.
What I am suggesting is simply that there might be a sensible middle ground whereby a person’s right to her property is protected, but where rights don’t become a means for individuals to harm others through illicit activities like drug trafficking, or something much worse. Mill stated, and I think he’s right, that we can limit a person’s freedoms for the sake of preventing harm to others. This is a guiding principle of our legal system, and I’m merely suggesting that this case might be a good place to invoke such a principle. When we become universalists about rights, we miss an important feature of our ethical lives, namely that context and circumstances make a big difference.
Consider this example. Suppose a law enforcement agency has good evidence that an individual is a dangerous pedophile, who is raping children at an alarming rate. Despite their best efforts, law enforcement officials have been unable to secure sufficient evidence to convict. They propose a GPS tracker to monitor the movements of this person. However, this will only be effective if it is clandestine. Your view seems to be that in this case, it would be wrong for law enforcement officials to attach a GPS tracker to this person’s car, because it would violate that person’s right to property. My view is that sometimes, rights can be violated to prevent more serious harms, and we ought to structure our legislation to reflect this reality.
I don’t think this is an “all or nothing” type of scenario, but rather a case where the court had a chance to enact meaningful legislation to govern a complex moral domain. Instead, they took what I consider to be an overly simplistic view of rights, that they should always be protected, no matter the consequences. Even if this isn’t a case where the consequences were sufficiently beneficial to justify a rights violation, we can easily think of cases where this would be true.
Again, we clearly disagree, so I’m sure you will have quibbles with my reply, as you did with the original post. However, I want to thank you or providing what is probably the strongest argument against my position, thereby allowing me the opportunity to clarify the view I am defending.
Thanks for reading.
3 Walter Gibson // Jan 25, 2012 at 12:33 pm
I would politely propose one or two problems with your argument.
First, I think that you are employing a rather narrow conception of what it means for the government to cause ‘harm’. You seem to be implying that the government is only causing harm by violating a person’s civil liberties if the person suffers as a result of the violation, whereas I think that a libertarian (for lack of a better label) reply would be that the violation is harmful in itself, regardless of whether or not the person suffering it is aware of it or not. The mere fact that the government is intruding upon someone’s private property - and, therefore, violating the Constitution - could very well be viewed as a kind of social or political harm, not least because of the precedent it sets. Such actions are harmful because they undermine the rule of law, not necessarily because individuals suffer as a result.
The second problem I see with your argument falls out of the first: you seem to be assuming that the protection of rights is a means rather than an end in itself, and that violations of rights can be justified so long as the end result is that criminals are punished and the innocent go free. But I think that this ignores the effects, psychological, legal, and sociopolitical, that the violation of civil liberties gives rise to. It weakens the very concept of a guaranteed civil liberty to say that its guarantee ought to be contingent upon whether or not society is satisfied with the outcome of enforcing it.
I agree that it is frustrating and unfair when the guilty go free. But I think that your post is doing little more than giving vent to this sense of frustration. The middle way that you propose seems to me to be located in the judicially warranted investigative powers which the police possess, not in - what would of necessity be - vague or very generally described exceptions to the protection of individual rights.
4 Elijah Weber // Jan 25, 2012 at 1:29 pm
Walter,
Thanks for the really well-thought-out reply. I think you are right that I am adopting a fairly narrow conception of harm, in part because I don’t understand what it means to say that something is harmful despite not harming the subject of the harmful thing. People talk this way quite a bit, and frankly, I just don’t get it. I’d like to hear more about how rights violations are themselves harmful, even when they don’t harm the subject of the violation. In other words, where exactly is the harm located, in that case? A harm that harms no one, in my book, is no harm at all.
Your second point is interesting, and I think you are correct that there would likely be harmful effects, for others, if we allowed too many violations of civil liberties. What I’m suggesting is just that sometimes, we have very good reasons to violate those civil liberties, and those reasons can outweigh the reasons we have for respecting them. Not always, but surely once in a while, such as in the pedophile case I described above. I agree that I’m assuming the protection of rights is a means. I think it’s a means to promoting the well-being of as many individuals as possible who fall within the scope of those rights. Part of the debate, which your post is drawing out nicely, concerns what rights are for. My view is that they are a means to promoting valuable ends, whereas your view appears to be that they are an end in themselves. Both are, so far as I can tell, defensible views.
You conclude by stating that the middle way I propose seems “to be located in the judicially warranted investigative powers which the police possess.” Yes, but why shouldn’t clandestine GPS tracking, when done on the basis of very good reasons rooted in trying to prevent serious harm to others, be part of those judicially warranted investigative powers?
In any event, you’ve definitely given me some things to think about, and I appreciate your comment. Thanks.
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