Is a search a search?

(Continued from yesterday’s post.)

Scalia understood, when he needed to, that words changed their meaning, and stretched to accommodate cases that didn’t exist for the founders.  What, in the sense of the Fourth Amendment, counts as a “search”?  Scalia took up this lexical question in Kyllo vs. U.S, writing that infrared scanning of a house to detect excess heat (generated, the police correctly inferred, by a marijuana greenhouse within) did indeed constitute a search.  This is not the kind of search the Framers contemplated.  Nonetheless, says Scalia:

When the Fourth Amendment was adopted, as now, to “search” meant “[t]o look over or through for the purpose of finding something; to explore; to examine by inspection; as, to search the house for a book; to search the wood for a thief.” N. Webster, An American Dictionary of the English Language 66 (1828) (reprint 6th ed. 1989)

How to read this?  The written definition can be read to include viewing a house from the outside, and indeed, Scalia brings it up in this context:

One might think that the new validating rationale would be that examining the portion of a house that is in plain public view, while it is a “search”¹ despite the absence of trespass, is not an “unreasonable” one under the Fourth Amendment.

But visual inspection of a house has not been classified as search by the Court — “perhaps,” Scalia says, “in order to preserve somewhat more intact our doctrine that warrantless searches are presumptively unconstitutional.”

In fact, it’s pretty clear from other Scalia opinions that he chooses a meaning for the word “search” which is simultaneously more restrictive than the dictionary definition —  it excludes visual inspection of a house — and more inclusive than the contemporary plain-language meaning.  To push a stereo away from the wall and look at its serial number, as in Arizona v. Hicks, is not to “search” the stereo; it’s not even clear whether, in standard English, a stereo can be searched, unless by pulling open the casing and digging through its insides.  But in Scalia’s majority opinion there, the moving of the stereo is what creates the search:

A truly cursory inspection – one that involves merely looking at what is already exposed to view, without disturbing it – is not a “search” for Fourth Amendment purposes, and therefore does not even require reasonable suspicion… [t]aking action, unrelated to the objectives of the authorized intrusion, which exposed to view concealed portions of the apartment or its contents, did produce a new invasion of respondent’s privacy unjustified by the exigent circumstance that validated the entry. This is why, contrary to JUSTICE POWELL’S suggestion, post, at 333, the “distinction between `looking’ at a suspicious object in plain view and `moving’ it even a few inches” is much more than trivial for purposes of the Fourth Amendment. It matters not that the search uncovered nothing of any great personal value to respondent – serial numbers rather than (what might conceivably have been hidden behind or under the equipment) letters or photographs. A search is a search, even if it happens to disclose nothing but the bottom of a turntable.”

So a “search,” for Scalia, requires observation of something that might reasonably be expected to be private, but doesn’t require looking inside of the thing searched.  I think that’s a pretty good definition; but it’s not what’s in the dictionary, it’s not the way we use the word in plain Enlglish, and Scalia makes no claim that it’s what was in the Framers’ minds.  It’s a definition you choose in order to achieve a goal, the goal of a workable evidential rule that suits our — or someone’s — sense of justice.

And that’s why it grates when Scalia says “[a] search is a search.”  So matter-of-fact, so direct; but so utterly opposite to what’s actually happening!  He should have said “A search is what we define a search to be.”

In light of Scalia’s take on statistical sampling, his rejection of Powell’s dissent is interesting:

As for the dissent’s extraordinary assertion that anything learned through “an inference” cannot be a search, see post, at 4-5, that would validate even the “through-the-wall” technologies that the dissent purports to disapprove. Surely the dissent does not believe that the through-the-wall radar or ultrasound technology produces an 8-by-10 Kodak glossy that needs no analysis (i.e., the making of inferences)

To measure radiation emanating from the outside of a house, and to infer by technological means something about the contents of the interior that can’t be directly observed:  this, for Scalia, is a search.  To count all the inhabitants of a city you can find, and to infer by technological means something about the people who couldn’t be directly observed:  that, Scalia says, isn’t counting.  In Kyllo, Scalia is happy to speculate about future technologies that will make his view more obviously correct, as soon as they exist (“The ability to “see” through walls and other opaque barriers is a clear, and scientifically feasible, goal of law enforcement research and development.”)  In Commerce, his vision of technological progress in statistics is decidedly more pessimistic.  Why?

Antonin Scalia thought jurisprudence was more like math than it really is

I didn’t mean for Antonin Scalia to be a major character in my book.  I was just going to write about an interesting math snafu that shows up in one of his capital punishment opinions.  But then that led quite naturally into talking about “formalism,” which many mathematicians use (or think of themselves as using) as their everyday philosophy of math, just as Scalia used it (or thought of himself as using it) as his everyday philosophy of jurisprudence.

Legal reasoning is not much like math.  But Scalia sometimes acts like he thinks it is.  That’s what makes him an interesting figure to me.  He writes down arguments which he presents as derivations axioms — as if the words of the Constitution determined the resolution of the legal question, so long as you were willing to apply them methodically and impartially in the correct sequence.

But surely that’s wrong!  The words of the Constitution underdetermine a lot of really interesting questions.  Richard Posner:

Most of the cases the Supreme Court agrees to decide are tossups, in the sense that they cannot be decided by conventional legal reasoning, with its heavy reliance on constitutional and statutory language and previous decisions. If they could be decided by those essentially semantic methods, they would be resolved uncontroversially at the level of a state supreme court or federal court of appeals and never get reviewed by the Supreme Court.

I have written before about the Court’s decision that statistical sampling in the Census is in conflict with the relevant Constitutional clause:

Representatives and direct taxes shall be apportioned among the several states which may be included within this union, according to their respective numbers, which shall be determined by adding to the whole number of free persons, including those bound to service for a term of years, and excluding Indians not taxed, three fifths of all other Persons. The actual Enumeration shall be made within three years after the first meeting of the Congress of the United States, and within every subsequent term of ten years, in such manner as they shall by law direct.

Scalia’s opinion concentrates on the word “enumeration,” which he argues does not mean “determining the number of,” but rather should be understood in the more restrictive sense of “counting one by one.”  And he has some good contemporary sources for this reading!  You get a nice satisfying no-nonsense feeling, reading this opinion.  Then you start to think about what it actually says. Is Scalia declaring that constitution requires that the census count people one by one?  Can’t be — for the last fifty years the census has been conducted mostly by mail.   Does he think the census has to enumerate something, but it doesn’t have to be people?  Could it be anything?  Could it be “all property owners?”  Could it be “all non-atheists?”

Note, too, that when you fill out the census form, you write down the number of people in your household, then you fill out information for each person.  When the numbers are compiled, the computer, surely, adds up the numbers from each form to get an answer.   In other words:  a mathematical process other than enumeration-in-the-narrow-sense whose output is an approximation to the total number of people in the United States.  Kind of like statistical sampling.  Except not as good an approximation.

I don’t think we should consider that process unconstitutional.  It seems reasonable to consider it an enumeration, despite the inconsistency with some dictionary definitions.  Because dictionary definitions aren’t mathematical definitions.  A mathematical object is exactly what it is, and nothing else.  But when we read a word, we make a choice.

Scalia makes one choice: we could also opt for a more expansive but equally common-sensical definition of “enumerate” as “determine, to the extent possible, the number of,” which permits statistical sampling aimed at counting the “whole number” of Americans.  That “whole” is a word in the Constitution too, with as much binding force as “enumeration.”  It doesn’t appear in Scalia’s opinion.

Am I saying Scalia’s opinion in Dept. of Commerce vs. U.S. House of Representatives was wrong?  No; I’m saying merely that it’s not the kind of opinion it presents itself as being.  It is not determined by the text before it.  It relies, elsewhere, on an argument from pragmatism:  if statistical sampling is constitutionally permissible, then legislatures might authorize it, and the resulting partisan wrangling over methodology would create hard cases for future courts.  These are fair arguments, but they’re not textual arguments.  The argument admits that we make choices when deciding what words mean, and we should let our choices be guided by their likely consequences.

But no, I don’t think those arguments are obviously wrong.  It is pretty rare to find Scalia being obviously wrong.  Except in the following higher-level sense.  Scalia seldom concedes that the questions he faces are authentically difficult.  He — or at least the character of “Scalia” he plays in the opinions — lacks the humbleness appropriate to the task.  His habit is to present his conclusion as if it’s obviously right, the way a mathematical proof, once you understand it, is obviously right.  That is obviously wrong.

Update:  Commeter aaaatos makes a really important point, one I meant to address directly in the post.  He writes:  “what makes the legal system so useful to mankind is the fact that therein law is treated in a formalistic way as much as possible, i.e. as if it were mathematics.”  This points to another plausible account of Scalia:  that he didn’t actually believe law was very much like math, but felt it was best practice for judges to pretend to believe that.  That’s what I was getting at with the distinction between Scalia the person and “Scalia,” the persona he adopts as a writer of opinions.

Why pretend?  Partly because it enhances the authority of the process; partly because pretending to believe it helps us be “as formalist as possible,” mildly constraining the inevitably biased choices we make when we read words and try to obey them.

 

 

Scalia was right

As Caleb Crain pointed out way back in 2003, Antonin Scalia’s dissent in Lawrence v. Texas, which struck down Texas’s anti-sodomy laws, argues that the majority’s reasoning leaves the federal government without any constitutional way of forbidding gay marriage.

Today’s opinion dismantles the structure of constitutional law that has permitted a distinction to be made between heterosexual and homosexual unions, insofar as formal recognition in marriage is concerned. If moral disapprobation of homosexual conduct is “no legitimate state interest” for purposes of proscribing that conduct; and if, as the Court coos (casting aside all pretense of neutrality), “when sexuality finds overt expression in intimate conduct with another person, the conduct can be but one element in a personal bond that is more enduring”; what justification could there possibly be for denying the benefits of marriage to homosexual couples exercising “the liberty protected by the Constitution”?

I think Scalia meant to weight the contrapositive a little more than the direct implication, but hey, the two are equivalent, and it looks like he was right.

Update:  Just to give this a little more context:  It might look from this excerpt like Scalia is saying “gay marriage is obviously terrible and this decision would make it unconstitutional for Congress to outlaw gay marriage, therefore the decision is wrong.”  But in fact Scalia is responding here not to the Court’s main opinion in Lawrence, but to Sandra Day O’Connor’s concurrence, in which she goes out of her way to explain that her vote here should not be taken as precedent for establishing same-sex marriage as a constitutional right, no way, no how; while “moral disapproval” is not a legitimate state interest, she says rather vaguely that  “other reasons exist to promote the institution of marriage beyond mere moral disapproval of an excluded group,” and that these reasons, whatever they are, mean that laws forbidding same-sex marriage are constitutional.

Scalia’s dissent says, and I paraphrase, “You’re kidding yourself, Day-O —  if there’s no legitimate state interest in forbidding sodomy to same-sex couples while allowing it for opposite-sex couples, then there’s no legitimate state interest in forbidding marriage to same-sex couples while allowing it for opposite-sex couples, and you shouldn’t allow yourself to pretend otherwise.”  And he was right!

 

 

The census will be wrong. We could fix it.

I have an op/ed in tomorrow’s Washington Post about statistical sampling and the census.  It boils down to the claim that by failing to use the best statistical techniques we have to enumerate the population accurately, we’re getting the answer wrong on purpose in order to avoid getting it wrong by accident, and possibly violating the Constitution as a result.  And that estimating an unmeasured quantity to be zero is a really bad estimate.

The book Who Counts?  The Politics of Census-Taking In Contemporary America, by Margo Anderson and Stephen Fienberg, was an invaluable resource for the piece — highly recommended.

One argument I cut for space involves Kyllo vs. US, in which the Supreme Court ruled, in an opinion written by Antonin Scalia, that the use of a thermal imaging device to detect heat coming off the exterior wall of a house, and thus to infer the presence of a drug operation inside, can constitute a “search” for Fourth Amendment purposes.  On the other hand, Scalia questions the constitutionality of statistical adjustment of the census, expressing doubt that such a procedure would still be an “actual enumeration” as required by the Constitution.  So, for Scalia:

• “Search,” in 2010, includes a scenario in which something of interest inside the house is not seen or otherwise sensed by any person or people, but is inferred by means of a scientific instrument that didn’t exist in Constitutional times.
• But “enumeration,” in 2010, does NOT include a scenario in which the population is not counted one by one by any person or people, but is inferred by means of a statistical instrument that didn’t exist in Constitutional times.

Is that a problem?

Update (4 May):  It turns out I’m not the first arithmetic geometer to weigh in on census adjustment.  Brian Conrad in the New York Times, August 1998 does in three sentences what took me 1000 words:

Human intelligence plus a little brute force is often far more efficient and accurate than brute force alone. This is why statistical sampling is the superior way to carry out an ”actual enumeration” of a large population. Just ask any Republican who relies on a poll or who takes a blood test rather than drain every drop from his body.