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Then Versus Now

My post this morning at Fault Lines is about cops speeding. Someone who goes by LawDog put up this quote as a comment:

“Decency, security and liberty alike demand that government officials be subjected to the same rules of conduct that are commands to the citizen. In a government of laws, existence of the government will be imperiled if it fails to observe the law scrupulously. Our government is the potent, the omnipresent teacher. For good or ill, it teaches the whole people by its example. Crime is contagious. If the government becomes a lawbreaker, it breeds contempt for law; it invites every man to become a law unto himself.

Olmstead v. United States, 277 U.S. 438, 485 (1928) (Brandeis, J., dissenting).

Like a lot of snippets from old Supreme Court cases, it’s stunning. It’s powerful language that has a feel of independence and toughness, of standing up for principle. It also reflects a serious suspicion when it comes to unrestrained government.

It’s stunning because the idea that government without limits is dangerous is antiquated. The quote is a relic, as fierce opposition to increases in government power based on philosophical arguments about the broader implications of expanding that power are all but gone from our courts. To the average citizen, that sort of freedom loving language probably sounds not like something written by a justice of the highest court in the land, but more like the ramblings of some Luddite libertarian wearing a foil hat, living in a remote cabin and pooping in the woods. Ours is a society of weak, frightened people who will give anything to the leviathan in order to feel a little bit safer.

Consider that quote and the fact that, in the almost ninety years since Brandeis’s dissent, we’ve seen cops become drug dealers and criminals just show up with some cash as the reverse buy soared in popularity. Recently, the federal government has been giving guns to cartels and peddling child pornography. We’ve sunk far past any point Brandeis ever could have imagined, into the “post-reductio” era, if you will, yet people are scrambling to sink farther and won’t even take seriously arguments that continuing to give the government unfettered power will make things even worse.

On the bright side, at least Olmstead (where Brandeis was dissenting from a majority that said a wiretap wasn’t a search and seizure) was eventually overturned by Katz in 1967…

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3 Responses to "Then Versus Now"

  1. Insightful, but maybe overstating the problem. The 1920s were much different then the present in terms of communication and population. I’m positive that even back in 1920 there was just as many problems, but they were covered up because it was easy to cover it up. Also, less people were doing them, because there were much less people in the world. I think that times are just changed, not getting worse, and the justice system has to adapt to continue to be effective.

  2. Jay says:

    Yikes. That’s a pretty jaded and burned out post there bro. I’m pretty sure your clients need you to advocate for an understanding of the law that benefits them and against what you feel has become the reality. Just giving up and accepting the status quo is …. well it sure as hell isn’t lawyerly.

    1. Matt Brown says:

      Pessimistic, sure. But jaded? Burnt out? Recognizing the way things are is different from accepting it. And pointing out the harsh reality is about the best way I can think of to make people consider changing it.

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