Constitution Daily Update: Voting Rights Act, three questions about privacy, DOMA and FISA

It’s a big day for two constitutional milestones, and we have three looks at developing stories involving privacy, same-sex marriage, and national security.

Tuesday, August 6, 2013

Items To Watch

Nsa_sign1. Reuters in an exclusive on Monday said the Drug Enforcement Agency is using cellphone and other data from the NSA to arrest domestic drug-dealing suspects, which may raise a slew of constitutional issues about warrants and the Fourth Amendment.

2. New York Times reporter James Risen has filed a petition for rehearing en banc in the case of United States v. Sterling. The case is significant because the court said Risen must testify against his former source, former CIA officer Jeffrey Sterling, denying Risen’s claims of reporter’s privilege.

3. Today marks the 48th anniversary of the signing of the Voting Rights Act in 1965. We have a round-up of the current debate over the Act at

Developing Questions …

Here are some updates on new discussions about top-of-mind constitutional issues.

1. Can the police search the information contained in a person’s cellphone when they seize the phone during an arrest?

The case of U.S. v. Brima Wurie, decided by the First Circuit in a split vote of 2-1, raises the question of how a relatively new technology, the cellphone, should be analyzed under traditional Fourth Amendment doctrine.

The appeals court opinion of May 17, 2013 sets out the facts and the law clearly in

The question for con-law followers is whether, as the Justice Department argues, with the top criminal justice lawyer in the Solicitor General’s office making the argument, the search of a cellphone after a lawful arrest is incident to the arrest and therefore legitimate.

The counter-argument, made by the majority of the First Circuit with Judge Stahl writing for himself and Judge Lipez, is that because cellphones carry much more information than phone numbers to be called and carry a wide range of personal items (e.g., photos, addresses, to-do lists, and so on), investigating a cellphone is more like investigating someone’s house and calls for a higher showing of probable cause about the need to investigate and obtaining a warrant.

This case is like U.S. v. Jones, in which the Supreme Court prominently said a warrant is necessary for police to track a vehicle with a GPS device because, different from traditional eyeball surveillance, GPS surveillance allows police to see everywhere a suspect goes in a blanket intrusion on privacy.

Orin Kerr has a new post up at The New Yorker website about a recent Fifth Circuit ruling on whether a cellphone’s location is protected by the Fourth Amendment, suggesting a broader debate about cellphones and the Fourth Amendment.

2.  After the DOMA decision, are states required to respect same-sex marriages legalized in other states?

A new article in The Wall Street Journal frames this subject, with a strong accompanying graphic indicating how much change there has been in this issue legally and socially during the last 20 years and the past decade especially.

The article was prompted by the Supreme Court’s ruling this June in the Windsor case, striking down key discriminatory provisions in the Defense of Marriage Act on grounds that they violated the protection of liberty in the Fifth Amendment.

In addition, the article was prompted by a federal district court ruling in Ohio, in which the judge said that Ohio law and tradition required it to respect a same-sex marriage performed in Maryland.

The answer to the question posed above is not that the Supreme Court requires that, but that it is a state judgment and the laws and mores in states are changing rapidly on the issue, which provides room for debate. While 29 states still outlaw same-sex marriage,  13 states now allow for same-sex marriage.

3. What should judges’ roles be in reviewing the national security policies of the United States and in what kinds of courts?

At, Richard Pildes calls attention to the limited function of the FISA court, which functions like a magistrate in approving or disapproving government requests for warrants. It is unlike a conventional court in that only the government presents information in each case, without a government lawyer on the other side playing devil’s advocate.

The large theme the Pildes post gets at is the limited functioning of checks-and-balances during wartime.

Congress has declared no war since World War II, yet the U.S. is at war and has been repeatedly since the 1940s. In the Hamdan case in 2005 the Supreme Court said that detainees must have legitimate opportunities for challenging their detention with the use of habeas corpus, but since then the Hamdan decision has been effectively undercut because the D.C. Circuit has made restrictive law in its application of Hamdan and the Supreme Court has chosen not to review those rulings.


It was also on this day in 1787 that the Committee of Detail presented its preliminary draft of the Constitution to the Convention in Philadelphia. An account here from Yale’s Avalon project at

Closing Notes

1. A new opera will feature characters playing Supreme Court justices Antonin Scalia and Ruth Bader Ginsburg, singing about court decisions. The composer screened the opera for the two opera-loving jurists in late June.

2. George Washington’s personal copy of the Constitution is now at the Hoover Library in Iowa as it continues a national tour, before the $10 million document makes its permanent home at Mount Vernon.

Editor’s note: The Update is a summary of news and commentary about the Constitution and related issues, as reported around the digital world. Guest contributors and our editorial staff add to the daily update, and we welcome your suggestions (and reports) at [email protected].

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