Good Luck With That

Remember Yasir Afifi, the 20 year-old American-born college student that discovered that the FBI had stuck a GPS tracking device on his car? And when the FBI turned up to recover it, told him "We're going to make this much more difficult for you if you don't cooperate"?

He's suing, "hoping for a ruling that any use of tracking devices without a warrant in the United States is unconstitutional."

Mr. Afifi lives in the 9th Circuit. That Court has already decided his case with the precedent-setting U.S. v Pidena-Moreno. Stare decisis that says he hasn't got a snowball's chance, and neither do the rest of us.

Remember, the 9th Circuit is where judge Alex Kozinski wrote in a dissent, chastising his fellow judges:

Judges know very well how to read the Constitution broadly when they are sympathetic to the right being asserted. We have held, without much ado, that “speech, or...the press” also means the Internet...and that "persons, houses, papers, and effects" also means public telephone booths....When a particular right comports especially well with our notions of good social policy, we build magnificent legal edifices on elliptical constitutional phrases - or even the white spaces between lines of constitutional text. But, as the panel amply demonstrates, when we're none too keen on a particular constitutional guarantee, we can be equally ingenious in burying language that is incontrovertibly there.

It is wrong to use some constitutional provisions as springboards for major social change while treating others like senile relatives to be cooped up in a nursing home until they quit annoying us. As guardians of the Constitution, we must be consistent in interpreting its provisions. If we adopt a jurisprudence sympathetic to individual rights, we must give broad compass to all constitutional provisions that protect individuals from tyranny. If we take a more statist approach, we must give all such provisions narrow scope. Expanding some to gargantuan proportions while discarding others like a crumpled gum wrapper is not faithfully applying the Constitution; it's using our power as federal judges to constitutionalize our personal preferences.

Judge Kozinski wrote a dissent in Pidena-Moreno, too.  Among other things, he said this:

The needs of law enforcement, to which my colleagues seem inclined to refuse nothing, are quickly making personal privacy a distant memory. 1984 may have come a bit later than predicted, but it's here at last.