Obergefell v. Hodges held same-sex couples have a right to legal marriage. As the dissenters emphasized, this right to marry is anomalous, doctrinally and normatively. Most rights in the United States Constitution are negative liberty rights. For example, the states may not interfere with procreative choices, but individuals have no right to public funds for contraception. Moreover, if children have no right to public funds for education, it seems morally dubious to claim a right to public support for adult marriages. What is this positive right to marry and what justifies it? This Article reconstructs a conceptual and normative foundation for the positive right to marry. Previous theories of the right to marry as a negative liberty right or an equality right are unsatisfactory, because they fail to justify the connection between intimate liberty and marriage law. The right to marry is a positive right, but one of a specific kind. Unlike the right to education, it is not a claim to public benefits. It is a “power right,” a right to create legal duties for intimate relationships. This right is not simply a means to promote valuable relationships; it is necessary to ensure equal liberty. Relationships carry open-ended commitments that threaten to subordinate the partners to one another. A right to legal marriage is necessary to reconcile intimate liberty with equality.
Issue 7
The Rationality of Rational Basis Review
Through the “rational basis” test, the Supreme Court asserts the authority to assess whether laws are “rationally related to a legitimate governmental interest.” Although it gives the Court an effective substantive veto over all legislation, rationality review is poorly understood and under-theorized. Developed haphazardly over time, rationality review is not the product of either a considered formula or a particular theory of constitutional law, and though it is clothed in the language of rationality, it represents the Court’s own decidedly intuitive understanding of the proper sphere of state regulation. At one time, that understanding was based in a widely held conception of the “police power,” but the connection to the police power was severed after the Court’s decision in United States v. Carolene Products. Since then, the Court has developed ad hoc a conception of the proper role of government that has become almost entirely utilitarian in nature.
This Article examines the Court’s view of how rationality should (and by virtue of the power of judicial review must) feature in legislation by tracing the development of rationality review and comparing it to more rigorous understandings of political rationality. Comparison reveals the Court’s limited conception of rationality, which allows the Court to avoid difficult questions in pursuit of seemingly uncontroversial instrumental ends. Examination of the Court’s approach to rationality demonstrates the need for a broader conception of legislative rationality – one that includes “constitutive ends.” Recognizing constitutive legislative ends, combined with an information-forcing rule for revealing those ends, can both improve democratic discourse in the legislature and lead to a richer and more intellectually honest form of rationality review.
Confronting Big Data: Applying the Confrontation Clause to Government Data Collection
How did you stumble across this Note, and what does that say about you? What words you queried, how quickly you typed them, the web-sites you recently visited, and your current geographic location are all useful data points that can be aggregated to form an informative picture of who you are and what you have done.
Companies such as Google collect this data because it can be analyzed for patterns that can predict your future acts. This predictive ability is useful to both a salesman predicting when you might purchase your next pair of shoes, as well as an FBI agent predicting when you may perform your next act of terrorism. By collecting vast amounts of data, commonly referred to as “big data,” predictions can be exponentially more accurate than ever before. In addition to predicting what you may do, analyzing big data allows for a more detailed depiction of what you have already done. It is this backwards-looking feature of big data that this Note will address.
When government investigators request data from companies such as Google, they obtain data on targeted individuals with a guarantee that the data has been collected, stored, and analyzed properly. These guarantees constitute a testimonial statement under the Confrontation Clause. Similar to lab analysts who submit test results of cocaine samples or blood alcohol levels, this Note argues that analysts involved with the collection, storage, and analysis of big data must be available for confrontation under the Sixth Amendment. At least one federal appeals court has adopted a similar view.
In addressing the constitutionality of modern government surveil-lance, this Note examines a growing problem. Much of the contemporary academic debate regarding the constitutionality of government surveillance focuses on the President’s Article II authority and the Fourth Amendment. Missing from this literature is a detailed discussion of the Confrontation Clause. This Note fills that void by examining the usefulness of the Confrontation Clause in addressing mass data collection by the government.
The usefulness of the Confrontation Clause becomes apparent when one considers the finite ability of the Fourth Amendment to address government data collection. Every federal appeals court to address the issue has found that the President possesses the inherent authority to collect data for foreign intelligence purposes without a warrant. The President’s authority to collect data, however, does not provide the government with unfettered authority to use the data in a criminal proceeding against a defendant. When data is presented at trial against a criminal defendant, the Confrontation Clause is implicated, and the clause’s ability to act as a check on government surveillance comes in-to focus. This flexible check on government surveillance can be attained through the application of contemporary Supreme Court Confrontation Clause doctrine.
Many scholars, however, are hesitant to extend the Supreme Court’s contemporary Confrontation Clause doctrine. This Note addresses their concerns, and explains why the common objections to extending current doctrine do not apply to big data transfers. Moreover, the Supreme Court’s recent decision in Riley v. California provides additional support for treating big data as unique.
In Part I, this Note will provide an introduction to big data and the legal authority for its collection by government investigators. Part II will explain the Supreme Court’s contemporary Confrontation Clause doc-trine. Part III will present the argument that the Confrontation Clause of the Sixth Amendment applies to big data transfers under two independent theories: one theory dealing with individual pieces or small collections of data, and another theory dealing with a novel application of the Mosaic Theory. Part IV will describe Google’s procedures for answering government requests for data, and will outline the small number of Google employees that would be required for confrontation.