… is from Justice Louis Brandeis’s dissenting opinion in the 1928 case Olmstead v. United States:
Experience should teach us to be most on our guard to protect liberty when the Government’s purposes are beneficent. Men born to freedom are naturally alert to repel invasion of their liberty by evil-minded rulers. The greatest dangers to liberty lurk in insidious encroachment by men of zeal, well meaning but without understanding.
In this famous case the U.S. Supreme Court upheld the criminal convictions of alcohol sellers who violated the National Prohibition Act – where evidence of these sellers’ ‘unlegislationful’ activities was gathered by government wiretaps of telephones. Government spying in the name of doing good, of course. What can be wrong with that? Fortunately, Olmstead was overturned in 1967 in Katz v. United States.
UPDATE: Readers will note my attempt to coin here a most inelegant term, namely, “unlegislationful.” It’s my response to “unlawful.” Murder is unlawful. Theft is unlawful. Rape is unlawful. But as careful readers of this blog know, I refuse to glorify mere legislation with the name “law.” (It’s an idiosyncrasy, I admit – but it’s my idiosyncrasy, so I’m sticking with it.) So violating a mere piece of legislation – committing an act made “wrong” merely because a legislature or bureaucrat or dictator declared such an act to be wrong – is not, in my view, helpfully called “unlawful.” Violating the consciously issued commands of a sovereign power – even in cases in which there is unanimous agreement that those commands are splendid and necessary – is different than violating the law. The two should not be confused. (I fully understand that my Hayek-inspired chosen word usage here – “legislation” as distinct from “law” and, even worse, “unlegislationful” as distinct from “unlawful” – stands no chance of being adopted widely, and that this usage strikes many even very thoughtful people as drawing distinctions that are more empty than substantive. But, again, some idiosyncrasies are especially important to those who hold them.)
