A response to Nelson Tebbe & Robert L. Tsai, Constitutional Borrowing, 108 Mich. L. Rev. 462 (2010).

Crediting the perception that the Constitution is a poorly cut puzzle whose variously configured pieces don't match, Nelson Tebbe and Robert Tsai propose that the stand-alone parts of freedom and equality can be merged and mutually enlarged through the act of borrowing. They are mistaken. While Thomas Jefferson wrote that ideas may be appropriated without being diminished and so "freely spread from one to another over the globe," the equality and freedom the Constitution addresses as actualities are constrained by a basic, familiar, and inescapable rule of financial accounting. Just as assets and liabilities must be in balance, freedoms are only acquired at the exacting expense of equality; no amount of borrowing can alter the equation. While as a matter of principle we are all equally entitled to be "let alone," this "most comprehensive right . . . the right most valued by civilized men," is not a one-size-fits-all proposition. While "the poorest man in his cottage" and the richest man in his mansion may both "bid defiance to all the forces of the Crown," the amount of privacy they enjoy as a matter of fact is incomparable. The privacy enjoyed by those unable to afford lodgings of any kind and forced to take refuge in their cars is further diminished as a matter of law, while the "homeless" sleeping out of doors and exposed to the elements enjoy no expectation of privacy apart from what they manage to secure in duffle bags. The Court's express rejection of the claim that the "‘need for decent shelter' and the ‘right to retain peaceful possession of one's home' are fundamental interests which are particularly important to the poor"-like its assertion that education is not a "fundamental right"-follows from the proposition that laws "having different effects on the wealthy and the poor" are not unconstitutional, and from the consequence of that proposition: that the freedoms most valued by Americans are for purchase. The wealthier the man, the more unequal the share he can afford.

I am reminded of Chicken Little’s famous mantra as I listen to some Supreme Court Justices’ reactions to the prospect of televising oral arguments. Their fears—such as Justice Kennedy’s warning that allowing cameras in the courtroom may change the Court’s dynamics—are, in my opinion, overblown. . . . I can make this guarantee—televising the Supreme Court’s oral arguments will not produce the disastrous results predicted by some frightened Justices; rather, it will yield positive results. Most notably, it will increase the public’s knowledge of the appellate process.

The idea of televising Supreme Court oral arguments is undeniably appealing. . . . There is an understandable hunger for anything that will help us understand these nine individuals who have so much power—who can even choose a President, or at least hasten his anointment. . . . Whatever the Justices’ motives, televising the Court’s arguments is a terrible idea. It is both misleading and unnecessary. Misleading because it would only randomly tell us something useful about the Court, and unnecessary because the Court is already more open than the other branches.

Senator Arlen Specter took a bold and long-overdue step on January 22, 2007, when he introduced legislation that would require the Supreme Court to allow television coverage of its proceedings. But instead of making his case with a straightforward appeal to the public’s right to know, Specter has introduced arguments in favor of his bill that seem destined to antagonize the Court, drive it into the shadows, or both. Chances of passage might improve if Specter adjusts his tactics.

In 2005 when Senator Arlen Specter (R-PA) first proposed legislation requiring the Supreme Court of the United States to televise its oral arguments, he resuscitated a twenty-plus-years long effort by several news organizations to achieve the same goal. For at least that long, C-SPAN has been ready to provide the same kind of video coverage of the federal judiciary as it has been providing of the Congress and the president. If cameras are ever permitted in the high Court’s chamber, C-SPAN will televise every minute of every oral argument, frequently on a live basis, and will do so in its trademark format of no interruptions or commentary.