The Locked Letter

We're recording.

Before we begin. There is a glass eye above the door of your lobby.

The camera.

Your assistant called it that. She said it was for security. I asked whose, and she said the building's. I asked who watches through it and she said no one, it records. I asked who reads the record and she said no one, unless something happens. I asked what happens to the record when nothing happens, and she said it was kept for thirty days and then written over.

That's about right.

Then I have been observed, by no one, for the benefit of a building, and the observation will be destroyed unless it is needed, in which case it will not be. I have not been able to determine who is responsible for that arrangement. I asked whether the town had required it and she said no. I asked whether the owner had chosen it and she said it came with the door.

It came with the door.

You see my difficulty. It is not a great difficulty. It is a small glass eye. I mention it because I suspect it is the subject of the afternoon in miniature, and I like to know the shape of a thing before I am asked to walk around it.

It is. Mr. Madison, welcome.

Thank you. I would prefer to sit where I cannot see the door.

This is The Hitching Post. I'm Peter Corrigan, back at street level this week and grateful for it. Our guest was the principal author of the Constitution, a title he spent forty years declining; wrote twenty-nine of the Federalist essays and the Bill of Rights; served two terms as President, during one of which the British burned his house; and stood five feet four inches tall in a room full of men who never let him forget it. He was on the five-thousand-dollar bill. They stopped printing those in 1945, so if you have one, don't spend it here.

I did not know about the five thousand. I am told these things gradually.

Would it have pleased you?

It would have puzzled me. Five thousand dollars was the annual salary of the Secretary of State when I held the office. I should have thought it an odd sum to put in a man's pocket. But then, I am told, they put Mr. Hamilton on the ten, which is a sum a man might actually need, so perhaps the honor is inverse.

He said much the same thing about Jackson.

I imagine he did.

June 8th, 1789. You stand up in the House and propose a set of amendments. One of them reads, in your draft: "The rights of the people to be secured in their persons, their houses, their papers, and their other property, from all unreasonable searches and seizures, shall not be violated by warrants issued without probable cause, supported by oath or affirmation, or not particularly describing the places to be searched, or the persons or things to be seized." What were you trying to stop?

The general warrant. A writ that named no house and no paper and no man, and permitted the officer to search wherever he pleased for whatever he might find. The colonies had lived under them. Mr. Otis had argued against the writs of assistance in this town, in 1761, in a speech Mr. Adams used to say was the beginning of the Revolution, though Mr. Adams said that of several things. The remedy was particularity. The magistrate must name the place, the thing, and the cause, under oath, so that the search is bounded before it begins and someone answerable for it.

So the amendment is about the warrant.

The amendment is about the warrant and the search. It says what the government may not do and under what conditions it may do the rest. I would observe that it does not say what a citizen may do to make the search difficult. That was not thought to need saying. A man might keep his papers in a strongbox and the strongbox in a cellar and the cellar behind a false wall, and the law had nothing to say about it except that the officer with a proper warrant might break the wall.

Hold on to that. Let me describe the modern situation and stop me when I need to.

You will find me a frequent interrupter. I ask the indulgence in advance.

Everyone carries a device. You've seen one.

I have been shown one. I was told it was a telephone, which I understand to be an instrument for conversing at a distance, and then I was told that nobody uses it for that.

It's the strongbox. It's the cellar. It contains, for most people, every letter they've written or received for years. Their ledgers. What they've bought. Their physician's notes, sometimes. Photographs of everyone they know. And it keeps a record of where it has been, which is where they've been, minute by minute.

Where they have been.

It knows its position on the earth to within a few yards, and it remembers.

Why?

So it can tell you where you are.

A man generally knows where he is.

You'd think so. The point is, all of it is in the box. And for the last dozen years or so, the boxes have been built with a lock that the maker cannot open. Not won't. Can't. The contents are turned into a cipher with a key only the owner has, and if the owner loses the key, the contents are gone, and if the government seizes the box with a perfect warrant, particularly describing everything, it gets a box it can't read.

A cipher.

A cipher.

I have used ciphers. Mr. Jefferson and I corresponded in one for years; he devised it and I complained of it. It was a table of numbers for syllables. A letter of two pages took an evening to put into it and a second evening for him to take out, and he generally answered the wrong question, because I had miscounted a column. I do not say this to belittle your locks. I say it so you will understand that I know what a cipher is for. It is for the case where the letter may be opened by someone with no right to open it, in a country where the post was not safe.

And here, now, the argument is that the letter may not be opened by someone with the right. The government says: we have a warrant, sworn, particular, exactly as you specified, and it's useless. So there's a proposal, and it's been proposed in different forms for thirty years and passed in some other countries. The law would require the makers of the boxes to keep a second key. Held in reserve. Produced to a magistrate on a warrant.

Held by whom?

That's the first fight. The maker, or the government, or a third party, or split between them.

Held where?

Somewhere secure.

I know the word. I have heard it applied to Detroit. Mr. Corrigan, I will take your proposal seriously, because I take it that serious men have made it, and I would ask you to take seriously my first difficulty, which is not constitutional at all. It is this. A key that is kept somewhere may be taken from there. That is not a maxim of law. It is a maxim of keys. The whole virtue of your cipher, as you have described it, is that there is no place where the key is kept except in the owner's possession. The moment there is a second place, the question is not whether the government may go there with a warrant. It is who else can go there without one.

That's the argument the engineers make.

Then I am pleased to find myself an engineer. I have generally been called worse. Let me put the constitutional question, since it is the one I was invited for. Does the proposal violate the amendment as I wrote it?

You tell me.

I think it does not, and I think that is the most alarming thing I will say this afternoon. The amendment forbids unreasonable searches and general warrants. Your government proposes to search with a particular warrant. The amendment restrains the magistrate. It says nothing about the locksmith. I did not write "Congress shall make no law respecting the strength of locks," because in 1789 no one had conceived that the strength of a lock could be legislated. The strongbox was the citizen's business. The wall was the citizen's business. If the officer with a proper warrant could not get through the wall, that was the officer's misfortune and the end of the matter.

So the government's position is constitutional.

The government's position is unaddressed. Which is different, and worse, because it means the argument will be made on grounds of convenience, and on grounds of convenience the government always wins. It has the greater convenience.

Let me put the government's case to you properly, because I don't want you to answer a weak version of it.

I would be grateful. I have spent a good deal of my afterlife being quoted against weak versions of things.

The case is: crimes are planned in the boxes. Some of them terrible. Children are harmed and the evidence is in the box. Men conspire to kill and the conspiracy is in the box. In your day, a warrant could reach any paper in the country. Now there is a category of paper that no warrant can reach, ever, and it's the category that matters most. The word the government uses is "going dark."

That is a good phrase. Someone was paid for it.

Probably.

I will give the government's case its due. It is true that in my time no paper was beyond the reach of a warrant, if the officer were diligent enough and the wall not too thick. It is also true that in my time a man's papers were in one place, and now, you tell me, they are in his pocket, and there are a hundred times as many of them, and they include where he stood at ten o'clock on Tuesday. So the reach of the warrant has grown enormously at the same moment that its grasp has been closed. I would put it to your government that it is complaining of the second thing while enjoying the first, and that the two arrived together, and that this is not a coincidence. Men built the lock because they had noticed the box.

That's not an answer to the children.

No. It is not. The answer to the children is the one I gave to Mr. Jefferson in 1798, and I will give it to you and then I will tell you why it is not sufficient. I wrote him that it was perhaps a universal truth that the loss of liberty at home is to be charged to provisions against danger, real or pretended, from abroad. Your government has found a danger that is not from abroad but from within the house, and worse, from within the nursery, and I confess the maxim does not quite reach it. I did not anticipate that the argument for the general key would be made in the name of children. I would only observe that the argument will be made in the name of children first, and then in the name of everyone, and that the key will be the same key.

You've been misquoted on that letter, by the way. There's a version on many posters; it has been traced. "If tyranny and oppression come to this land, it will be in the guise of fighting a foreign enemy."

I did not write that.

No. It appeared around 2001 and it has your name on it.

It is not badly put. It is not what I said. I wrote "real or pretended," which is the whole of the point. A man who fights a real foreign enemy may lose his liberty in the course of it; that is a misfortune. A man who is told of a pretended one loses it by design. The poster has removed the distinction and kept the alarm. That is generally how it goes with posters. I should like it corrected, if there is a mechanism.

There isn't.

Then I should like it noted.

Let's go to Philadelphia.

Must we?

Dr. Franklin.

[on the line] I am here, though I want it understood that I am here under protest. The device rang while I was at the privy. Mr. Madison, good afternoon.

Doctor.

Corrigan, what is it.

We're talking about the government requiring a second key to everyone's cipher.

Ah. Then I have a professional opinion, since I was postmaster for twenty years and the British opened my letters for most of them. In 1774 the Crown dismissed me as its deputy postmaster for the colonies, and the next year the Congress made me postmaster for ours, and in between I had learned that the British had been opening the colonial mail for years, including mine, while I was the King's own officer for the mail. Mr. Madison wrote Mr. Jefferson in 1784 that every letter not in cipher would be read by the postmasters, and he was right, and I had been the postmaster. I mention this because your government proposes to hold the key, and I was the government, and I did not hold it; I was held. It is generally how it goes with keys.

I had not heard the story about the bags.

You were twenty-four. You had not heard anything. Corrigan, the young woman who set up the device tells me that the cipher on it cannot be broken by all the machines in the world working for a thousand years. I have asked her whether I might take it apart to see the cipher and she has told me that it is not in a place I can reach. I find that I dislike a lock I cannot look at, whoever holds the key. Good day.

He is right about the smith.

He usually is about smiths.

I have a document I want to read you.

I had expected one. You have been holding it as Mr. Hamilton says you held his.

You've compared notes.

We were once collaborators. We are civil.

March 1812. You're President. The country is arguing about whether to go to war with Britain. Your Secretary of State, Mr. Monroe, is approached by a man calling himself the Count de Crillon, who has a bundle of letters for sale. They were written in 1809 by a British agent named John Henry, reporting to the Governor of Canada on his efforts to encourage the New England Federalists to break from the Union. The Count wants a lot of money.

Fifty thousand dollars.

Fifty thousand dollars, from the secret service fund, which was the entire fund. The letters are genuine. The Count is not; he's a French swindler who has attached himself to Henry. You pay, and on March 9th you send the letters to Congress with a message saying they prove that Britain has been "fomenting disaffection" and plotting "the destruction of the Union." The Federalist press calls it a fraud. It emerges that Henry had named no names, produced no disaffected Federalists, and had sold the letters because London wouldn't pay him. Three months later Congress declares war.

Yes.

In 1798 you wrote to Jefferson about Adams's "successful use of the Dispatches in kindling a flame among the people, and of the flame in extending taxes, armies, and prerogative." In 1812 you bought a bundle of dispatches and sent them to Congress.

I will answer that in three parts, and I would ask you to let me finish all three before you reply, because I know which one you want to interrupt.

Go ahead.

First. The letters were genuine. Henry had been employed by Craig, in Quebec, for the purpose stated. That was true when I sent them and it is true now, and no fraud by Crillon changes what Henry was. Second. The price was an error and I have known it was an error since the week I paid it. Monroe was deceived by a man who deceived professionally, and I was deceived by Monroe's being deceived, and fifty thousand dollars of the public money went to a Frenchman for a bundle that proved less than it was bought to prove. I make no defense of that. Third, and this is the one. You have read my letter of '98 back to me and you are right to. I said that the loss of liberty at home is charged to provisions against danger real or pretended. I said that the management of foreign relations is the branch of government most susceptible of abuse, because dispatches may be concealed or disclosed or disclosed in part as best suits particular views. And in 1812 I disclosed a set of dispatches, in full, on the eve of a war I had already concluded was necessary, because I judged they would move the country toward it. I did not think I was pretending the danger. I thought the danger was real and the letters were merely late. But I have had a long time to consider whether a man in that chair can tell the difference, and I have concluded that he cannot, and that the maxim I wrote at forty-seven was written for a man in a different chair.

So the maxim was wrong?

The maxim was right. It was written for the governed, and I forgot it when I governed. That is not a defect in the maxim. It is the reason the maxim was necessary. I would put it in the Constitution if I could find the article.

Would the general key have helped you? In 1812?

Enormously. I could have read Henry's letters without paying for them. That is the argument for it, Mr. Corrigan, in one sentence: it would have helped me. I have been trying all afternoon to think of a President it would not have helped, and I cannot, and I have known most of them.

Mail.

I will listen. I am told this is the custom.

When Colonel Hamilton was here, on the Electoral College, and a listener in Omaha writes: "Your host let Hamilton get away with something. He went on about his district plan as if it was the lost cure, and you mentioned Nebraska uses it and then dropped the subject. We've used it since 1992. We've split our votes exactly twice. Both times the legislature tried to repeal it. Neither time did anyone deliberate about anything. Ask him how his plan does when it's actually tried." Signed, a Nebraskan who has met his electors and was not impressed. We did reach out to Colonel Hamilton.

[recorded] The gentleman from Omaha has the advantage of me, since he has lived under the plan and I only proposed it. I take his point and I will answer it. My plan did not promise deliberation; the sixty-eighth number promised that, and I have already conceded, on this program, that the promise was hollow before it was made. The plan promised something narrower, which is that no state should be a cipher and no man's vote should vanish because his neighbors outnumbered him. The gentleman says his state has split twice in thirty years. I say that is twice that a district of Nebraska was heard in its own voice, and I would ask him whether, in the other forty-eight states, a district has been heard once. As to the legislature attempting repeal, I observe that it attempted and failed, and that a plan which survives two attempts by the party in power to bury it has at least one virtue I did not claim for it, which is that it is difficult to kill. He is welcome to a second letter. I am, I am told, easy to reach.

He is.

He always was. It was the difficulty.

I want to give you the last part of the modern situation, and it's the part I've held back.

I had assumed there was one.

In 1791 you wrote a short essay in the National Gazette on public opinion. You said that "the larger a country, the less easy for its real opinion to be ascertained, and the less difficult to be counterfeited." And that whatever facilitated "a general intercourse of sentiments," roads, commerce, a free press, "a circulation of newspapers through the entire body of the people," was "equivalent to a contraction of territorial limits," and was favorable to liberty in a country too large for it.

I did. I was answering Montesquieu, who said a republic must be small. I said it must be small in effect, and that the press could make it so.

The device does that. Everyone's sentiment reaches everyone else, instantly, at no cost. The country has been contracted to the size of a village.

Then I was right, and I would expect you to tell me why it is not a village.

Because of the other half of your sentence. The less difficult to be counterfeited. It's now possible to build a machine that writes in the voice of a citizen, and to build ten thousand of them, and to have them say the same thing at once, and no one can tell them from the ten thousand actual citizens who might be saying it. Foreign governments do this. Domestic parties do this. It's cheap.

So the intercourse of sentiments is general, and the sentiments are counterfeit.

Some of them. Nobody knows what fraction.

And the government's answer to this is to hold a key to every box, so that it may at least know which sentiments are real.

That's one of the arguments made for it, yes.

Then I will give you my answer and you may have it in a sentence, since I am told that is the custom too. The government that holds the key to every box will use it first to find the counterfeit citizens and second to find the real ones, and it will not be able to tell you, afterward, which it was doing, because the same key opens both, and I know this because I was that government for eight years and I could not tell either.

That was one sentence.

I have always been more economical than the Colonel. It is why I am on the larger bill.

Last question. Same one for everyone. Does the amendment you wrote do the job?

The amendment I wrote does the job I wrote it for, which is to bind the magistrate to a paper that names the house; it does not do the job you need, which is to say whether a citizen may build a house the magistrate cannot enter, and since I did not answer that question in 1789, I will answer it now, which is that he may, and that the amendment should say so, and that you should not expect the people who hold the key to propose it.

That was also one sentence.

Semicolons are not sentences. Mr. Jefferson and I disagreed on that as well.

That's The Hitching Post for this week. Thanks to Mr. Madison, to Dr. Franklin, who is presumably back at the privy, and to the listener in Omaha, who is owed a second letter and will get one. Next week, two guests, which we do now and then, and these two, which we do once.

Mr. Corrigan.

Yes.

The eye above the door. You said it recorded for thirty days.

Yes.

Then it has me arriving and it will have me leaving, and in thirty days it will have nothing. I find I mind the thirty days more than the eye. A record that is destroyed unless it is wanted is a record that is kept until it is wanted. There is a difference between that and a record kept forever, but I have not been able to determine what it is.

Neither has anyone.