In Heffernan v. City of Paterson, the Court held that a public employee cannot be punished based on the employer’s mistaken belief of the employee’s behavior. Specifically, a police officer cannot be demoted when his employer mistakenly thought he was associating with a political campaign–but he didn’t actually engage in that association. Justice Breyer wrote the majority opinion, with Justice Thomas, joined by Justice Alito in dissent.

Justice Breyer attempts to make a textualist argument to support his holding that a person does not actually have to exercise a First Amendment right in order for there to be a First Amendment violation:

We note that a rule of law finding liability in these circumstances tracks the language of the First Amendment more closely than would a contrary rule. Unlike, say, the Fourth Amendment, which begins by speaking of the “right of the people to be secure in their persons, houses, papers, and effects . . . ,” the First Amendment begins by focusing upon the activity of the Government. It says that “Congress shall make no law . . . abridging the freedom of speech.” The Government acted upon a constitutionally harmful policy whether Heffernan did or did not in fact engage in political activity. That which stands for a “law” of “Congress,” namely, the police department’s reason for taking action, “abridge[s] the freedom of speech” of employees aware of the policy. And Heffernan was directly harmed, namely, demoted, through application of that policy.

In other words, the First Amendments focuses on the activity of the government–irrespective of whether a right of free speech exists–while the Fourth Amendment focuses on protecting the right of the people to be secure in their persons. This is fundamentally wrong.

In his dissent, Justice Thomas takes Justice Breyer to school.

The majority tries to distinguish the Fourth Amendment by emphasizing the textual differences between that Amendment and the First. See ante, at 6 (“Unlike, say the Fourth Amendment . . . , the First Amendment begins by focusing upon the activity of the Government”). But these textual differences are immaterial. All rights enumerated in the Bill of Rights “focu[s] upon the activity of the Government” by “tak[ing] certain policy choices off the table.” District of Columbia v. Heller, 554 U. S. 570, 636 (2008); see also Hohfeld, Some Fundamental Legal Conceptions As Applied in Judicial Reasoning, 23 Yale L. J. 16, 30, 55– 57 (1913) (recognizing that an immunity implies a corresponding lack of power). Fourth Amendment rights could be restated in terms of governmental power with no change in substantive meaning. Thus, the mere fact that the First Amendment begins “Congress shall make no law” does not broaden a citizen’s ability to sue to vindicate his freedoms of speech and assembly.

A very famous constitutional scholar once described the Constitution as “charter of negative liberties. It says what the states can’t do to you. Says what the federal government can’t do to you but doesn’t say what the federal government or state government must do on your behalf.” Of course, that scholar’s name is Barrack Obama. And, this time at least, he is exactly right!

The first eight amendments of the Constitution are all restraints on government, no matter how they are styled. The Constitution does not grant people the rights of free speech, free exercise, the right to bear arms, or the freedom from searches and seizures. These rights pre-exist 1787. (I’ll table for a moment the discussion of whether these are the sorts of rights our creator endows us with). It makes no difference, as Justice Thomas explains, that the First Amendment is framed “Congress shall make no law” and the Fourth Amendment is framed in the passive voice that the right against “unreasonable searches and seizures, shall not be violated.” Both framings–in the active and passive voice–place limitations on the power of Congress to act.

Justice Breyer’s ill-conceived dicta–totally unnecessary to support an otherwise reasonable opinion–fundamentally misconceives the structure of the Bill of Rights. The Court should strike this paragraph before it makes its way into the U.S. Reports, lest it be relied on in different contexts to interpret the First or Fourth Amendments in a dangerous way.