The Bill of Rights, FBI vs. APPLE – Part 1

By Roger J. Katz, Attoney at Law and Stephen L. D’Andrilli
In this three part article, the Arbalest team examines what is truly at stake in the demand by the FBI that APPEL break is iPhone encryption.



Bill of Rights 1911
If Americans are to place their faith in something of value, that faith should rest first and foremost in the Bill of Rights.
Arbalest Quarrel
Arbalest Quarrel

New York, NY  -(  A sovereign nation cannot long prevail among other sovereign nations without a central government. This is axiomatic.

The founders of our Republic certainly knew this. But the founders of our Republic also knew that a nation’s central government is invariably at odds with individual liberty.

A natural tension exists between government on the one hand and the rights and liberties of the citizenry, on the other. The Constitution the founders drafted for the American people is indicative of and serves, at once, as recognition of the conundrum our founders faced: that a strong central government is incompatible with individual liberty. A strong central government would eventually destroy individual liberty by amassing power unto itself at the expense of individual liberty unless a nation’s constitution places express curbs on such accumulation of power and unless the citizenry of a nation remains ever vigilant that those curbs are stringently adhered to.

The founders of our Nation dealt with the conundrum by creating a Constitution that embraces three fail safe devices. The founders hoped and trusted that these three fail safe devices would operate as an effective counterforce against the destructive impulses of government to acquire ever more power for itself and, in so doing, reduce, or end altogether, the exercise of individual rights and liberties.

The three fail safe devices are:

  • one, a three branch system of government;
  • two, clear delineation of and demarcation of the powers each branch is permitted, lawfully, to hold and wield;
  • three, a Bill of Rights.

The three branch system of government precludes outright concentration of legislative, executive, and judicial functions in any one person or group of people. Each branch serves to check the power of the other two branches. This is what is meant by the phrase “checks and balances.”

The “Separation of Powers” doctrine is also a feature of our three branch system of Government. The “Separation of Powers” means that each branch of our central – federal – Government has its own distinct function with no overlap or, at worst, with very minimal overlap.

The delineation of powers each branch wields prohibits both the amassing of additional powers by that branch of Government and the encroachment of one branch of Government on the purview of the other. Each branch of Government has, then, through the exercise of a specific function, a limited set of powers. If the Constitution does not prescribe a specific power for that branch of Government, such power cannot be lawfully exercised by that branch.

Lastly, the Bill of Rights secures for the people not only specific enumerated rights and liberties but reserves to the people unenumerated rights as well. The Ninth Amendment to the U.S. Constitution provides:

“The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people.” And, the Tenth Amendment provides that “powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people.”

The powers of our central – federal – Government are, then, limited, since the Constitution sets forth the powers each branch of Government may wield, consistent with the primary function of each branch. The powers residing in the States and in the people, on the other hand, are essentially open-ended. Moreover, the rights and liberties of the people are unbounded as they include both specific, especial enumerated rights and liberties and unenumerated rights and liberties. Importantly, the rights and liberties of the people, as codified in the Bill of Rights do not stem from the federal Government. They are neither a privilege bestowed by Government onto the people; nor are they a license issued by Government to the people. The rights and liberties are considered by the founders of our Republic to be preexistent in the people. The rights and liberties of the American people are neither created by government nor fashioned by the founders. The Bill of Rights simply codifies natural rights and liberties that are part of humanity that our federal Government – unlike the central governments of most other nations – are required, under our Constitution to respect.

Our Bill of Rights is, in essence, a codification of and assertion of the fundamental rights and liberties preexistent in the people. That fact is clear from the context of the U.S. Constitution. Since the federal Government is not the source of those rights and liberties, the federal Government cannot lawfully circumvent those rights and liberties. If the Government were to do so, the Nation, as a free Republic, as our founders intended, would cease to exist. If anything at all remained of our Nation, it would be but ornamental coverings, trappings. The Nation – our Nation – would be merely a dried husk, an empty shell.

Our Forefathers Fear That The Federal Government  Might One Day Encroach Upon The Rights And Liberties Of The American People Was Well-Founded

The American people are aware, today, as the founders of our Republic had long ago feared that the Nation’s federal Government’s true and natural impulse – and that of many State Governments, as well, and often at the behest of the federal Government – is to encroach on the rights and liberties of the people. We see this as the federal Government slowly but insistently encroaches on and infringes the right of the people to keep and bear arms. We are seeing State and local governments also encroaching on and infringing the right of the people to keep and bear arms. The infringement of the fundamental right of the people to keep and bear arms, is, at once, noticed by the people. For, the American people either have access to firearms or they do not. They either exercise complete control over their firearms or they do not. The right to keep and bear arms, as codified in the Second Amendment, as with all rights and liberties, is intangible, but the expression of the right – possession and ownership of the firearm – is not. A firearm is a tangible, physical object. The loss of one’s firearms to government is immediately and emphatically felt by the gun owner.

Apple CEO Tim Cook
Apple CEO Tim Cook posted a message on the company’s website, saying they would be fighting a court order to hack an iPhone as part of the San Bernardino terror investigation. Cook pictured above holding an iPhone 6 in September 2014.

The loss of other rights, however, such as the loss of “the right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures,” may not be immediately and emphatically felt because both the right and, in many instances, the expression of that right are both intangible.

Yes, the seizure of one’s papers, or smart phone, or personal computer amounts to the capture of physical items. But, the content is what the government is really after and content is intangible. If government can “lift” that content without even obtaining the physical hardware, unlawful invasion of the privacy right in that content is lost.

Loss of “the right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures,” may not be recognized but it does exist and it is no less critical to the safeguarding of a free Republic than is the Second Amendment “right of the people to keep and bear arms.”

All of our rights and liberties, as codified in our Bill of Rights, are critical to our survival as a free Republic!

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Click here to read Part Two (2)

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HMLA-167 Warrior

Stand fast and stand strong Mr. Cook.


All kinds of liberties against our privacy have been taken during times of war. After attacks on Pearl Harbor and 9/11, herds of people were rounded up an put in camps, for the security of our nation. Torture has been used with the knowledge consent of the nation. Now the feds want to “open” a dead combatants phone and there is protest. Bull crap.


I trust that tis won’t be taken as quibbling, but in the instant case, Apple is not providing some sort of “key” that can be used to intercept, and subsequently decrypt, a user’s information.
Physical custody of the phone is necessary.

That being said, Apple is *still* correct in resisting this unlawful order, as it is in fact a “taking” of Apple’s time,talent, and treasure, since they are being required to develop something that does not currently exist.

THAT is the crux of this case, IMO.

Wild Bill

You are correct, sir, but spit it out, the something is software. We all know how difficult and expensive it is to develop new software, and that puts the federal court order in perspective. The FBI wants Apple to work for them developing software.
What did the FBI’s attorneys tell the federal judge, in the first place, to get the court order?