The Breakfast Table

How the founders were wiser than modern judges.

Entry 19: Constitutional lessons.

The problem with the Fourth Amendment.

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Mark, I promised earlier to discuss the Fourth Amendment. Perhaps I can also, in the process, respond to Dick’s pointed questions to me. (I am still hoping he might, in turn, answer the questions I posed to him.)

Dick asked whether I have “succeeded in changing judicial behavior.” Well, I am doing what I can, and I am grateful for the sustained and respectful judicial attention that my scholarship has received from justices and judges across the spectrum. (Much of my work has been directed at institutions other than courts, and here, too, I am pleased by the response. For a few metrics, both judicial and nonjudicial—Supreme Court citation numbers, congressional invitations to testify, presidential commendations, and the like—see here and here.)

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Mark, before we get to the Fourth Amendment, let me say a couple of things about two other doctrinal areas that have been hot topics of late. First, voting rights. The Constitution speaks of the right to vote in no fewer than five clauses—all five postdating the Civil War. I have written lots about the text, history, structure, and context of these provisions and about closely related issues of legislative and electoral-college apportionment. Justices from across the spectrum—including Justice Ruth Bader Ginsburg in her epic dissent in the 2013 Shelby County v. Holder case, and Justices Samuel Alito and Clarence Thomas in this term’s Evenwel v. Abbott decision—have apparently found my analyses useful and have seen fit to cite them favorably. In recent years, Dick has begun to see the light on voting rights and the grave threat posed to them by voter ID laws and other partisan attempts to make voting more difficult than it should be. Unfortunately, by his own admission, Dick failed to see the light earlier in the 2007 case of Crawford v. Marion County when he wrongly upheld certain unjustified voter ID laws. (When the case reached the Supreme Court, the majority followed Dick’s lead, alas.) In 2013, Dick admitted that he goofed in Crawford, and he is to be commended for this candid confession of error. More recently, he wrote a widely hailed dissent reflecting his newfound wisdom. By contrast, I and many other voting scholars were right all along on this topic, and I believe we were right precisely because we had studied with care the constitutional history of voting rights in America, including all five amendments, the related Republican Government Clause, the hugely important and interrelated Voting Rights Act of 1965 and its legislative history, and companion Warren court cases elaborating the relevant constitutional principles. So here is one concrete illustration of how a wise judge (or a professor, or citizen seeking wisdom) can become wiser by carefully studying some of the very constitutional sources Dick now pooh-poohs.

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Next, consider the Second Amendment and the related provisions of the 14th Amendment making the Bill of Rights applicable against state and local governments. Although I have never owned a gun and I favor a strong package of sensible gun-control laws, I have explained in great detail in books, in scholarly articles, and even right here in Slate that the relevant constitutional materials do support a federal constitutional right to have an ordinary handgun in one’s home for self-protection. When I first started writing, my scholarly views ran counter to the mainstream of judicial and academic thought. Today, many scholars have embraced views similar to mine, and our scholarly views have become settled judicial doctrine. In the most recent Supreme Court decision to address the issue in detail—a decision from Dick’s hometown, coincidentally—my scholarship was favorably cited by justices on all sides: six times by Alito in his majority opinion, twice by Thomas in concurrence, and once by Justice Stephen Breyer in dissent. Here, too, Dick’s track record is more mixed. Several of the gun-related things that he has said casually from the bench and has written in pop pieces over the years reflect a lack of familiarity with the relevant constitutional history. Not just founding history, but Reconstruction history and the history of recent state constitutional provisions that are pertinent in considering both enumerated and unenumerated rights in America. So, here is another example of why it pays to study with care some of the very materials Dick is now mocking.

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Which brings me, Mark, to the Fourth Amendment. The Fourth Amendment simply does not provide for the exclusion of evidence except, perhaps, in very special circumstances. This point is clear from its text, history, and structure. The exclusionary rule is also suboptimal deterrence policy: It provides windfalls to the guilty and no remedies to the innocent. If the cops know you are innocent, the exclusionary rule is no help. We need tort law and property law to protect persons’ rights to themselves and their stuff; and once we have the proper set of property and tort laws in place—laws against unreasonable government officials and agencies—the exclusionary rule is unnecessary and affirmatively mischievous. Crime victims are hurt by the exclusionary rule, and needlessly so. Oh, and the seeming paradox that is giving you whiplash, Mark—a court that this term read Fourth Amendment rights broadly and the remedy of exclusion narrowly—is no paradox at all. Judges will be more willing to construe Fourth Amendment rights broadly if the extreme sanction of exclusion is used sparingly or not at all: Precisely because the “remedy” of exclusion is so troubling, many judges are inclined to deny that the Fourth Amendment was violated in a close case where an obviously guilty criminal defendant is seeking a get-out-of-jail-free card. Conversely, judges will be more willing to read the Fourth Amendment’s rights guarantees broadly if the beneficiaries of these rulings are in general innocent civil plaintiffs rather than guilty, and perhaps violent, criminal defendants.

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Here too, we can learn from the founders, who were wiser than modern judges have been in acting on their own steam and without proper constitutional support for their adventures. In general, the court has been moving in my direction over the last two decades, trimming back exclusion using a wide variety of doctrines. My views about Fourth Amendment rights and remedies have not always prevailed in court, but in five Fourth Amendment cases over the past quarter-century, justices from across the spectrum have favorably invoked my scholarly work.

I am hardly the only scholar to have written on Fourth Amendment rights and remedies. In particular, my work in this area owes a special debt to the late Telford Taylor’s scholarship. (Interestingly enough, Dick, Taylor was a scholar in the Ben Kaplan tradition, having practice law for many years before joining the academy; I too wish there were more Telford Taylor types in today’s academy.) Taylor’s scholarship was prominently mentioned this term by Alito in Birchfield v. North Dakota, a case about blood and breath testing of suspected drunk drivers. My own Fourth Amendment scholarship also explicitly builds on an excellent 1981 article, “Rethinking the Fourth Amendment,” that was written by a member of the University of Chicago law faculty at the very same time that you were still on the full-time faculty, Dick! The article, citing Taylor again and again, makes some truly powerful points about constitutional text and history—some of the very sources you have said are virtually irrelevant. Over the years, this article has in fact also been cited a couple of times by the Supreme Court—which also cuts against your idea that the court pays no attention to law professors. The article was written by a law professor named Richard A. Posner. Any relation?

Dahlia, I still owe you a few thoughts about Justice Anthony Kennedy’s affirmative action opinion, so please stay tuned.

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