Supreme Court Review. . . .

The Framers of the Constitution and Bill of Rights did not believe that they were creating new rights for individuals. They understood, in accord­ance with the teachings of the Declaration of Independence, that human rights exist by nature and that it is the duty of government to secure the citizens in their possession of those rights.

The Bill of Rights does not purport to be a list of all the rights possessed by the people. Indeed, the Ninth Amendment specifically states that there are rights retained by the people but not enumerated in the Constitution. But the first ten amendments to the Constitution do enumerate certain rights. Some provisions recognize natural rights—rights of the people (such as the right to keep and bear arms)—and proscribe governmental interference with them. Other provisions spell out procedural rights, not belonging to man in a state of nature, but incidental to political life; trial by jury, access to legal counsel, protection against double jeopardy, etc.

In this scheme, the Fourth Amendment is unique. The Fourth Amendment begins by identifying one of the “rights of the people”: the right to be secure in one’s person, house, papers, and effects. This is a basic statement of the natural human right of private ownership of property, a right that is prior to all government. The amendment then spells out a perceived threat to that natural human right: unreasonable searches and seizures of individuals and their private property by government officers. One of the lessons learned by Americans in the period preceding the Revolution was that personal liberty and private property could not be secure while government agents were free to ignore them on the pretext of enforcing the law.

The balance of the Fourth Amendment is procedural. It provides that arrest warrants and search warrants must particularly describe the place to be searched and the person or thing to be seized. That a government agent might not conduct a search or effect an arrest without the authority of a warrant issued by a neutral magistrate was an aspect of rule of law inherited from the English legal system. However, royal officials in the American colonies had long relied on general warrants (some­times in a form called “writs of assistance”) author­izing the bearer to search anywhere and to seize anyone or anything in the pursuance of his duties. The procedural guarantee of particular warrants was intended to prevent this abuse.

The Fourth Amendment does not itself provide any mechanism for its own enforcement. In the twentieth century the federal courts began, as a rule of evidence, to exclude from consideration in a criminal trial, any material seized in violation of the Fourth Amendment. In the 1949 case of Wolf v. Colorado, the United States Supreme Court held that the provisions of the Fourth Amendment are binding on state officials by virtue of the Fourteenth Amendment; in Mapp v. Ohio, decided in 1961, the Supreme Court imposed the federal evidence standard on the state criminal courts. This proce­dural rule, the “exclusionary rule,” thus became the judicially created remedy for violations of the Fourth Amendment. Twenty-three years later, there are professors of law, and even federal judges, who are unaware that the exclusionary rule is not part of the Fourth Amendment, and who probably cannot think of the amendment apart from the exclusionary rule.

From the first it has been clear that the exclu­sionary rule is a less-than-ideal device for enforcing the right to security in person and property. The most glaring failure of the rule is that it provides no protection whatever to innocent victims of unreasonable searches and seizures. Only the guilty can hide behind the exclusionary rule, because only against the guilty is there evidence to be excluded. Critics of the rule often speak as if the rule were too broad in its application; the real problem is that it is too narrow in its protection.

Another shortcoming of the exclusionary rule is its underlying assumption that the prosecution of criminals and punishment of crime are interests unique to the law-enforcement community. The rationale of the rule is that setting felons free punishes the police. In fact, of course, this is far from true: the victims of crime, actual and potential, have an interest in the conviction of criminals; society at large, which expects its criminal laws to be obeyed, has an interest in the conviction of criminals. But police officers are more interested in the identification and apprehension of suspects than in their conviction. Nevertheless, whether because of professional pride or because of pressure on the police from prosecuting attorneys, the exclusionary rule does have a certain deterrent effect on police misconduct in the search-and-seizure area.

In the field of criminal law, which, in contempor­ary America, is a branch of constitutional law, the exclusionary rule is perhaps the most controversial topic. Many of the most important cases decided during the 1983-1984 term of the Supreme Court concerned the applicability and scope of the exclu­sionary rule. To follow the Court’s decisions in the popular press would be to learn that the Court had “narrowed” the exclusionary rule, or carved out “exceptions” to it, or even “emasculated” it. But such a view is based on mistaken premises: It presumes that exclusion of evidence is the norm and admission of evidence is the exception. In fact, the exclusionary rule applies only in circumstances similar to those obtaining in previously decided cases. In each new set of circumstances that arises the Court must decide whether or not to extend the scope of the exclusionary rule. For the most part, in the 1983-1984 term, the Court decided against extending the rule.

One new set of circumstances to come before the Court involved evidence uncovered as the result of improper procedures that would inevitably have come to light in any event. Where two or more courses of action are being followed simultaneously by law enforcement agencies, and each course inde­pendently would have led to discovery of the same evidence, must the evidence be excluded if the course that reaches the evidence first is tainted by misconduct? The Court faced this set of circum­stances in Nix v. Williams and held that the evidence was admissible.

Robert Williams kidnapped and murdered a ten-year-old girl shortly before Christmas, then deposited her body in a ditch under an Iowa snowbank. While transporting Williams after his arrest, a police officer lectured the murderer on the necessity of providing the child a Christian burial; Williams, moved, directed the police to his young victim’s shallow, frozen grave. Williams’s confession was introduced in evidence at his trial, and he was convicted. In 1977, in Brewer v. Williams, the United States Supreme Court overturned Williams’s convic­tion on the ground that he did not have an attorney present when he made his statement.

Retried and reconvicted, Williams again appealed to the Supreme Court, this time arguing that the physical evidence of the victim’s body should not have been admissible in evidence. The police had found the body by following Williams’s directions; but Williams’s directions were provided when he had no attorney present, and thus, for legal pur­poses, were never provided. The police, therefore, had no “probable cause” to look for the body where they did. On the other hand, hundreds of searchers were beating the countryside looking for the tiny corpse, and, in any case, the body would have been uncovered when the snow melted in the spring.

Was the evidence, which must surely have come to light, to be excluded because the particular way in which it did come to light later proved to be legally unacceptable? In Nix v. Williams the Supreme Court held that such evidence need not be excluded. If discovery of the evidence was inevitable, that is, if it would have been found even without the objectionable police conduct, then such evidence is admissible. The Court refused to extend the exclusionary rule to those circumstances.

In New York v. Quarles, the Court faced a set of circumstances in which a police officer had to choose between the safety of the public and the nice legalities of criminal procedure. The suspect was carrying a loaded gun, and the policeman dis­armed the suspect before advising him of his rights in accordance with Miranda v. Arizona (1966). At the trial, the gun (and certain remarks made by the suspect) were introduced as evidence.

The Supreme Court had to decide whether the exclusionary rule should have been invoked to keep that evidence out of court. In defining what the popular press called the “Public Safety Exception,” the Court held that when a police officer has a reasonable belief that a suspect poses a danger to the public, he may take appropriate action to remove that danger prior to complying with the Miranda rules. In such cases, the exclusionary rule does not apply.

Probably the most controversial exclusionary rule decision of the 1983-1984 term was United States v. Leon. There the Supreme Court faced the question of the applicability of the exclusionary rule in circumstances where the police had an apparently valid search warrant that later proved to be defective in some respect. More than any other recent case, Leon went to the heart of the question of the character of the exclusionary rule.

The majority of the Justices recognized that the exclusionary rule is a judicial creation, and a less than adequate one at that. For the majority, the key to its applicability was its effectiveness in precluding unreasonable searches and seizures. Justice White, who wrote the majority opinion, referred to the “deterrent effect” of the rule, although the deterrence may in reality stem from no more than a practical aversion to wasting time and effort. Unlikely as it is that any Supreme Court Justice would flirt with the notion of natural right, the majority’s position is consistent with the Framers’ understanding that security of person and property was a substantive human right requiring special protection.

The dissenters (Brennan and Marshall) took a radically positivist position. The declaration of the Fourth Amendment that the people have a right to be secure in their persons and property has no meaning for the dissenters; the entire amendment is understood as procedural, not substantive. More­over, they rejected any distinction between the amendment and its interpretation and application by the courts. Brennan and Marshall therefore claimed that the exclusionary rule was identical with the Fourth Amendment. Far from being intended to protect the security of person and property, the Fourth Amendment, as they under­stand it to have been interpreted by the courts, is merely one more procedural barrier to be passed in the prosecution of criminal defendants.

The contrasting premises about the amendment and the exclusionary rule are clearly revealed in the contrasting approaches to the facts of Leon. The evidence involved was seized pursuant to warrants issued by judges in appropriate proceedings. The warrants were signed by the magistrates and issued to police officers who subsequently served them. The search warrants were formally defective: one was issued to authorize a search for evidence of murder, but was issued on a form intended for drug searches, and so contained inappropriate wording; one referred to attached documents, and the documents, though extant, were not in fact attached. There seems to have been no question that the policemen lacked probable cause for their proposed searches and seizures or that the magistrates intended other than to issue valid warrants. The police officers had done all that was required of them: They had presented their probable cause to a neutral magistrate and had forborne to conduct searches and seizures until they had warrants in hand. The policemen, in good faith, acted upon warrants issued after proper procedures were followed; lacking the legal training the magistrates presumably possessed, they had no reason to doubt the validity of the warrants they served.

What, then, should have been the status of the evidence seized by the police officers under authority of those warrants? The majority approached the question from the standpoint of the deterrent effect of the rule: How would excluding the evidence promote the security of person and property? How would it deter law enforcement officials from con­ducting unreasonable searches and seizures? Obvi­ously, extending the exclusionary rule to this class of evidence would have no value in the enforcement of the substantive guarantees of the Fourth Amendment.

The dissenters saw matters differently, of course. Assuming that the only meaning of the Fourth Amendment is procedural, affecting the admissibility of evidence in criminal trials, Brennan and Marshall thought the defects in the warrants to be decisive. Even to consider the substantive question was to weaken the procedural barrier, in their opinion.

The tendency of the Supreme Court in consti­tutional cases in the twentieth century has been to replace the protection of substantive rights founded on natural equality with procedural rights grounded in judicial (or legislative) fiat. The refusal of the majority of the current Supreme Court to accept the Brennan-Marshall approach to the Fourth Amendment and the exclusionary rule is therefore a cause for optimism.

Unfortunately, in areas other than search-and-seizure the Court gave little cause for optimism in its 1983-1984 decisions.

Early in the term, in Grove City College v. Bell, the Court limited the application of “Title IX,” the statute prohibiting sex discrimination in federally funded education programs, to programs actually receiving federal funds. That was the good news. Preliminary to that, however, the Court held that any federal assistance to individual students (vet­erans’ benefits, social security, guaranteed student loans, etc.) subjected the institutions the students attended to the full range of federal regulations. The implications for the future are unnerving. Even the most minimal and indirect federal financial involvement with a private institution seems to form the basis for control of that institution by the federal bureaucracy. The constitutional authority for this is Congress’s taxing and spending power—if Congress appropriates federal taxpayers’ money, it is entitled to say how the money will be spent. Even as the commerce power furnished a pretext for federal regulatory legislation in the last genera­tion, so the taxing and spending power seems to be the pretextual authority for Big Government in the 1980s.

Congress has not been reluctant to take the hint from the Supreme Court. During this same term Congress has extended federal regulatory power over the use of local public school classrooms and over state minimum drinking ages by tying such regulation to the appropriation of funds for educa­tion and for highway construction. Grove City, then, heralds a continued retreat by the Supreme Court from its role of keeping the federal govern­ment within the limits set by the Constitution.

A similar retreat from its duty to protect liberty and property against state intrusion was evident in Hawaii Housing Authority v. Midkiff. The case involved the decision of Hawaii to engage in the kind of “land reform” American do-gooders used to impose on banana republics. The Constitution recognizes the right of government to condemn and take (after just compensation) private property that is required for public use. “Public use” was under­stood, until quite recently, to mean use by the public; that is, use as a road, a park, an arsenal, or a public building. “Public use” was very different from “public purpose,” the standard required for the imposition of government regulation under the “police” power.

A statute in Hawaii authorized the condemnation by the state of large residential landholdings for immediate resale to the lessees then residing on the land. All of the costs of the condemnation proceedings were to be borne by the lessee-purchasers. At no time was the property put to public use-it passed from one private owner to another, politically more favored, private owner. Nevertheless, the Supreme Court upheld the Hawaii statute, and, adopting the aberrant interpretation of the Court’s erstwhile eccentric, William O. Douglas, abolished the distinction between the police power and the awesome power of eminent domain.

As the 1984-1985 term of the Supreme Court opens with a trio of cases dealing with the separation of church and state, it is instructive to note how the Court dealt with the main church-state case of the last term. Lynch v. Donnelly raised the question of the constitutional propriety of the municipal nativity scene erected in Pawtucket, Rhode Island. The nativity scene was purchased and maintained at public expense as part of the town’s holiday decorations. The Supreme Court, in a 5-4 decision, held that there was no violation of the First Amendment. But the Justices did not hold that the ban on establishment of religion was applicable (as the Framers originally intended) only to the federal government. And they did not hold that symbolic speech about religion was entitled to the same protection as symbolic speech about war or the environment.

In Lynch, to the dismay of believers and non-believers alike, the Court held that figures repre­senting the infant Jesus and the Holy Family were not primarily religious in their significance. Instead, they merely represented the historical and cultural millieu of American society and fostered the com­mercial well-being of the merchants of Pawtucket. The same Court that held during the previous term that prohibiting taverns in the vicinity of church and school buildings constituted an establishment of religion held during this term that erecting a religious shrine at public expense was a constitu­tionally acceptable acknowledgment of cultural heritage.

In reflecting upon the Supreme Court term recently concluded and in contemplating the term just beginning, we must wonder, with Abraham Lincoln, whether we have ceased to be our own rulers or whether, on the contrary, we have resigned our government into the hands of an eminent tribu­nal that, for all its eminence, seems so often to lack the common sense of the American people.