{"id":54314,"date":"2016-09-30T11:27:00","date_gmt":"2016-09-30T16:27:00","guid":{"rendered":"https:\/\/content.findlaw-admin.com\/ability-legal\/supreme\/legal-commentary\/washington-yankees-in-king-arthurs-court.html"},"modified":"2016-09-30T11:27:00","modified_gmt":"2016-09-30T16:27:00","slug":"washington-yankees-in-king-arthurs-court","status":"publish","type":"supreme","link":"https:\/\/supreme.findlaw.com\/legal-commentary\/washington-yankees-in-king-arthurs-court.html","title":{"rendered":"Washington Yankees In King Arthur’s Court"},"content":{"rendered":"\n
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WASHINGTON YANKEES IN KING ARTHUR’S COURT: The Supreme Court Journeys To Eighteenth Century England To Define The Rights Of Twenty-first Century Americans <\/h1><\/td>\n <\/tr>\n

By MICHAEL C. DORF<\/h2><\/a><\/td>\n <\/tr>\n

Wednesday, May. 02, 2001<\/td>\n\n <\/tr>\n <\/table>\n \n

\tMany Americans were no doubt surprised to learn recently that the Fourth \nAmendment’s prohibition against “unreasonable searches and seizures” permits the \npolice to arrest them and take them to jail for committing misdemeanors such as \nnot wearing a seatbelt \u0097 even where the maximum statutory penalty is a $50 \nfine. <\/p>\n

Almost as disturbing as the result in Atwater \nv. Lago Vista<\/i><\/a>, however, is the reasoning process the majority used to \narrive at it. The crucial factor in the majority opinion was the determination \nthat eighteenth century<\/i> English and American statutes and precedents generally \npermitted peace officers to make warrantless arrests for misdemeanors. Consequently, \nthe Court reasoned, twenty-first century Americans have no constitutional protection \nagainst such arrests.<\/p>\n

The case is practically a primer on the pitfalls of the “originalist” approach \nto constitutional interpretation. Remarkably, the author of this primer is someone \nwho has been a foe of originalism: Justice David Souter. <\/p>\n<\/span>\n\n \n \n
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The Dispute in Atwater<\/i><\/p>\n \n

\tIn 1997, Gail Atwater was driving her pickup truck with her two small children \nin the front seat. None of the three were wearing seatbelts, a misdemeanor under \nTexas law. Rather than issuing Atwater a citation, however, Lago Vista police officer Bart Turek arrested \nher and took her to jail. <\/p>\n

The experience disturbed Atwater and traumatized her children. She ultimately \npled guilty to the seatbelt offense and paid the maximum fine of $50. She then \nsued the police department for violating her Fourth Amendment rights.<\/p>\n

\tThe Fourth Amendment, which the Supreme Court has long held applicable \nto the States via the Fourteenth Amendment, begins: “The right of the people to \nbe secure in their persons, houses, papers, and effects, against unreasonable \nsearches and seizures, shall not be violated.” <\/p>\n

An arrest, all agree, is a “seizure” of the “person.” So the question in Atwater’s \ncase was solely whether her arrest by Turek was “unreasonable.” <\/p>\n\n<\/b>

An Unreasonable Arrest?<\/p>\n \n\n\n

Atwater argued the arrest was indeed unreasonable, because the underlying offense \nis not punishable by imprisonment and involves no breach of the peace. Four Justices \nagreed with her, and thus would have ruled that her arrest violated the Fourth \nAmendment, but a majority disagreed.<\/p>\n

The majority opinion authored by Justice Souter (and joined by Chief Justice \nRehnquist and Justices Scalia, Kennedy, and Thomas) acknowledged that “Atwater’s \nclaim to live free of pointless indignity and confinement clearly outweighs anything \nthe City can raise against it specific to her case.” In other words, the majority \nrecognized that Atwater’s liberty and dignity had been unjustly invaded. Nevertheless, \nthe Justices declined to fashion a general <\/i>constitutional rule barring \narrest for minor offenses. <\/p>\n

Why not fashion such a rule? The Court provided a number of practical reasons, \nbut the heart of the opinion turned on the original understanding of the Fourth \nAmendment. That understanding, in turn, according to the Court, can be derived \nfrom the common law and statutes in force in England and America just prior to \nand at the time of the adoption of the Bill of Rights in 1791.<\/p>\n\n<\/b>

What Originalism Means<\/p>\n \n

The view that the Constitution should be interpreted to reflect the original \nunderstanding of its framers and ratifiers is known as “originalism.” While the \nterm is often invoked \u0097 sometimes to praise, and sometimes to vilify \u0097 \nits precise meaning is not often made clear.<\/p>\n

Virtually all judges and constitutional scholars agree that the original understanding \nis at least one relevant factor in constitutional interpretation. If nothing else, \nit provides useful context and a starting point for seeing how the meaning of \na provision has developed over time. <\/p>\n

But people who call themselves originalists give original understanding a more \nprominent place. For them, the original understanding is either always dispositive, \nor creates a strong presumption that can only be overcome by very powerful arguments.<\/p>\n\n<\/b>

Justice Souter, Originalist?<\/p>\n \n

The majority opinion in Atwater<\/i> adopts the strong presumption approach. \nIn an important footnote, Justice Souter’s majority opinion takes issue with the \nclaim, made by Justice Sandra Day O’Connor in dissent, that history is just “one \nof the tools” relevant to a Fourth Amendment case. According to the majority opinion, \nthere is a “heavy burden” on any litigant urging a departure from the original \nunderstanding.<\/p>\n

These are strong claims, especially coming from Justice Souter, who is not \neasily classified as an originalist. In the 1997 case of Washington \nv. Glucksberg<\/i><\/a>, for example, Justice Souter wrote a separate opinion endorsing \nthe view of the late Justice Harlan. There, he approvingly quoted Justice Harlan’s \nfamous statement that the process of elaborating constitutional rights involves \nfinding the appropriate balance between liberty and order, “having regard to what \nhistory teaches are the traditions from which [the balance struck by society] \ndeveloped as well as the traditions from which it broke. That tradition is a living \nthing.” <\/p>\n\n<\/b>

Possible Explanations for the Souter Switch<\/p>\n \n

Souter’s invocation of the “living” Constitution in Glucksberg<\/i> is anathema \nto self-styled originalists like Chief Justice Rehnquist and Justice Scalia, each \nof whom has criticized this idea. Why then did Justice Souter author an originalist \nopinion in Atwater<\/i>? <\/p>\n

One possibility is that he did so to attract the votes of the Chief Justice \nand Justice Scalia, as well as Justices Kennedy and Thomas. Perhaps thinking that \nAtwater should lose even if the Fourth Amendment is understood as a living thing, \nJustice Souter might have been willing to add arguments he did not fully believe \nin order to forge a compromise.<\/p>\n

Another possibility is that Justice Souter was simply responding to Atwater’s \nown claims. She argued in her brief that the original understanding actually supported \nher <\/i>position.<\/p>\n

Thus, it is possible that the Atwater <\/i>case does not imply Justice Souter’s \nconversion to originalism. But the express language of the opinion certainly suggests \nsuch a conversion. If true, that is terribly unfortunate, for Atwater<\/i> itself \nillustrates a number of the difficulties that plague originalism.<\/p>\n\n<\/b>

The Problem of Discretion<\/p>\n \n

Proponents of originalism contend that it constrains judges. They point out \nthat many of the issues addressed by the Constitution arouse contentious debate. \nAnd they argue that if unelected judges are to invoke the Constitution to displace \nthe policies of politically accountable actors, they should at least do so on \nthe basis of more than their own subjective values. <\/p>\n

Originalists believe that a judge who interprets a constitutional provision \nin accordance with the original understanding avoids the danger of subjectivity. \nSuch a judge relies not on his or her own views, they claim, but rather on the \nviews of those who enacted that provision. The inquiry is objective, not subjective. \n<\/p>\n

Arguments like these offer originalism as a solution to what Alexander Bickel \nreferred called the “countermajoritarian difficulty” in constitutional interpretation. \nThe difficulty, which has troubled constitutional scholars for generations, is \nthat even though we live in a democracy, our constitutional system includes a \ndistinctly unmajoritarian aspect: a life-tenured federal judiciary that can invalidate \nstatutes and other actions of elected officials. <\/p>\n

Yet originalism frequently fails at its own game of suppressing subjectivity \nand individual judicial discretion. Atwater <\/i>itself is a good example. As \nJustice Souter frankly admitted, the historical evidence about the permissibility \nof arresting minor offenders is ambiguous. Many prominent legal historians writing \nin the nineteenth and twentieth centuries took the view that traditional common \nlaw principles barred such arrests, as did no less an eighteenth century authority \nthan Sir William Blackstone.<\/p>\n

Justice Souter recognized that opinion was divided but he nonetheless concluded \nthat the weight of authority supports the police. Others may draw different conclusions. \nAnd in doing so, they inevitably exercise discretion, and act subjectively. <\/p>\n

The larger point that originalism overlooks is that many of the issues addressed \nby the Constitution were contentious even when the Constitution was adopted. The \nRevolutionary Era was a time of great social, political, and intellectual tumult \nduring which there were strong disagreements about the nature of government and \nrights. The ratification votes in some states were exceedingly close, with Federalists \nand Anti-Federalists often expressing radically different views of what the Constitution’s \ntext means.<\/p>\n

For this reason, searching for a consensus of meaning in the eighteenth century \nwill often prove more rather than less difficult than searching for a contemporary \nconsensus, because judges must rely on an imperfect historical record of a world \nthat is long gone. <\/p>\n

Professional historians differ sharply in interpreting the very same evidence. \nIt is no wonder that judges, who typically lack professional training in history, \ndo too. <\/p>\n\n<\/b>

Changed Circumstances<\/p>\n \n

Furthermore, even when judges can confidently reconstruct the past, interpretive \npuzzles abound. The world inhabited by the framers and ratifiers of the Constitution \nand Bill of Rights is profoundly different from our own. In Fourth Amendment cases, \nthis fact is particularly salient because so much of contemporary police work \nwould have been impossible in the eighteenth century, as two cases from the current \nSupreme Court term illustrate.<\/p>\n

\tEarlier this year, in Ferguson \nv. City of Charleston<\/i><\/a>, the Supreme Court ruled that, absent consent, warrantless \ndrug testing of hospital patients for law-enforcement purposes violates the Fourth \nAmendment. Unsurprisingly, none of the Justices in either the majority or the \ndissent addressed the question of whether such drug testing was generally considered \npermissible in the eighteenth century. Such an inquiry would, of course, have \nbeen fruitless, as modern drug-testing techniques were unavailable then.<\/p>\n

In Kyllo v. United States<\/i> <\/b>(a case recently analyzed by Sherry \nColb<\/a> for this site), the Court will soon decide whether using a thermal imaging \ndevice to detect heat emerging from a home constitutes a “search” within the meaning \nof the Fourth Amendment. What did eighteenth century English and American cases \nhave to say about thermal imaging? The very question is preposterous.<\/p>\n

Indeed, Atwater<\/i> itself presents a case of profoundly changed circumstances. \nAutomobiles did not exist in the eighteenth century. One might be tempted to look \nto analogies, such as the horse and buggy, but the horse and buggy played a different \nrole in eighteenth-century America from the role played in modern America by the \nautomobile, to put it mildly. <\/p>\n

Moreover, organized police forces as we now know them did not come into existence \nuntil well into the nineteenth century. During the Revolutionary Era, law enforcement \nwas a largely volunteer undertaking. Granting the police the power to arrest people \nfor minor offenses may work a much more profound invasion of personal security \nin the modern world than it would have in the days when criminals were apprehended \nby the hue and cry and the posse comitatus \u0097<\/i> that is, the volunteer \npolice.<\/i><\/p>\n

To be sure, it is not obvious which way the changed circumstances cut in this \ncase. Automobiles can travel at greater rates of speed than horses, and accordingly \none might think that the safety interest in law enforcement is greater now than \nin the eighteenth century. So too, one might think that an organized police force \nposes less of a threat of arbitrary power than a volunteer force. <\/p>\n

But the important point is that drawing analogies and distinctions is not simply \na matter of reading the historical record. The process involves subtle value judgments \nof precisely the sort that originalism is supposed to, but does not in fact, eliminate.<\/p>\n\n<\/b>

Changed Values<\/p>\n \n

Even when the evidence of the original understanding is clear, and even when \nit is simple to locate an appropriate analogy, originalism may still yield bad \nanswers because values change. <\/p>\n

For example, the people who wrote and ratified the Equal Protection Clause \nof the Fourteenth Amendment in 1868 thought it was consistent with separate spheres \nfor men and women. In the nineteenth century, and well into the twentieth, women \nwere denied the most basic rights and opportunities because their proper role \nwas understood to be that of wife and mother. Yet the modern Supreme Court has \nquite correctly held that, given modern understandings, official sex discrimination \nis presumptively unconstitutional.<\/p>\n

Here, too, the Atwater <\/i>case is instructive. The very eighteenth-century \nstatutes that Justice Souter cites as evidence of the broad arrest power could \nnot withstand scrutiny under modern vagueness doctrine. These eighteenth-century \nstatutes authorize the arrest of “vagrants,” “vagabonds,” and “night-walkers,” \namong others. Yet just two years ago, in Chicago \nv. Morales<\/i><\/a>, a majority of the Court (including Justice Souter), invalidated \na Chicago prohibition against “gang loitering” on the ground that it vested too \nmuch discretion in the police to decide who is illegally loitering, and who is \nsimply innocently standing around.<\/p>\n

Police discretion to arrest a citizen for the most minor misdemeanor is liable \nto be abused. That fact puts everyone’s liberty in jeopardy. But expanding the \nscope of arrest authority is likely to have its greatest impact on those most \nlikely to be singled out for mistreatment by the police. As the dissent in Atwater<\/i> \npointed out, the majority’s decision will therefore exacerbate the problem of \nracial profiling.<\/p>\n

Would the framers and ratifiers of the Fourth Amendment have worried about \nracial profiling? That seems unlikely. Many of them owned slaves. However, that \nshould hardly count as a reason to write the prejudices of a bygone age into our \nconstitutional doctrine.<\/p>\n

It is true that in a few instances, the framers chose constitutional language \nthat would appear to lock in their own understanding. The Seventh Amendment, for \nexample, states that the right to a civil jury trial “shall be preserved.” <\/p>\n

Accordingly, the Supreme Court has interpreted the civil jury trial right as \nco-extensive with the jury trial right in the eighteenth century \u0097 inferring \nthat the Constitution sought to “preserve” the right just as it was then. In light \nof changes in civil procedure, that interpretive enterprise is quite tricky, but \nat least it appears faithful to the constitutional text.<\/p>\n

For the most part, however, the Constitution does not ask us to preserve<\/i> \nthe past, but simply to make our own best judgment. The Fourth Amendment’s prohibition \non “unreasonable searches and seizures” invites us to figure out for ourselves \nwhat searches and seizures are unreasonable, not to ask what people long gone \nwould have thought about problems they never envisioned.<\/p>\n

We are enormously lucky that our forebears wrote most of the Constitution in \nlanguage that did not lock in their own view of the world. Originalism would rob \nus of one of the Constitution’s great virtues, its adaptability.<\/p>\n\n<\/b>

A Methodological Objection, Not a Political one<\/p>\n \n

\tBecause originalism tends to favor past views over present ones, it is \n“conservative” in the literal sense of the word. However, it does not necessarily \nlead to politically conservative results. <\/p>\n

For example, in the 1995 case of Wilson \nv. Arkansas<\/i><\/a>, the Court unanimously held that police must generally “knock \nand announce” before executing a search warrant at a home. This conclusion was \nbased on an evaluation of the common law of the eighteenth century.<\/p>\n

\tThe fact that originalism can be used to produce liberal as well as conservative \nresults does not, however, justify the leading role the Court gave to historical \narguments in Wilson <\/i>or in Atwater. <\/i>Any sincere method of constitutional \ninterpretation can produce a variety of results. But a method such as originalism \nthat places so much weight on the past is likely to miss many of the most important \naspects of contemporary problems.<\/p>\n

\tOriginalism is a seductive philosophy because it offers judges the possibility \nof resolving difficult cases without making difficult choices. Ultimately, however, \noriginalism does not deliver on its own promises, and the promises it makes are \noften not worth keeping. In the words of the late Justice William Brennan, originalism \n“is arrogance cloaked as humility.” <\/p>\n<\/span> \n\n

\n

\n\n\n<\/a>\nMichael C. Dorf, a FindLaw columnist, is Vice Dean and Professor of Law at Columbia University. He teaches Constitutional Law, among other subjects, and is co-author, along with Laurence H. Tribe, of the book On Reading the Constitution<\/u>\n\n\n

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