Reaching the Forbidden End

"The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized."

-oOo-

This brief account explains how the Supreme Court eviscerated the Fourth Amendment.

On 15 December 1921, Federal Prohibition Agents were patrolling the highway between Grand Rapids and Detroit when they noticed the Carroll brothers' car headed in the opposite direction.  Two months earlier, federal agents had unsuccessfully attempted to purchase contraband liquor from the brothers who were suspected of bootlegging.  The agents u-turned, stopped the car and arrested John Carroll for violating the Volstead Act.  During a search following the arrest, the agents seized 68 bottles of whiskey.

In Carroll v. United States (1925) 267 U.S. 132, the Supreme Court upheld the search on the grounds that there was "a necessary difference between the search of a store, dwelling house or other structure in respect of which a proper official warrant readily may be obtained, and a search of a ship, motor boat, wagon or automobile, for contraband goods, where it is not practicable to secure a warrant because the vehicle can be quickly moved..."    The Fourth Amendment, the Court said, was to be construed "in a manner which will conserve public interests as well as the interests and rights of individual citizens."  So long as the police had probable cause for their search and seizure, the procurement of a warrant was not necessary.

Justice McReynolds, a Presbyterian teetotaler, anti-smoker and arch-conservative, dissented.

"The damnable character of the 'bootlegger's' business should not close our eyes to the mischief which will surely follow any attempt to destroy it by unwarranted methods. 'To press forward to a great principle by breaking through every other great principle that stands in the way of its establishment; . . . to procure an imminent good by means that are unlawful, is as little consonant to private morality as to public justice'."

McReynolds denied that there was any legal basis for exempting vehicles from the warrant requirement and denied that the previously attempted sting gave rise to probable cause two months later.  He reminded the majority that "If persons can be restrained of their liberty, and assaulted and imprisoned, under such circumstances, without complaint or warrant, then there is no limit to the power of a police officer" and nothing is left of the Fourth Amendment.

Carroll was the seminal case in the subsequent eighty year shredding of the Fourth Amendment by the Supreme Court.  Like any truly seminal case, all the festering poison that ultimately hatched out lay in Carroll's poisonous kernel.

The poison was a compound of three toxic concepts: (1) a spurious distinction between persons and places; (2) the substitution of suspicion for probable cause; and, most fundamentally, (3) the notion that the Fourth Amendment could be recalculated ad hoc so as to account for Government interests. Over the next eighty years, in a plethora of factual scenarios, the Court would repeatedly use these toxic concepts to whittle the Fourth Amendment down to the size and consistency of a chewed-on tooth pick.

Dispensing with Warrants

Carroll's distinction between buildings and vehicles was sucked by spurious analogy from the special powers of customs agents to search vehicles and baggage at ports of entry. However, customs searches are sui generis. No authority has ever held that customs agents require warrants or even probable cause to search bags or vehicles at entry points into the country. But a rule for what takes place at ports of entry cannot set the standard for what takes place in the interior of the country; for, if it did, then the Fourth Amendment would be utterly meaningless since anyone could be searched not only without a warrant but also without any specific probable cause.

Carroll's analogy was not only spurious, it was also an historical anathema because one of the principle grievances which triggered the American Revolution had been the use of general customs warrants to stop vehicles, search homes, interrogate persons and seize contraband and uncustomed goods, wherever found, without limitation and without specific cause.

As an accepted mode of construction, the Constitution has always been interpreted in light of English and Colonial law existing at the time it was drafted since this was the legal and political context in which various words and phrases were used.  At the time of its adoption and continuously since, the only exception to the Warrant Requirement, apart from customs searches, was the exigent circumstance of an observed (not merely suspected) felony being committed in an officer's presence.

The Founding Fathers knew all about contraband rum runners like John Hancock.  They were not Panglosian morons. Nevertheless, they made the prior obtaining of a judicially reviewed and issued warrant a pre-requisite for any search or seizure.  They did so because, without the warrant requirement, there is no limit to the power of a police officer.  The fact that police conduct may be disapproved post hoc does not mean that it is curtailed a priori.

After many permutations over the course of the century, Carroll's first toxic concept reached its poisonous fruition in Segura v. United States (1984) 468 U.S. 796, in which the Court held that a non-moving dwelling may be seized by the police until they are able to secure a warrant for its search. 

In that case, federal drug enforcement agents had probable cause to believe that Segura was selling drugs out of his home. They arrested him outside his apartment which they then entered and, without touching anything, "froze" the premises from within until the following day when they obtained a warrant authorizing further search and seizure. 

The Court reasoned that, although a house, unlike a vehicle, cannot disappear into back roads and by-ways, evidence within it can be destroyed and is, in that sense, just as "movable" as a car.  In this regard, Americans will be pleased to learn that there is a vast compendium of constitutional jurisprudence on flushing toilets. The compendium reached its culmination in Segura which held "that securing a dwelling, on the basis of probable cause, to prevent the destruction or removal of evidence while a search warrant is being sought is not itself an unreasonable seizure of either the dwelling or its contents."

In so holding, Segura dispensed with any vestigial and bothersome notions concerning "exigent circumstances" such as facts giving rise to a reasonable belief that evidence was about to be imminently flushed or destroyed. The Court's majority explicitly accepted that no exigent circumstances had existed at the time the police entered the apartment.  Segura's  "freeze and seize" rule was justified by the need to prevent merely the possible, hypothetical, destruction or removal of evidence.  Of course any evidence anywhere can possibly be destroyed or removed and, on that basis, any building can be secured and seized without a warrant, just as the Carroll brother's car.

Lowering the Bar

The second of Carroll's poisons concerned the meaning of probable cause.

Unlike their Continental counterparts, English and American jurists tend to cultivate ambiguity rather than precision.  As a result there has never been a very precise or clear treatment of the difference between hunch, suspicion and probable or reasonable cause.  The ultimate result is that the fundamentally effective requirement for a search ("probable cause") has remained a question of judicial gut feeling no matter how much the courts bandy about words like "articulable" "reasonable" "objective" and, most currently, "objective reasonableness" -- as distinct (one supposes) from "idiosyncratic reasonableness." 

(If judges actually thought about what they wrote, they might actually be embarrassed.)

To facilitate understanding of Carroll's second poison, it will help to divide an imagined line into degrees of proof,

hunch---suspicion---probable cause--proof beyond doubt

A hunch is typically thought of as a "naked belief" that someone is up to something without any articulable reason to support the conclusion. Because "up to something" could be anything it points to nothing specific either guilty or innocent. The "decision" that a guilty-something is involved is a logical toss-up.

In actuality, however, hunches do not arise out of the blue.  Both "inchoate hunches" and "reasonable suspicions" are based on generalizations and pre-judgements drawn from experiences. When a patrol officer pulls over a brand new car being driven by three black youths, he is not acting whimsically but on the coupling together of typically true generalizations; viz, that juvenile delinquents often act in concert, that blacks tend to be poor, that shiny new cars are expensive.  There is a chance  -- some possibility -- that the car is being stolen. At the same time, however, there is no fact from which it can be inferred that this car is being stolen at this time by these youths. The only thing shown is that the "suspects" fit into a conflux of very broad generalizations, sometimes called a "profile." Matching a profile raises a possibility which is not entirely arbitrary but which lacks any degree of probability (or, as the courts often say, “specificity”). There is simply no basis on which to say that the seeming inference of guilt is more true than not.

If however there had been a report that two or three black youths were recently seen in the vicinity looking into parked cars, then those facts, in those proximate circumstances, would give rise to a more specific possibility of criminality.  The inference which could be drawn on these facts is still a mere possibility but it is one which is anchored to some specific fact more concrete than the coupling of abstract generalizations.  This situation -- generalizations which have a toe-hold in actuality --  is what judges refer to as an "articulable" or "reasonable" suspicion.

The distinction between a "hunch" and a "suspicion" is so tenuous as to be almost meaningless. In both cases we are dealing with mere possibilities or (at most) extremely low probabilities.  Nevertheless, it is a distinction the Supreme Court has drawn and it is on that basis that it has been able to speak of an "articulable" or "reasonable" suspicion as if this were something substantial and more  significant than a toe-hold on the edge of probabilities.  

Probable cause on the other hand involves such a calculus of inferences from specific facts that passes from possibilities into specific probabilities -- not just a general or abstract probability based on actuarial data but a focused probability concerning a particular person, place, object and crime.  In the example given, a report that a car of matching or very similar type owned by a silver haired old lady was recently reported stolen would make it more probable than not that this car being driven by three black juveniles was stolen.

Such a probability would not end the matter, as there might always be some explanation or defence as to why these three men were in that car.  But the likelihood of criminality would be enough to warrant an arrest and trial, at which the charge could be proved beyond a reasonable doubt.

At the time the Fourth Amendment was drafted, the accepted meaning of "probable" was: "Likely; having more evidence than the contrary, or evidence which inclines the mind to belief, but leaves some room for doubt. That is accounted probable, which has better arguments producible for it than can be brought against it." (See e.g., Webster's  Dictionary (1828).) Thus, traditionally speaking, probable cause fell into the ambit of preponderating probabilities and was little different from the standard of guilt in civil cases.   What is of note  is not that this is a lesser standard than that required for criminal proof, but rather that it is still, nevertheless, a standard of guilt.

With these definitions in mind, it can be seen that the majority in Carroll set a very low bar for what was said to be probable cause.  The prohibition agents had more than a hunch based on the general fact that the road in question was known to be frequently travelled by bootleggers. Two months previous John Carroll had agreed to supply the agents with liquor although he never followed through with the deal.  There was certainly a somewhat specific possibility that on the date in question the Carroll brothers were running contraband. But as McReynolds correctly pointed out, there was no demonstrated probability that they were doing so at the time they were stopped.  Assuming that the Carroll brothers were bootleggers that fact did not mean that everywhere they drove they were spiriting whiskey from one place to another.  The arguments for and against there being whiskey under the back seat were in equipoise. In the end, Carroll  allowed a detention and arrest on a bare suspicion.

Unlike Carroll's legal rule concerning a warrant exception for vehicles, its factual finding of probable cause was case-specific and did not -- on the surface -- announce any new standard of good cause for an arrest or search.  Even so, its finding sounded an ominous gong as to how low the Court was prepared to go in order to "conserve public interests" as they put it.   McReynolds was alive to what the majority was down to: "Any law which would place the keeping and safe conduct of another in the hands of [the police] or upon mere suspicion of felony, would be most oppressive and unjust, and destroy all the rights which our Constitution guarantees."

How destructive was made clear, 43 years later, in Terry v. Ohio (1968) 392 U.S. 1 which  held that the police needed only a "reasonable suspicion" to stop and frisk people they suspected of possibly engaging in criminality.

In Terry, the police officer saw three black men hanging around on a street corner for 30 minutes in the afternoon, repeatedly looking into store windows and evidently not waiting for anyone. Deciding that they were casing the store, the officer approached the men, asked them their names and patted them down for weapons, at which point the officer felt and seized a revolver in Terry's pant pocket. Terry was charged and convicted -- not of attempted theft -- but of carrying a concealed weapon.

The Court held that the seizure of Terry's weapon was lawful because the Fourth Amendment allowed a "cursory" search for weapons where the officer "has reason to believe that he is dealing with an armed and dangerous individual, regardless of whether he has probable cause to arrest the individual for a crime." In this case, the "specific reasonable inferences" the officer was "entitled to draw from the facts in light of his experience" were that the men appeared to be casing the store and were contemplating a robbery which "it is reasonable to assume, would be likely to involve the use of weapons."  In plain English, a pat-down for weapons could be based on a hunch.

Strictly speaking, the officer's initial approach and momentary detention for questioning was not at issue in Terry.  But since a frisk for weapons cannot take place without an antecedent stop, the Court felt obliged to address that issue as well. In this regard, the Court  explained that "[w]henever a police officer accosts an individual and restrains his freedom to walk away, he has "seized" that person. ... It is a serious intrusion ... and it is not to be undertaken lightly....  In justifying the particular intrusion, the police officer must be able to point to specific and articulable facts which, taken together with rational inferences from those facts, reasonably warrant that intrusion." 

Courts and lawyers were quick to realize that Terry had in fact re-written the Fourth Amendment, formally and explicitly replacing the probable cause standard with a lower standard of reasonable suspicion applicable to vehicles and persons. The formula was given explicit imprimatur, in Brown v. Texas (1979)  443 U.S. 47, 51 which held that to detain a person for questioning officers must "have a reasonable suspicion, based on objective facts, that the individual is involved in criminal activity."

The formula sounds appealing until one realizes how significant a retreat from the probable cause standard is involved.  Despite the palaver about articulable specificity, Terry's reasonable suspicion standard was not only well below the Fourth Amendment's probable cause threshold, it was also vague in that the phrase "is involved in" was open-ended. How open-ended was illustrated by United States v. Sokolow (1989) 490 U.S. 1  in which the Supreme Court held that a "criminal profile" constituted a reasonable suspicion even absent any objective indicia of present criminality. 

In that case, Sokolow had booked a round trip flight from Honolulu to Miami including a two-day layover before returning.  He paid for the ticket in cash and travelled under a name which was different from the one under which his home phone was listed. He was dressed in a black jumpsuit, wore gold jewelry and travelled with carry on bags only.  He was said to appear nervous.  On arrival in Miami, DEA agents "grabbed" him by the arm and escorted him into an office where his bags were searched.

Dissenting, Justice Brennan pointed out that, even under the Terry standard, "before detaining an individual, law enforcement officers must reasonably suspect that he is engaged in, or poised to commit, a criminal act at that moment." [Original emphasis.] Nothing in the alleged profile-facts supported an inference that Sokoloff was then and there transporting drugs.

The Court's majority was indifferent. With remarkable candor they stated:

"The Fourth Amendment requires 'some minimal level of objective justification' for making the stop. ...  That level of suspicion is considerably less than proof of wrongdoing by a preponderance of the evidence.  We have held that probable cause means "a fair probability that contraband or evidence of a crime will be found," and the level of suspicion required for a Terry stop is obviously less demanding than that for probable cause."

Fitting a profile is simply another way of squeezing rain from a cloud. A "profile" may indicate some possibility that a person "is involved" in criminality as a propensity or practice in the way that lawyers "are involved" in law.  That is not the same as saying that the involvement is occurring at a particular moment in time.  The rest is pot-luck.

The majority were equally cavalier with the scope of Sokoloff's "stop".  Part of Terry's rationale for lowering the causal bar was that the "intrusion" of a brief stop for cursory questioning, while technically a "seizure" of the person, was a minimal detention of short duration. There was nothing minimal about Sokolow's seizure.  Far from being a hands-off investigative questioning, he was "grabbed" by the arm and "escorted" into the DEA sub-station.  By any reasonable measure he had been arrested de facto, albeit without probable cause. There was little the court's majority could do with this fact except ignore it.

A False Balance

But to ignore Sokoloff’s seizure was to ignore precisely what the Fourth Amendment prohibits. This, in turn, revealed Carroll's third poison; namely, its dictum that the Fourth Amendment should be interpreted in a manner which "will conserve public interests as well as the interests and rights of individual citizens."

As of the time Terry was decided this dictum had evolved into an accepted formula that the legality of any search or seizure depended on "a balance between the public interest and the individual's right to personal security free from arbitrary interference by law officers." (See United States v. Brignoni-Ponce (1975) 422 U.S. 873, 878, citing Terry.)

Twenty years later, even the pretence of a balance was  discarded. Soklow reversed the lower court's ruling "because of its serious implications for the enforcement of the federal narcotics laws." (Id, at p. 7.)  A constitutional limitation on the government's enforcement of its laws had been inverted into an imperative for the sake of law enforcement. 

The metamorphosis of Carroll's dictum had far-reaching implications for constitutional jurisprudence in general, which are paradigmatically illustrated by its role in the destruction of the Fourth Amendment.

In 1925, it was still too early in the day for the Court to speak in the functionalist lingo of "balancing tests" which later proliferated like weeds throughout the Garden of the Law and stupefied the minds of credulous lawyers.  These so-called "tests" were the spawn of a modernist ("sociological") jurisprudence the basic premise of which was that the Constitution needed to be "reinterpreted" in light of modern conditions.  The view propounded was that law was a "tool of social engineering" which could be used  to bring about desired socio-economic results and that law law needed to be "rationalized" so to explain away or weed out anachronisms which, supposedly, no longer made sense.

One such anachronism was the Fourth Amendment whose authors, it was said, never imagined the possibility of the modern automobile.  The Amendment required reinterpretation in light of modern conditions the Founders could not possibly have anticipated. 

This modernist condescension was pure drivel.  The Constitution was drafted with human nature in mind, not on the assumed existence of a technological status quo.  A mule-cart bearing contraband moonshine under a stack of hay, might move more slowly than a Model-T Ford with its breakneck speed of 40 mph, but it moved quickly enough to escape the issuance of a hand-scripted warrant served on horseback. What concerned the Drafters of the Constitution was the propensity of human governors to abuse their authority and power.  From the corruption of Athenian democracy to the abuses of Crown customs agents, the Drafters had ample empirical evidence of the ways, means and devices of the human heart.  On that basis, they made certain definitive decisions as to the extent and balance of individual rights, social needs and governmental powers.  What Carroll's neat and fair-sounding formula failed to answer is: whose interests take precedence? The formula ignored that, in respect of fundamental rights, the balance  was struck and set in the Bill of Rights.

Despite the pretence of scientific sounding lingo, the serious affect with which they are propounded and the gullibility with which they are swallowed, these balancing tests are devoid of any empirical objectivity -- they are not "tests" of any sort at all other than the sort of test which comes from holding finger to air.  The "tests" are simply a masquerade for making law  mean what it has to mean in order to promote some chosen concept of the public welfare. 

German jurists in the 1920's called this approach teleological jurisprudence and it became the cornerstone of National Socialist law, the purpose of which was to provide an explanatory justification for the chosen needs and asserted well-being of the National Folk Community. 

The same methodology was resorted to in the United States under the rubric of "outcome-determination" or sociological jurisprudence. The asserted social, economic or political purpose of any law, to promote this or that goal, would determine what the law had to mean and was.  Legal analysis and argumentation was reduced to the scrounging up of "rationales" for the ultimate holding or desired result.

German "teleological jurisprudence" differed from American "sociological jurisprudence" in that, theoretically, there was no balance at all and no individual right could trump State imperatives. But, in practice, the distinction was, illusory.  By debasing jurisprudence into a collection of "rationales" in favor of a result which is decided upon on some other basis, American law  ceased  being a prescriptive guidance and was reduced to a collection of post-hoc, sound-bytes.

By turning a guarantee of individual rights into a formula for "factoring in" governmental interests under the guise of an ever-renewable balance, Carroll allowed for a jurisprudence of evisceration. In either the German or American system, "law" becomes simply the howl that accompanies the exercise of state power.

The Carroll majority argued that the use of the word "reasonable" in the Amendment required it to balance personal and governmental interests in any given case.    But as McReynolds argued, the Amendment's prohibition against "unreasonable" searches did not open to the door to any means a judge might  think is "reasonable" if the means negated or circumvented the Warrant Requirement. Otherwise, the Amendment is rendered meaningless since the only thing it prescribes is improvisation.

The Howl Reaches Its Pitch

The Carroll court's dictum effected a fundamental perversion of Fourth Amendment jurisprudence. That article stood as a specified guarantee of personal rights, not as de jure vehicle for governmental policies.  As the Court itself had stated ten years before,

"The effect of the Fourth Amendment is to put the courts of the United States and Federal officials, in the exercise of their power and authority, under limitations and restraints as to the exercise of such power and authority, and to forever secure the people, their persons, houses, papers and effects against all unreasonable searches and seizures under the guise of law.  The efforts of the courts and their officials to bring the guilty to punishment, praiseworthy as they are, are not to be aided by the sacrifice of those great principles established by years of endeavor and suffering which have resulted in their embodiment in the fundamental law of the land." (Weeks v. United States (1914) 232 U.S. 383.)

As of 1968, when Terry was decided, the prohibition against unreasonable and unwarranted seizures was rebranded as a Reasonable Search and Seizure Clause. (Sibron v. New York, (1968) 392 U.S. 40)  In Sokolow, the fatal balance reached its final tip: in and of itself "serious implications for the enforcement of the federal narcotics laws" became the determining consideration for the outcome.

This fundamental shift was again made explicit in Florida v. Royer (1983) 460 U.S. 491 in which the Court ruled that "because of the public interest in suppressing illegal drug transactions and other serious crimes," a temporary detention for questioning in the case of an airport search  may be justified without a showing of 'probable cause' if there is 'articulable suspicion' that a person has committed or is about to commit a crime."  (See also Florida v. Rodriguez (1984) 469 U.S. 1.)

What Sokolow, Royer and Rodriguez illustrated was that the "balancing test" is a pseudo matrix to fool people as to what is really going on.  In neither case was any "balancing" involved, the Court simply ruled that the "public interest in suppressing ... crimes" over-rode the constitutional guarantee to be free from seizure absent warranted probable cause. It bears repeating that the Fourth Amendment was designed as nothing less than a limitation which applied to the "public interest" in suppressing crime.   It was not meant to facilitate state power but to restrict it; and not just some times but all times whether convenient or not.

The judicial snake oil did not stop at pseudo balancing.  It could hardly have been a coincidence that the Court had taken on cases which involved airport searches. The Court's opinions repeatedly referred to the search at issue as an "airport search" insinuating that some kind of "carefully delineated" aircraft safety exception was at issue.  But the searches in these cases had nothing to do with aircraft safety.  They were ordinary searches for drugs such as might occur on any street corner or highway. The airport was simple the mise en scene which had nothing to do with the real guts of the holding.

The justification for a “stop and frisk"  — that it was a minimal intrusions which required minimal justifications — was a canard. The Court well understood that all criminal investigations proceed in sequential steps and that even a formal arrest begins with an initial "minimal" stop. The Terry decision gave birth to what became known as "escalating reasonable cause."  From the starting point of an initial "momentary detention" for questioning, the police became adept at managing the situation so to generate more excuses for further intrusions and searches.

Thus, in Terry, the initial "rationale" for the stop (supposedly to ask the boys if they were contemplating a robbery) was  in the next instant cast aside in favour of an assumed safety issue "reasonably requiring" a pat-down. The Court's opinion never once pointed to any "articulable fact" implicating a suspicion that Terry was armed.   It would be the stuff of vaudeville, were the consequences to individual liberty not so severe. In reaching its result, the Terry Court ignored that never once had there been the least attempt to investigate anything. The officer simply approached Terry, asked his name, and when the latter mumbled a reply, spun him around and frisked his clothing and followed up with a full blown search. Similary in Sokolow, the majority again played the fool, pretending to ignore the patently obvious fact that the DEA agents planned and intended to arrest Sokolow for drug trafficking.

How far the Court would prostrate individual rights to government interests quickly ensued from Terry's distillation of Carroll's poison.  Not only did the Court lower the bar from the probable cause standard to the toe-hold rule of reasonable suspicion, it then sought to prevent inquiry into the actual causes motivating the seizure.  It did so by equivocating on the meaning of “motive.”

The facts in Sokolow pointed to a weakness in the Court's “balancing” in favor of governmental interests. In Sokolow, as most probably in Carroll, all signs were that the agents were acting on the basis of undisclosed information. The probable cause standard requires the government agents to 'fess up and reveal their true sources. The reasonable suspicion standard does not but rather allows them to concoct plausible sounding excuses, howsoever weak the beer might be.

Even so, a smart defense lawyer could exploit the facts to explore law enforcements true 'motives' — that is, the actual causes driving their decisions and conduct. In Sokolow's case, counsel might have seized on the fact that grabbing Sokolow's arm bespoke a purpose to arrest from the outset. From that point of departure counsel might then have sought to examine the agent on why he had resolved upon an arrest as opposed to engaging in momentary and  hands-off questioning.

The Court needed to foreclose exploration into such "motives" and did so in Whren v United States (1996) 517 U.S. 806  wherein it held that an officer's "subjective" motives for making a stop or arrest were not relevant under the Fourth Amendment so long as there was some "objective" basis, howsoever minimal, technical or "pretextual"  (the Court's word) for the  detention.

In Whren, the pretext for the stop, which ultimately uncovered drugs, was an un-signalled left-hand turn.  That offence, the Court held, was necessary and sufficient for the stop. Far be it for Officers of the Law to ignore violations of the King's Traffic Law ... and far be it for the Court to inquire into ulterior subjective "motives."  Of course, if probable cause “escalated” from the initial detention, one could hardly expect officers to ignore blatant evidence of possible criminality.

In conjuring up this doctrine of judicial blindness, the Court characterized the issue of "motives" as something involving personal hostilities or purposes -- such as racial bias or a desire to check out a pretty driver's legs.  It was a blatant sophistry which equivocated on the meanings of “motive.” A “motive” is simply the driving force or effective “cause” of something. To inquire into “probable cause” is to ask a question about motives or motivating factors; i.e., what facts caused the police to believe criminality was afoot.  In Whren, the issue of "motives" was arbitrarily cast as one involving  irrelevant subjective and idiocyncratic motivations, even though the Court well understood that the real motive at issue was the undercover information driving the official and collective investigation.  

With appalling brutality, Whren simply pulled out the word "subjective" to forestall meaningful inquiry into actual probable cause.  It  stands for the proposition, that whatever else law enforcement knows and may in fact act upon, they need not disclose it, ever, so long as they can come up with some plausible sounding pretext -- a "profile" in the case of Sokolow or a violation of traffic law as in Whren.

In other words, the probable cause standard as a true and  thorough examination of what actual drove police conduct  ceases to have any importance and is simply shunted aside, in favor of something that might well be labelled spurious probable cause or, worse yet, spurious reasonable suspicion.   Whatever the police can “objectively” concoct, it will be swallowed whole by the reviewing court.

This year, the black cat leaped from the bag. The recent disclosure that the National Security Agency has been funneling surveillance data to the D.E.A. and local law enforcement on condition that the police hide the source with some "parallel construction" of reasonable cause will come as no surprise to defence lawyers.  

It could hardly come as a surprise to the Court which, as far back as 1979, observed that, "In reviewing the factors that led the agents to stop and question the respondent, it is important to recall that a trained law enforcement agent may be "able to perceive and articulate meaning in given conduct which would be wholly innocent to the untrained observer."  (Brown v. Texas, supra at 52.)

The Court's recall was utterly disingenuous.  The constitutional standard of probable cause (and even of reasonable suspicion) presupposes review, at some point, by an independent judicial officer -- that is, by a person not endowed with the extra-perceptory faculties of trained agents but with a mere ordinary human capacity for orderly and inferential logic. To say that something must be "reasonable" is at least to say that it is capable, without more, of being understood and assented to be rational beings.  Once it is accepted that a witness has special extra-perceptory abilities, we have sunk back into the  fog of spectral evidence, where uniquely endowed witnesses point to hovering apparitions unseen by anyone else. At that point the Court might as well have hauled out Rev. Cotton Mather's epic jurisprudential tome on The Wonders of the Invisible World (Salem, Mass., 1693).

Consensual Encounters and Exposures

Two more pieces were required to complete the farce.  The first of these was the rule of "consensual encounters."  In a series of cases promulgated in the 1980's and 1990's, the Court lowered the  bar even beneath Terry and ruled that a police officer need not have any reason at all to approach and talk with a person, so long as there was no detention and the person so approached was "free to go."  (United States v. Mendenhall, (1980) 446 U.S. 544.) Nothing in the Constitution, the Court said, forbade a police officer from approaching someone to talk and if the person approached "decided" to stay and chat, about fishing or anything else, that was his free and voluntary decision outside the ambit of Fourth Amendment scrutiny.  In fact, a person is "constitutionally" free to go and to "end" the encounter, even when the police hover over him as he is seated in a bus against the window. (Florida v. Bostick (1991) 501 U.S. 429.)

Moreover, since "subjective motives" are irrelevant there is no need to ask why the officer is wasting taxpayer money talking up fishing; and, if in the course of fishing chat, the person should happen to disclose something suspicious sounding, the officer can hardly be expected to ignore it and cannot be blamed for following up on possible criminality.

Characterizing encounters between people and state agents as "consensual" was the ultimate cheek but that did not stop lower courts from holding that official "requests" to produce identification, to search a vehicle, or to enter a home were not "commands" and therefore that the ensuing intrusion had been "consensual."

Mendenhall and Bostick were truly vicious pieces of work.  An officer in uniform is presumed to be acting in an on official capacity on state business.  That is what the uniform represents.   He is not hired to talk about fishing but rather to represent the State and to discharge the State's business.  There is nothing "consensual" about the encounter because citizens are required to respond to exercises of official authority.   Is a motorist entitled to ignore flashing coloured lights in his rear view mirror on the assumption that the patrol officer is merely looking for someone to chat with about fishing?

Older caselaw required officers to have probable cause before accosting a citizen.  They did so in recognition that the "right" to tell the government to mind its own business and go to hell was one that could only be vindicated in a court of law; otherwise self-recourse to the right would lead to pandemonium.  Under, Mendenhall and Bostick a citizen can exert his right to ignore the officers and go about his business but the police are equally entitled to tazer him or shoot him in the back for "evading" or "non-compliance" with what they unilaterally decide was  an "official request."

Akin to consensual encounters was the doctrine of "voluntary exposure" which the Court used to invert our concepts of public and private space. 

In 1890  professors Warren and Brandeis wrote a short but important article on privacy law in which they anlogised the right of privacy to a fee simple absolute ownership interest in land. (The Right to Privacy,  (1890) 4 Harvard Law Review 193.)  Just as a person owns a 100 percent absolute interest in land, except and to the extent he might give it away, so too a person has, by default, a 100 percent privacy interest except and to the extent he discloses or exposes himself to others.  The article was intended for copyright purposes and to protect people from snooping yellow journalism.  However, in Smith v. Maryland (1979) 442 U.S. 735 and California v. Greenwood, (1988) 486 U.S. 35, the Court adopted the theory to criminal purposes, holding that a person retained no privacy interests in what he had voluntarily exposed to others.

In Smith the Court held that dialed telephone numbers were "conveyed" to the telephone company and could no longer be deemed private.  In Greenwood, the Court followed up and declared that no privacy interests were retained in garbage bags deposited on the curb for pickup and thus "exposed to public view".  The police were free to snoop through it if they wished.

Such sophistries could not be deduced from Brandeis and Warren. Their article made clear that, unlike virginity, privacy could be parted with by degrees for specific purposes. If privacy could be parted with by degrees, it necessarily followed that it could be retained in degrees. A telephone company maintains dialing history for billing purposes in confidence.  Likewise garbage is "conveyed" to garbagemen only as needed for it to be taken to a landfill.  In fact, as the dissent in Greenwood pointed out, the garbage inside the the bag is not "exposed" at all.  It is not "abandoned" to the public or strewn about for all to see. 

At bottom the Court's consensual exposure doctrine was based on a sophistry which equated being seen in public with being followed, stalked or snooped. It is true that a person who ventures out into public "exposes" himself to the public.  People who talk in public likewise risk being overheard.  But they do so to a public which is understood to be indifferent.  These exposures do not imply a consent to be stripped naked by any passerby or to be kept under ongoing  surveillance by police with notebooks in hand.

The result of Smith and Greenwood was an inversion of public and private space in which the only place where one is free from government surveillance is locked up at  home and public free-space is turned into vast, surveilled prison yard.  As Brennan stated, "The American society with which I am familiar 'chooses to dwell in reasonable security and freedom from surveillance,' (Greenwood, supra, at p. 56.)

This then was the general state of Fourth Amendment jurisprudence prior to 9/11 and the Patriot Act.  You can be stopped, frisked, questioned  and arrested for riding a bicycle without identification or for fitting a suspicious profile or for anything else amounting to a so-called reasonable suspicion. Your car can be stopped and searched from top to bottom on any mere pretext.  Anything you expose in anyway is can be monitored, recorded and used against you in a court of law.  Your house can be "temporarily seized" pending the issuance of a warrant for its permanent seizure and a plethora of exigencies (such as saving a cat in distress or even a suspiciously open door) can justify intruding into the house without a warrant on an emergency basis. 

It would be impossible to compress into a short article all the myriad excuses the Court has used to eviscerate the Fourth Amendment and, in fact, these technicalities are not politically important. The salient fact is that, by means of linguistic devices, the Court has shifted the context and focus of the Fourth Amendment so as to lower the bar for any seizure and so as to expand the scope of any search.

Over a 75 year period the Fourth Amendment was inverted from a protection of people against government into a collection of excuses in favor of governmental interests.  The right of people to be secure in their persons, houses and effects has been, in the Court's own words, inverted into a clause which enshrines state power to conduct searches and seizures. ( Sibron v. New York, supra, 392 U.S. 40)

The Law’s Erlkonig

Taking a long view, it can be seen that the evisceration of the Fourth Amendment was accomplished in the name of a some exalted principle:  a crusade against alcohol, against drugs and, now, against terrorism.  What these "evils" have in common is that they are amorphous. They lurk anywhere and anyone is a "potential" rum runner, drug mule or bomb carrier.  Everyone is a fortiori suspect.

Traditional crimes define more or less specific and distinguishable conduct; for example, "breaking and entering" a dwelling, or "taking and carrying away" property of another, or "intercourse without consent."  While these forms of conduct can arise in myriad variations, as forms, they are discrete and distinguishable.

In contrast, drug and rum running are "formless crimes" because they can occur under cover of myriad innocent variations, such as "sitting on a bus" or "talking to a bystander." Terrorism is similarly formless in that it can be carried out by any ordinary-looking person and involve almost any kind of violent criminal conduct.   

Indeed,  in 2008 CIA Chief, Mike McConnell told Congress that Al Qaeda had improved its ability to recruit operatives capable of "blending" into American society and attacking domestic targets.  The only thing moronic about this statement was that, by definition, that is precisely the “capacity” terrorists have.  Did Congress, or for that matter McConnell, really think that terrorists sneak about wearing identifying insignia?  The positing of a “terrorist threat” ipso facto puts the entire country under suspicion.

This is not to argue that the Government cannot outlaw contraband or terrorism.  It is only to point out that the Constitution rightly imposes limitations on how such crimes are detected and prosecuted.  It is one thing to arrest a drug courier on specific information and probable cause that he is presently engaged in drug-running. Once the bar is lowered to a mere suspicion of possible criminality then, precisely because the crime is formless any conduct howsoever “seemingly innocent” becomes suspicious or, as is typically said, "potentially criminal."   

For years, police have resorted to double-talk and passive constructs to slip “potential cause” past supposedly unsuspecting judges.  They have resorted to gobbledegook like, “the suspect was known to have links to potential criminal activity...” Along with blendable terrorists, this amorphous non-sense has confused thought and penetrated even the highest reaches of journalism, as for instance when the New York Times reported “Potential Suspect in Robbery of Justice Breyer.” 

What in the world is “seeming innocence” seeing as things are usually what they seem to be?  What in the world is a "potential suspect," given that a suspect is a person who imaginably might be engaged in something?   Such terms and phrases are mere shadows and, as such, they cast darkness over all of society.  They conjure up an unseen evil which hovers behind and over all making everything which is seemingly innocent potentially suspect.

This is precisely the inversion that takes place in totalitarian societies where the question is not what is prohibited but what is allowed; not who is guilty, but who is innocent.  Worse yet, (seeming) innocence bespeaks (potential) guilt.

The Fourth Amendment was designed to prevent just that kind of inversion. Society is premised on trust and friendship. Accordingly, the Fourth Amendment demands specificity and cause in order to suspend that premise in any particular case. It requires the existence of some  distinguishable criminal act and was specifically designed to prevent rummaging, rampaging hunts for some "potential crime" occurring under apparently innocent activity.

A doctrine or culture of suspicion is a Manichean hysteria which spooks itself with the conviction of some ever-present evil lurking in a world of darkness and which, as a result, converts society into a mighty fortress turned against itself.

Unfortunately political diseases, like physiological ones, develop over time from bad habits and abuse. When they at last break out it is usually too late to remedy the ill-effects except by drastic means which are near as bad as the disease itself. 

As a result no one in Washington — and certainly no one on the Court -- is talking about resurrecting the Warrant Clause requirement.  Rather the point of departure for the public debate (such as it is) is that warrants can issue for a class of activities as to which Government has a general "right" to search by default.  

Likewise, no one is proposing to reinstate the probable cause standard.  Instead they are debating and tweaking the non-standard of reasonable suspicion, which itself has been interpreted as allowing dragnet searches for potential criminals or terrorists -- that is, for persons as to whom no specific information of criminality exists but who might (as a mere possibility) be involved in terrorism or crime. 

The Founders of the Republic understood that the Constitution was a solemn covenant which fundamentally shaped how we would be and what we were about.  The Bill of Rights enshrined a political morality which was intended to restrain the devices expediency.  The Fourth Amendment did not prescribe a kazoo of reasonable pretexts; it established what the Constitution deemed reasonable and demanded.

In another context Justices Sutherland and McReynolds warned that “[e]very journey to a forbidden end begins with the first step."  (Carter v. Carter Coal Co. (1936) 298 U.S. 238.)  They would have understood Samuel's admonishment to the Israelites who rejected their Covenant and cried, "Give us a King to rule over us; so that our king may judge us, and go out before us, and fight our battles!" Samuel showed them the ways of the king that would reign over them and warned them saying, "Ye shall then cry out because of your king which ye shall have chosen but the Lord will not hear you in that day." (1 Samuel 8.)

The forbidden end has been reached and we will not be heard.

Justice Mc Reynolds

©Woodchip Gazette, 2013

The Unsung Charter & Popular Economic Control

Carta de Foresta (1217)

A preceding woodchip discussed how the Bill of Rights presupposes a citizen’s direct, active participation in civic affairs and how the rights of free speech, bearing arms and trial by popular jury were fundamental bases in a construct of political activism.  Gun violence and police lawlessness, we argued, were co-equal symptoms of a chronic political alienation which afflicts American society.

In this follow-up article, we would like to discuss how the Bill of Rights also presupposes a citizen’s direct and active participation in economic affairs. When the Bill is comprehended in its totality, it embodies not simply a list of juridical rights but a whole and organic concept of participatory political-economy. 

It may seem obvious to some that the Bill of Rights, as an 18th century political document, reflects and presupposes the economic conditions prevailing at the time it was written; namely, classical, entrepreneurial capitalism.  But, as explained in the previous article, the Bill of Rights is not a product of the Enlightment. It embodies a medieval construct that was only restated by the Founding Fathers.  If the Bill of Rights  reflects a medieval a political-economy it makes sense to examine the economic conditions prevailing at the time of Magna Carta, just as in the preceding article we examined the political construct of those times.

Detail of Shearing from Trés Riches Heures

Caveat. The economies of bygone eras is a complex topic always in peril of yielding the wrong conclusions. The epic studies of Henri Pirenne and Ferdinand Braudel have demonstrated that what is today conveniently nut-shelled as “the Dark Ages” involved varied and contradictory economic currents.  The 1000 year history of Europe’s economy between A.D. 475 and 1453 is one of continuous adaptation and transformation.  When it comes to english feudalism in the 10th and 14th centuries, the situation is no simpler. There is no single tableau economique of feudal economic rights and obligations.

What can be said, at the risk of a cartoon, is that society was composed of four classes: a peasantry (which was relatively prosperous), a middle-class of tradesmen and merchants, a para-class of clerics and a warrior nobility.  To a substantial degree, the king was merely a preeminent member of the nobility although royal activists were always striving to turn themselves into all-embracing monarchs.

The peasantry, nobility and monarch were economically and politically connected by a hierarchy of mutual rights and obligations clustering around interests in land.

The tradesmen and merchants were basically exempt from this core feudal structure. They were free-roamers and free-traders with their own laws, guilds and associations.

Also exempt was the entire army of the Church which was a parallel and separate government providing non-tangible services and with jurisdiction over non-landed interests.

Zapotec Weaver,  Oaxaca, Mexico (1994)

It is a debateable how separated these classes were from one another.  England’s early parliaments, the Witengamot (600-1066), deriving from the still earlier folkmoots, was a unicameral body not divided into Lords and Commons but consisting simply of “prominent” men. It is fair to say, that although clear class distinctions arose out of status and function, localized economies and conditions brought these classes into a closer, more mutually dependent and in this sense democratic relationship.
.

Neverthless, in the slow but inexorable move toward capitalism, many peasants became dispossessed from their land and were reduced to sharecropping or vagabondage.

Members of the middle class moved both up and down. Most tradesmen became “industrial” laborers while many merchants metamorphosed into factory owners producing the goods they had previously simply bought from others and resold.

The nobility continued to live off the land, but (if they wanted to survive) adapted to changing circumstances by adding “businesses” to their armoury.

The para-class of clerics had included just about anyone who could write so that monks and clerics had acted as a kind of secretarial and administrative class which now came to include teachers, accountants and lawyers.

These changes occurred gradually over the same period that the charters and laws from which the Bill of Rights was drawn were enacted. Although the 13th century appears pivotal in retrospect, strong and vibrant elements of the feudal order persisted in both original and altered forms into the 18th century.

Among these medieval charters and laws, Magna Carta is the chieftest. It gets trucked out on Law Day, as some kind of sacred relic which is oft intoned and seldom read. But there was another document from that era which is equally significant even if it is not intoned at all: Carta de Foresta.

Pannage or Pig Grazing on Common Lands

The Forest Charter was in fact a 13th century Economic Bill of Rights.  It was first issued in 1217 as a complementary charter to Magna Carta from and provided in pertinent part that,

    "Henceforth every freeman, in his wood or on his land that he has in the forest, may with impunity make a mill, fish-preserve, pond, marl-pit, ditch, or arable in cultivated land outside coverts, provided that no injury is thereby given to any neighbour."

The “forest,” which included fields, moors, farms and common lands, comprised a resource which was essential for the peasants’ survival.  It provided wood for heating, cooking and smithing; it provided pasture for pigs and cattle; and it provided a direct source of captured or hunted food. Without access to “the forest” peasant farming was simply not economically viable.

By most definitions, “capital” includes any natural resource which is put into productive use (e.g. a forest used as resource for making paper). For this same reason King John and members of the upper nobility sought to monopolize these capital resources.  While the “foresta” were not entirely used by the peasantry as capital in a strict sense (e.g. to produce paper), they provided the common man with at least an indirect form of capital which was critical to his other productive activities.  In particular, wood as a source of energy was as important to industry then as oil is today.

Magna Carta and Carta de Foresta were thus the two pillars of England’s popular political-economy.   Just as Magna Carta protected political and juridical rights, Carta de Foresta aimed to protect and insure the common man’s economic survival.

Those familiar with pre-capitalist history would fairly point out that if this Golden Age of Peasantry ever existed it was short lived.  While that is true enough,it is also true that, throughout the subsequent class struggles of the 14th and 15th centuries, the working man’s claim is usually conservative -- seeking to retain ancient and traditional rights more striving to gain new ones.

And it was the retained tradition that the Bill of Rights presupposes. The cluster of legal and economic rights, which evolved over a 700 year period and from which the Bill of Rights was drawn, pressupposed not only active political participation in local affairs but also a viable and sustainable economic participation.  The role of the individual may have been small, but it was real and direct.

As noted in the previous article, the unique demographic conditions of the United States immediately upon independence, perpetuated or revived medieval living conditions.  As the isolated hearth on the heath was disappearing in England, it came to life again in the outbacks of Kentucky or the plains of Nebraska.  Similarly as the common lands and forests were  enclosed  and monopolized in England, the American yeoman had an open continent for his pasture and meadow. 

Accordingly, to assert that the Bill of Rights presupposed a "medievalist" political-economy is not to engage in a fantasmagorical appeal to a statu quo ante, because it was, in America, the prevailing statu quo hic et nunc.

Late Medieval Butcher

Nor is it contradictory to argue that the Bill of Rights presupposed a classical, burgess economy. Whether the Bill's political and juridical traditions are regarded as a reflection of medieval economies or as a manifestation of 18th century social circumstances in either case they presupposed a society in which the free citizen directly and responsibly participated in both his economy and his civic life. 


What is added by the longer historical perspective is the understanding that the Bill of Rights does not simply manifest a brief bourgeois “blip” in the historical trajectory but rather reflects an ongoing social tradition that over-arches specific economic systems.  In other words, in whatever specific form it may take -- feudal, classically capitalist or other --  the Bill of Rights assumes the existence of direct participatory popular control over political and economic life.

By way of pertinent example, the right to bear arms, carried over into the Second Amendment, is not only a political right in case of tyranny and subversion,  not only (as we have argued) a civic duty to participate in local policing it must be viewed as well in its utilitarian, economic context as insuring the means of primitive survival.    This is not to say that the Bill of Rights is, in the abstract, an economic document; but rather that it is a juridical document which implies a certain economic vitality.

What has occurred, then, over the past 200 years is a mutilation in which political rights have been severed from their economic correlatives and both have been vestigialized.

Contrary to the social construct envisioned by the Bill of Rights, ordinary Americans have become alienated from direct active political participation. The resort to indirect, representative democracy at the local level and the intervention of professional administrators, managers and police have disassociated the citizen from his “political work”.  By reducing civic participation to the occasional passive choice between options presented, man had become alienated from his citizenship.

A similar process has taken place in the economic sphere whereby the average worker has become alienated from his labor.  To see how this is so, it is necessary to step back an examine what it means to “work”.

In recent times, it was John Lock who expressed the idea that ownership over something derived from man’s labour put into it.  It was a simple proposition.  A craftsman who cuts, shapes and sands wood to turn out a carved table quite literally transfers his sweat and skill into the material worked on.

If there is an uneven surface or nick in the table’s leg, it reflects for all time the mis-angled thrust that, in a moment of time, was made by a man working. For better or worse, the worker reproduces himself in the object he creates. The object takes on the properties bestowed into it by its creator which is why it is called his property.

Of course, the craftsman takes his table and exchanges it for some product created by someone else. Because we ourselves have become so alienated from the process of production we tend to think of this exchange as a mere transfer of objects.  In fact, what takes place is a species of intercourse in which mens’ labours are shared and incorporated into eachother’s lives. I eat on another man’s back and walk in his hands. It was for this reason that Aristotle said commerce was the first level of friendship.

Bartering

However, when one man works for another, a  principle of alienation is introduced. What the worker sells in this case is not a product but the use of his labor. The object produced is taken away from the worker, given  another’s name and disposed of as is expedient for the authorized owner. This severance introduces a subtle sorrow and ultimately despair into work.  It is not as grievous as seeing one’s son or daughter being raised in another’s house but the fact of alienation is the same and its effects are evidenced in the well known phenomenon of worker indifference and carelessness.  

«Tu proverai sì come sa di sale
lo pane altrui, e come è duro calle
lo scendere e 'l salir per l'altrui scale . . .»

"You are to know the bitter taste
of others' bread, how salty it is, and know
how hard a path it is for one who goes
ascending and descending others' stairs . . ."
(Paradiso, Canto XVII (55-60).)

Those familiar with Marxist theory will also spot the inevitably ensuing alienation of economic value. But the focus of this article is on what might be called the psychology of economic activity.

As an historical and practical matter, the alienation of the worker from his product, took place primarily within the context of the division of labor; but this only rendered matters worse because the worker was not only alienated from the product but even from the act of creative paternity.   As noted by Adam Smith, in an oft forgotten passage,

    "The understandings of the greater part of men are necessarily formed by their ordinary employments. The man whose whole life is spent in performing a few simple operations, of which the effects are perhaps always the same, or very nearly the same, has no occasion to exert his understanding or to exercise his invention in finding out expedients for removing difficulties which never occur. He naturally loses, therefore, the habit of such exertion, and generally becomes as stupid and ignorant as it is possible for a human creature to become. The torpor of his mind renders him not only incapable of relishing or bearing a part in any rational conversation, but of conceiving any generous, noble, or tender sentiment, and consequently of forming any just judgment concerning many even of the ordinary duties of private life... But in every improved and civilized society this is the state into which the laboring poor, that is, the great body of the people, must necessarily fall, unless government takes some pains to prevent it." (Wealth of Nations (1776) Bk V, ch. 1.)

The 20th century saw various attempts at a solution.  The allure of National Socialism was that it appeared to many -- capitalists and progressives alike -- to have solved the problem of worker-drone anomie by calling upon Captial and Labor to work together for the Volk Gemeinschaft -- the People’s Community -- of which they were both a part.  All life became a National Wagnerian Gesamtkunst (all together art) in which everyone played an “organic” role.

Soviet Communism was similar, with the added difference that in theory at least, everyone, through the state, owned everything and all the profits.  If one looked at the picture of Soviet Life, everyone was as happily participatory in the great proletarian community as the Germans were in theirs.

America’s National Capitalism recognized the problem but ultimately sought a solution in promoting a National Community of Junk. 

Early progressives like Herbert Croley  (The Promise of American Life) and Theodore Roosevelt were inspired by the Bismarckian political-economy which ultimately evolved into National Socialism.  In fact, the progressive movement initially called itself the “New Nationalism.” 

"The New Nationalism puts the national need before sectional or personal advantage.”  Roosevelt said.  It will “regulate the use of wealth in the public interest” and “regulate the terms and conditions of labor”  bearing in mind that coporate profit should be allowed  “only so long as the gaining represents benefit to the community” and to the end that “the commonwealth will get from every citizen the highest service of which he is capable.” (Osawatomie, Kansas August 1910)

Less progressively, Woodrow Wilson put forward his “New Democracy” which aimed to promote and revive local entrepreneurship.  Although Bull Moose Progressives and the New Democrats moved in opposite directions both platforms were grappling with the same underlying problem: the uneven distribution of wealth coupled to political and economic alienation.

In the end, the United States adopted a model which was a watered down version of both plans. Corporations -- not the State -- were made responsible for providing health care and pensions while the Government took care of the absolutely destitute and provided some incentives for small businesses.  The problem of anomie was solved not with Wagnerian gesamtkitsch but with the narcosis of consumerism.

Despite their geo-political antagonisms, each of the three systems ended up looking and being very much alike; and they all suffered from the same fundamental defect: they  sought a solution in substitutions without reviving actual worker control of his economic life.

Among professional historians the substitution is known as “false embourgeoisement” -- a tongue twisting term meaning to make labor drones feel like they are “middle class” by giving them the trappings of the bourgeoisie.

The defect did not go unnoticed.  In Germany, Otto Ohlendorf, an S.S. economist, collaborated with the later post-war chancellor, Ludwig Erhardt, in drafting an economic model based upon revival of a craft ethic, leaving “mass production” to the United States and Japan. In Ohlendorf's opinion, (cribbing straight from Adam Smith), only skilled, craftwork was compatible with fomenting politically conscious human qualities. 

In the United States, Walther Reuther, made worker participation in management one of the demands of his 1946  strike againt General Motors.  Reuther, a socialist who had been impressed by soviet worker-councils,  wanted American labour to regain some measure of control over its economic life.  In exchange for "co-determination" in management, workers' pay would be indexed to company profits.  In the end, however, Reuther was bought off with a basket of goodies that was too good to pass up, with the dismal result that the American labour movement ceased ot have any economic ideology other than “Gimme”.

Reuther had been on the right track.  In terms of goodies alone, there is no difference between false embourgoisement and plain decent living conditions.   What makes the single family dwelling, the Volkswagen, the washing machine, the radio "false" is divorcing the possessing of these goods  from involvement in the process of their production.   Herbert Croley had been very clear that his "New Nationalism" had to take its shape and impetus from democratic initiatives arising "from below".

But if the economic system renders the worker “as stupid and ignorant as it is possible for a human creature to become”  it is pointless to hope for a vibrant, democratic political life. 

Homo politicus and homo economicus are two sides of the same coin. A mere labourer is not an “economic man” but simply an economic resource which is precisely why corporations and governments speak of “human resources”.  But an economic resource cannot be and will not even conceive of itself as a political being.   As an ultimate result, the United States has come to epitomize Adam Smith’s predictive warning. It has simply added giggles to the stupidity and torpor by showering the common man with goodies .... and no longer even that. 

The reduction of the Bill of Rights to a catalogue of merely personal rights was a necessary part of the economic and political dispossession of the common man.  In this respect both so-called liberals and so-called conservatives have got it entirely wrong.  The bill of rights does not “enshrine” merely individual rights, but rather the social rights of individuals in their economic and political being.

If the promise of the Bill of Rights is to be realized, it is not enough to demand this or that “right” and it is not enough to demand this or that economic “entitlement.”   Without falling into antiquarian or luddite nostalgias, means must be found to reactivate real and substantive political and economic participation and responsibility by all citizens.

Butcher Tables, Zachila, Oaxaca

Gun Control, Cop Control and Self Control under the Bill of Rights

      

In the past months a spate of shootings once again focused public attention on armed violence in the United States.  Most of the attention focused on the group shootings in Illinois and Wisconsin.

Strangely enough, the liberal-progressive media gave scant attention to two other shootings which occurred at the same time.  In Anaheim, California, the police carried out a curbside execution, in plain view, of a suspect who was lying helplessly on the ground.  Not covered at all, was a story reported in the U.K.’s Guardian,

“Friday 3 August 2012 13.21 EDT. The FBI says it is "monitoring" the case of a police suspect who officers claim fatally shot himself in the head despite having his hands cuffed behind his back in the rear of a patrol car.  • • • The incident has raised questions, not least over how officers apparently failed to find the gun on Carter during an initial search. It has also been said that the suspect died as a result to a gunshot wound to the right temple. Carter was left-handed ....” [ Full Article ]

The police executions triggered predictable protests from the minorities involved but were mostly ignored by middle class liberals who continued to tear their hair out over the Second Amendment.  Once again, political discourse suffered from curious disconnects, an ignorance of history and an undue focus on one’s own immediate wants -- or as increasingly the case  -  on one’s private injuries and fears.

Gun control and cop control are two sides of the same political coin. The solution to both aspects of the problem is greater citizen training and participation in the policing of communities. This solution is not just a choice among policy options.  The necessity for individual civic participation is a constitutional assumption.  Keeping and bearing arms is correlative with the right to bear witness and render jury verdicts.  These two rights are cornerstones of civic duty and implicate direct popular involvement and control over the essentials of public life.  

This legal conclusion begins with a sociological question.

On reading about the Aurora killings, we wondered if such armed insanity occurred when people were habituated to living with and using arms on a daily basis. It did not seem to us that it did.  Certainly crime and lunacy have always existed; but gun advocates are right when they insist that it is people -- not guns -- who commit crimes.

Liberals can dance around this fact all they want, but the sum and substance of their arguments is that since we can’t trust people to be mature and law abiding it is best to keep arms out of their hands.  At bottom, this argument tacitly accepts a society of belligerent, lumpen morons as an unalterable reality. The argument is all the more curious coming from that same political faction which in the next breath talks about cultural sensitivity, liberal education and bringing back the philosopher-peasant.

The socio-historical fact is that the Second Amendment presupposes a mature and responsible citizenry.  The Amendment serves as a barometer of social equity and health.  The kind of society America ought to be is one in which citizens can be trusted to keep and bear arms.  If that is not the case, then we are not the kind of society we ought to be.

The argument between gun control and gun rights creates an historically false dialectic which disconnects what was originally viewed as one and the same thing. Put another way, a political philosophy which espouses freedom necessarily presupposes personal self-control. Conversely, self-control presupposes the existence of things in relation to which control is exercised.

It is thus that the Second Amendment has its rude genesis in the right of freemen to participate in the defence of the realm. In medieval times, the distinction between a right and a duty did not exist in its modern anti-podal form; rather, the capacity for self-defence and for self rule were two sides of free-born status.

Upon assuming the throne (such as it was) in A.D. 872,  King Alfred the Great issued an edict that all who could afford to do so should assemble to repel the pagan Danes who had seized London.  His contemporaneous organization of towns into fyrds of a hundred families reflected a loose socio-military structure akin to the Krumper System or what might be called an army-on-call. [ FN-1 ]

A little over a century later, as the emergencies of war gave way to the routines of peace, Alfred’s system coalesced. Under the laws of Edward the Confessor (1042-1060), “the inhabitants of each Township regulated their own local police. They were bound to keep watch and ward. If any crime was committed in their district, they were to raise the hue and cry and to pursue and apprehend the offender. ...  Even the poorest or almost propertyless Churl, was personally free. He was law-worthy.  The Churl had the right of bearing arms. He was a legal witness. He had political rights with regard to the magistracies of his township, ...  both as an elector, and as himself eligible to office.”  (British Common Law,  Francis NigelLee, DCL., Part VI, Ch. 23  (1993).)

The situation remained much the same after the Norman Conquest. King Henry II’s Assize of Arms (1181) prohibited ownership of weapons by Jews and, of all others, required ownership of arms according to wealth and status, viz  “...every free layman who possesses chattels or rents to the value of 16m. shall have a shirt of mail, a helmet, a shield, and a lance....”   The Assize of Arms of 1252 required all males between 15 and 60 to keep specified arms and to quell breaches of peace when summoned by nominated local constables.

Hue & Cry

There can be no question that, under these laws, the possession of arms was “regulated” and that the bearing of arms was connected to a feudal military obligation.  However, proponents of present day gun-control overwork the military connection by ignoring the political context which was one in which the individual was directly and immediately connected to exercising attributes of sovereignty: not only answering a call to arms, but policing the town, bearing witness and giving judgement.

It is a canard of 18th century liberal propagandists that the Middle Ages were an undemocratic time.  On the contrary, both in England as on the Continent, feudalism entailed a high degree of rough but real freeborn political participation by fee-holders of arms-bearing age.  To say that the “right to bear arms” was subsidiary to the existence of a “well regulated knighthood” ignores the more predicate reality that the militia in those days was “self-regulating” and that its self-regulation fit within a scheme of immediate, local self-governance.

This concept of local self-governance is at the core of the Bill of Rights which, today, is too often thought of as enshrining merely individual rights as if these existed in isolation from their social context.  A brief and summary over-view will illustrate the encompassing medieval roots of the Bill of Rights. 

A century after Edward the Confessor, the Constitutions of Clarendon  (1164) affirmed that no layman could be accused except that twelve lawful men from the neighboring ‘hundred’ were summoned, placed on Christian oath by the Sheriff, and thereupon returned a true-finding or veredictum on the matter. (Const. Art. 6.)

The procedure was amplified in Articles 17 and 39 of Magna Carta (1215) which declared that ordinary lawsuits should be tried locally and that “[n]o Freeman shall be taken or imprisoned or dispossessed or outlawed or banished or in any way destroyed; .... except by the legal judgement of his peers or by the law of the land.”

Magna Carta also provided the germ of the Fifth Amendment by specifying that “no official shall place a man on trial upon his own unsupported statement, without producing credible witnesses to the truth of it” (id., Art. 38) and that “no constable or royal official shall take corn or other movable goods from any man without immediate payment ....” (id, Art. 28).

The laws of King Canute (A.D. 995-1035) had provided that “merciful punishments shall be determined upon for the public good; and the handiwork of God and the purchase which He made at a great price, shall not be destroyed for trivial offences” (II Cnut 1-4).   Magna Carta confirmed that, “For a trivial offence, a free man shall be fined only in proportion to the degree of his offence, and for a serious offence correspondingly, but not so heavily as to deprive him of his livelihood. (Carta, Art. 20.) 

Most famously, of course, the first article of Magna Carta -- providing that “the English Church shall be free, and shall have... its liberties unimpaired” -- protected the freedom of the Church from subordination to Royal power and, through historical adaptations, became the First Amendment’s freedom of conscience and expression from government infringement.

This brief sketch illustrates that the Bill of Rights is an organic whole which incorporates a medieval political philosophy of chartered liberties for districts and so called “free cities.”

The salient character of medieval English law is that while it allowed a common law throughout the realm, it also sought to restrain royal encroachments and safeguard local control over local affairs.  Within this context the right to bear arms, the right to a local jury trial by one’s equals upon corroborated evidence were of the same weave which preserved citizen participation in his own safety and justice.

What is astonishing is the consistency with which these medieval rights were maintained as England progressed through the revolutionary upheavals giving birth to the modern era.

In 1688, King James II, as King John before him, sought to extend Royal Prerogative at the expense of individuals and the Church of England hoping, it was feared, to reimpose Catholic (and French) hegemony over Britain.  He was overthrown by an armed populace in the “Glorious Revolution” of 1688 which re-instituted England’s by then established concept of constitutional monarchy. 

In the revolution’s aftermath, Parliament enacted the 1689 Bill of Rights which became the most immediate predecessor of the American Bill of Rights. 

In pertinent parts, the 1689 Bill prohibited: “the raising or keeping a standing Army within the Kingdome in time of Peace...” (which became the Third Amendment’s prohibition against quartering of soldiers)  [2] “that  the Subjects which are Protestants may have Arms for their Defence suitable to their Conditions and as allowed by Law” (which became the Second Amendment)  [3] “that  Jurors ought to be duely impannelled and returned...” (which became the Sixth Amendment) and [4] “that excessive Baile ought not to be required nor excessive Fines imposed nor cruell and unusuall Punishments inflicted.” (which became the Eighth). [ FN-2 ]

(The one modern addition to this medieval cluster of rights was the Fourth Amendment’s prohibition against unreasonable searches and seizures which arose from the 18th century trans-Atlantic uproar over the rummaging and seizure of the North Briton’s presses which had published nasty things about the King’s minister. (Wilkes v. Wood, (1763) 98 Eng. Rep. 489 (C.P.); Entick v. Carrington, (1765) 95 Eng. Rep. 807 (K.B.).)  [ FN-3 ]

One of the idiocies of the Received Standard Version of American Education in the 20th century is that the Constitution and Bill of Rights were, if not inventions of the quasi-divine genius of the Founding Fathers, at least products of Enlightenment liberalism. 

Another idiocy is the utterly upside down notion that the Stuarts based their rule on obscurantist medieval ideas about the Divine Right of Kings.  In fact, James II, as King John and the Tudors before him and as the Borbons, Frederick, Bonaparte, Hitler and Stalin after, were all believers in the modern concept of the centralized, unaccountable, supreme state.  The idea was not so much l’etat c’est Moi as it was l’Etat c’est tout.

The English legal historian, Theodore Plucknett, put it this way:

    “Out of all the confusion and disaster of the middle ages, there arose a uniform cry for law, which should be divine in its origin, supreme in its authority, rendering justly to every man his due. ... When we come to Machiavelli we reach the spirit of the Renaissance... A double standard between public and private morality introduces a sort of polytheism utterly repugnant to medieval thought.  The issue of this conflict is perhaps still uncertain, but medieval thought is today fighting hard for the cause of law against the amoral, irresponsible State.  It was the medievalists in England ... who ended Stuart statecraft, and the Constitution of the United States was written by men who had Magna Carta and Coke before their eyes. Could anything be more medieval than the idea of due process or the insertion into an instrument of government of a contract clause?"  (Concise History of the Common Law (1928) Cambridge. Univ. Press.)

Could anything be more medieval than the idea of jury trial and nullification?

From the perspective of French or Continental liberalism, such medievalisms are an absurdity.  In their view all rights derive from the Social Contract and it is an oxymoron for the State to guarantee rights against itself. This was precisely Hamilton’s argument as to why there was no need for a Bill of Rights to be appended to the Constitution. (Fed. Pap. # )  The State being established to promulgate the General Welfare what could be more absurd than allowing ad hoc groups of citizens to hobble and oppose its operations?

But Madison was English, and when the American Colonists sought their independence from royal authority they did so “as Englishmen” in the same tradition and manner as the Barons at Runneymede. And it is certain that when the barons forced King John to sign Magna Carta, they were not leaning on their quills.

The right to bear arms against the state was at the core of the Supreme’s Court decision in District of Columbia v. Heller (2008) 554 U.S. 570.  In his majority opinion, Justice Scalia emphasized the Second Amendment’s role in providing a safeguard against tyranny. He noted that,

    “Under the auspices of the 1671 Game Act, for example, the Catholic Charles II had ordered general disarmaments of regions home to his Protestant enemies [at p. 593] ... and  of course, what the Stuarts had tried to do to their political enemies, George III had tried to do to the colonists. In the tumultuous decades of the 1760's and 1770's, the Crown began to disarm the inhabitants of the most rebellious areas. That provoked polemical reactions by Americans invoking their rights as Englishmen to keep arms. [at p. 598].”

Charles II and James II were the legitimate sovereign authority and as such had every prerogative to punish or execute those who violated duly promulgated laws. But what of the situation when the lawful authority is itself subverting constitutional underpinnings?  To appeal to “the law” in its official manifestation would be to spit in the wind.  As in 1215, so in  1688 and so too in 1776, the right to bear arms was the right to resist, to compel, to overthrow.  No one thought otherwise.

While bearing arms against the Crown might be the most primary and the ultimate act of popular nullification, it is not the only one provided for by the Constitution. The Second Amendment is properly viewed in conjunction with the Sixth Amendments’s guarantee of a jury trial.

The State has always eyed the popular jury with suspicion. Just as the Stuarts sought to disarm Protestants, the Crown sought to bend juries to its will.  Medievalists thought otherwise. In Bushel’s Case (1670) 124 E.R. 1006, Chief Justice Vaughan forbade punishing jurors for returning verdicts the Crown disagreed with.  Once empaneled, the jury was absolute and its verdict once given was unimpeachable.  As explained by the Supreme Court,

    “[T]he very reason the Framers put a jury-trial guarantee in the Constitution is that they were unwilling to trust government to mark out the role of the jury. ...¶¶... Our Constitution and the common-law traditions it entrenches, however, do not admit the contention that facts are better discovered by judicial inquisition than by adversarial testing before a jury.  (Blakely v Washington (2003) 542 US 296, 308, 313, [Maj. Opn., Steven, J.].)

    “[Justice Bryer] sketches an admirably fair and efficient scheme of criminal justice designed for a society that is prepared to leave criminal justice to the State. (Judges, it is sometimes necessary to remind ourselves, are part of the State — and an increasingly bureaucratic part of it, at that.) The founders of the American Republic were not prepared to leave it to the State, which is why the jury-trial guarantee was one of the least controversial provisions of the Bill of Rights. It has never been efficient; but it has always been free.”  (Apprendi v New Jersey (2000) 430 U.S. 466, 498  [Conc. Opn., Scalia, J.].)

Thus, whereas the Second Amendment reserves the right of physical resistance, the Sixth preserves the right of political impedance.  Neither contemplates purely individual obstruction; both enable the raw sentiment of the community to make itself felt.

As the power of the centralized State grew, the politically negative role of the two rights came to be emphasized.  However, that was never their only function.  Tracing roots back to the days of Edward the Confessor, it can be seen that raising the hue and cry, bearing witness and giving judgements marked out an ambit of positive, daily participation in local civic life.

While this ambit may have shrunk as England became more industrialized and urban, by an accident of history, it found new life in the United States where a sparse population living in isolated settlements hearkened back to medieval demographic conditions.

American Jury Trial (1849)

It was not until the 20th century, when the United States itself became urbanized, that direct citizen responsibility and control over his immediate civic circumstances slowly gave way to management by professionals and supervision by a standing police.  Unfortunately, the Supreme Court has not been zealous in protecting the right to be safe from police.

The English and Colonial opposition to standing armies was not based solely on the policies they enforced as much as on what they intrinsically represented.  Any standing force by its very nature introduces a principle of alienation into society, because any line, whether red, green, grey or blue, of necessity creates two sides.

In the inevitable conflict between authority and autonomy, the English answer was predictable.  William Pitt, on the occasion of a debate in Parliament on the searches incident to the enforcement of an tax on cider, eloquently expressed the principle:

   

    “The poorest man may in his cottage bid defiance to all the forces of the Crown.  It may be frail; its roof may shake; the wind may blow through it; the storm may enter; the rain may enter; but the King of England cannot enter -- all his force dares not cross the threshold of the ruined tenement!”  (Miller v. United States (1958) 357 U.S. 301, 307 [maj. opn., Brennan, J.].)

   
Of course, Pitt did not mean that the King’s Men could not enter at all, but rather than they could do so only upon warrant, after knock and notice and in a reasonable and restricted manner.

In the first half of the 20th century, a growing recognition by the Supreme Court of the importance of the Fourth Amendment led it to review and restrict the license with which police were allowed to act.  Critical to the restrictions was the judicial rule that refused to give any legal effect to illegally seized evidence.

Unfortunatley, one of the more inane and destructive idiocies ever uttered by a judge was the quip by “liberal” Justice Cardozo that the exclusionary rule meant the “criminal is to go free because the constable blundered.”  Waving the banner of innocent blundering, an organized cry against “shackling” the police and against “criminal” rights, was used by the police, ardent prosecutors, pandering politicians and supine judges to turn the Fourth Amendment into a meaningless piety riddled with exceptions.

    “The Court's rhetoric cannot disguise the fact that when it not only tolerates but also provides an affirmative incentive for warrantless and plainly unreasonable and unnecessary intrusions ....”  (Segura v United States (1984) 468 U.S. 796, 840  [Diss. Stevens, J.].)

Taking their cue, trial court judges routinely play deaf dumb and stupid to police excuses and evasions on the  stand.  The police themselves jokingly refer to their bearing witness as “testilying.”  Such habits, now entrenched after 50 years of habituated indifference, have created a culture of impunity among the police. 

This culture of impunity is built upon a subtle but fundamental alienation of police from society which is reflected in their self-differentiation from so-called “civilians” and in their opposition to “civilian review boards.”  In legal fact, police are themselves civilians but the accepted nomenclature has allowed them to become viewed as and to act as a de facto para-military force which, being free from “civilian” oversight, is an actual army of occupation.  

To say that the Founding Fathers would be scandalized is an understatement.

In the Common Law tradition of which it forms a part, the Bill of Rights is not merely a catalogue of enumerated me rights but rather a reservation of us-rights in a presumed social context. It marks out an ambit of reserved activity and self-governance not as mere options but as commitments.

When the Bill of Rights is understood as an organic whole it can be seen how far we have fallen from the social and political reality it presupposes.  In lieu of direct and personal involvement in his immediate economic and social affairs, the average American is alienated from both his labor and his franchise.

The result confirms the grimmest prophecies of both Durkheim and Marx. The vast majority of Americans do not work for themselves but for hire; they are not directly involved in the management, cultivation and protection of their own communities but hire out civic services;  they do not create their own culture but passively accept the entertainments and recreations provided to them by purveyors of inanity and junk. The picture of Americans in their Third Century is one of slothful political obesity.

Police violence, drug violence, domestic violence, and deranged violence are equally symptoms of the underlying economic and political anomie which afflicts American society.  To call for gun control without addressing the toxicity of police culture, to call for police control without addressing the toxicity of ghetto culture to call for control in lieu of civic participation only serves to perpetuate the underlying alienation.

Alas, the wasteland of American society is so de-educated, fragmented, degraded and impoverished that it falls into the category of a Quixotic fantasy to call for the restoration of civic chivalry.

Nevertheless, there’s always hope and prayer. As with physical fitness, people gain in responsibility the more they are given responsibility. Out of the chaos and disaster of American urban life there should arise a unanimous cry for a re-communalizing of the metropolis in such ways that citizens directly and actively participate as a matter of duty and right in the policing of their communities. 

Civic participation does not require a degree. It is based on animated involvement guided by common sense. Those of us who have worked with (or on) juries are left with an abiding wonderment at how well the system works even when we disagree with the result and even when the result is the occasional outrage. Communities have experimented  with “youth juries” for juvenile offenders with promising initial results.  Jury trials should be encouraged rather than discouraged and jury service should be compensated according to financial need on a progressive scale so that a broad spectrum of citizens can look forward to serving.

Similarly, mandatory firearm education should be part of  secondary education so that all youths are taught how to use weapons with an abiding respect for their lethal consequences.  Both youths and adults should work with a smaller core of professional police in patrolling neighborhoods and in supervising and setting standards for their patrolling. 

It follows, almost without saying, that a broad spectrum of national services should be established.  But these services need not be drawn on lines requiring two or three year full time commitments. They should be administered locally and can be calibrated to dovetail with a variety of individual circumstances at different stages in life. 

Until the global capitalist economy collapses, it is not possible to return to the days of truly local agrarian economies.  But as Herbert Croley, the founder of the American Progressive movement, understood, even in an industrial and national context it is possible and desirable to stimulate civic and economic participation “from below.”

Until the Bill of Rights is taken as a charter for political participation, the country will continue to be victimized by its own failings.

©Woodchip Gazette, 2012

.

Of Jokers and Cheshire Cats

“Words had lost their ordinary meaning... and Athenians had lost the capacity for simplicity of speech which is the mark of a noble man.”  -- Thucydides, Peloponnesian War.

The Supreme Court has upheld the core provisions of Obamacare.  The predictable result will be a lot of crowing and scrambling from the usual quarters; but whether the cause of constitutionalism has much to crow about is another matter.

As heard by the Court, National Federation of Independent Business v. Sebelius   involved two substantive questions: (1) whether Congress could require people to buy medical health insurance and penalize them if they failed to do so, and (2) whether the Federal Government could force the states to participate in the expanded provisions of the Medicaid program by taking away their existing funding if they failed to do so.  In a fragmented decision, the Court upheld the law, more or less five to four on the first question and 3+2-4 on the second.

Since most people are swayed by the objects of their desires, there is bound to be a storm of blustering outrage from the right met with vindictive exultation from the “leftish” media over Justice Scalia’s supposed defeat.  Without doubt the providing of health care is one of the most pressing social and economic issues of the day and the arguments on how to do so are well delineated by now. But as important as any result is how the Court gets there and, in this light, the Court’s opinion is yet another step onward in its ongoing destruction of language and hence what we call “the rule of law.”

This article is not so much about health care as about jurisprudence and about how a thicket of evasions, equivocations and idiomatic devices have hollowed out guided discourse.

Artifice all but reeks and drips from the very first sentence of the opinion. A preliminary question the Court had to face was whether it could hear the case at all.  The Government had urged, as one of its arguments, that the individual mandate was really just a kind-of tax that should be upheld under Congress’s indisputable power to levy taxes.  The problem with this argument was the long standing and equally indisputable rule that a tax cannot be challenged in court until it is actually imposed.  Since the individual mandate does not take effect until 2014 there was nothing to hear, yet. 

The Court’s majority opinion, written by Chief Justice Roberts, neatly killed two birds with one stone: the mandate was a lawful tax under the Constitution’s Tax & Spend Clause but it was not a tax for purposes of contesting the matter in court.  Such a two-faced argument, however it is turned, is simply too clever for honesty. 

But even with respect to the substantive question of whether the mandate was a tax the majority’s argument was specious. In sustaining the individual mandate on its merits, Chief Justice Roberts framed the issue thus:

    “The most straightforward reading of the mandate is that it commands individuals to purchase insurance. .... After all, it states that individuals “shall” maintain health insurance. ....   Under the mandate, if an individual does not maintain health insurance, the only consequence is that he must make an additional payment to the IRS when he pays his taxes. .... That, according to the Government, means the mandate can be regarded as establishing a condition —- not owning health insurance -— that triggers a tax -— the required payment to the IRS. Under that theory, the mandate is not a legal command to buy insurance. Rather, it makes going without insurance just another thing the Government taxes, like buying gasoline or earning income.  (Opn. pp. 31-32 [emph. added].)

The Court smiled upon the theory and in support of this cleverness cited Crowell v. Benson, (1932) 285 U. S. 22, for the proposition that  “[t]he question is not whether that is the most natural interpretation of the mandate, but only whether it is a ‘fairly possible’ one.” (Id., at p. 62.)  Among lawyers this is known as the “laugh test”  -- can you say it with a straight face?  Apparently so, since the Chief Justice did not dissolve into convulsions of uncontrollable mirth when he read his opinion from the bench.

The attentive reader might notice the broken analogy between “buying gasoline or earning income” and “not buying insurance.”  The reader might wonder if this means that the government could tax “not earning income.”  The question can be asked with a straight face given that for many years England did in fact penalize poverty (Vagabonds and Beggars Act 1495) and such legislation survived in the United States until 1972.

Could not the Court have come up with a better theory, one that did not put such a strain on facial muscles? After all most everyone thought that the decision would hang on  a straight up or down reading of the Commerce Clause.

The jurisprudence of the Commerce Clause is nothing less than the domestic history of the United States in legal form.  The clause grants Congress the power “to regulate Commerce with foreign Nations, and among the several States, and with the Indian tribes.”  As it applied to the “several States” it was most likely intended to prevent the states from enacting protective tariffs against one another as they sought to become economically autarchic to the detriment of general prosperity.  But it very quickly became evident that a country which was half pluribus and half unum was embroiled in numerous and varying inter state contacts. As the nation became more and more economically developed and entangled so too did the Commerce Clause which, through a variety of jurisprudential “theories,” sought to accommodate economic necessities.

At first the clause was held to authorize regulation of commerce that directly inter-coursed between two states, such as ferryboats and railways. (Gibbons v. Ogden (1824) 22 U.S. 1.)  It was then held to authorize legislation over indirect impacts on inter-state trade, as for example price fixing among meatpackers in stockyards which, the Court said, "are but a throat through which the current [of commerce] flows.” (Stafford v. Wallace (1922) 258 U.S. 495; also Swift v. United States (1905) 196 U.S. 375.) Lastly it was held to authorize regulations over local activities which had an indirect effect on the flow of commerce.

The high water mark of federal commerce clause regulation came in 1942 with the decision in  Wickard v. Filburn, 317 U. S. 111 which Justice Scalia’s dissent called “the ne plus ultra of expansive Commerce Clause jurisprudence.” (Opn. p. 3.)  It was also the ne plus ultra of judicial sophistry.

There is no dispute as to what Wickard held.  Roscoe Filburn was back-country Ohio farmer who grew some wheat for his own consumption.  He asserted that, as a purely local and non-commercial grower, he was exempt from federal regulation.  Nope.  The Court held that by not participating in interstate commerce Filburn affected interstate commerce as much as if he had participated in interstate commerce and was therefore subject to federal regulation.  

In holding that “out” means “in” the Court announced a rule that could be used to justify anything. Indeed, those who favored federal intervention and regulation regarded Wickard’s Joker as an all purpose rationale  -- one merely had to string together a series of potential “impacts” on commerce.

It was no surprise that the Administration and those in favor of Obamacare, argued that the individual mandate was lawful under Congress’s power to regulate interstate commerce.  If government can destroy gallons of milk to support the price, why can’t it require the purchase of milk to drive the price down?  Liberal commentators excoriated Justice Scalia’s evil simple-mindedness when he asked during oral arguments whether the government could force a person to buy broccoli.

However, in the denouement, except for Justices Ginzburg and Sotomayor, the Court agreed with Scalia. As Chief Justice Roberts wrote,

“Congress thought it could enact such a [mandate] under the Commerce Clause, and the Government primarily defended the law on that basis. But, ... the Commerce Clause does not give Congress that power.” (Opn. pg. 32.)

In so holding, the Roberts-Scalia opinions continued a tepid retreat from Wickard that began under Chief Justice Rhenquist, when the Court held that the rule in Wickard did not apply to purely social or anti-social activities but required at least a true economic nexus. (Printz v. United States, (1997) 521 U. S. 898, 933-935.) 

In the present case, both the majority and the dissenting conservatives sought a further limitation on Wickard’s reach. They agreed that the Commerce Clause authorized regulation over existing economic activity but could not be used to compel an activity.

 “Our precedents recognize Congress’s power to regulate “class[es] of activities,” .... [W]e have never permitted Congress to anticipate that activity itself in order to regulate individuals not currently engaged in commerce. Each one of our cases,....involved pre-existing economic activity.” (Opn. pp. 25-26.)

Given this part of the majority opinion, most of Scalia’s opinion could be described as “dissenting to the choir.”    The true dissent came from Ginzburg’s concurring opinion scolding the choir. 

Justice Ginzburg argued that Congressional power under the Commerce Clause was “plenary” and “practical” (Conc. p. 14). Even before Wickard its “capacious power extend[ed] even to local activities” (p. 15) and certainly since Wickard cultivators had been ordered to curtail or cease production (p. 22).  As to how “ceasing” included “starting” -- and to Roberts'  incredulous impatience -- Ginzburg cited an antiquated, albeit possible, 18th century definition that “to ‘regulate’ meant,” among other things, “to require action.” (Conc. p. 23.)

Her opinion included a lengthy recapitulation of all the medical and economic needs and defects involved in the U.S. health care system, at the end of which she concluded that Congress had “acted reasonably in requiring uninsured individuals to purchase insurance” and that the Court could not gainsay a “regulatory scheme” that had a “rational basis.” (Conc. pp. 17-18.)

In so arguing, Ginzburg incorporated equal protection concepts into the Commerce Clause.  Under the Equal Protection Clause, when a law treats similarly situated persons in unequal ways, the court asks whether there is a “rational basis” for the discrimination; for example, is it reasonable to exclude old people from military service. 

The defect in Ginzburg’s argument was that the rational basis “test” looks to see if the law has unconsitutional effect but it presupposes that the law flows from a constitutionally authorized source.  The Constitution itself is a subset of all reasonable alternatives.   Something may be reasonable and still not constitutional which is why justices of yore spoke of “constitutional reasonableness” -- that is, logic and common sense within the parameters of the Constitution.   Rational Basis as a test of constitutional authority is a simply a maleable device which adds another Joker to the deck.

The same might be said of the Necessary & Proper Clause.   Needless to say, Justice Ginzburg was of the view that, in addition to doing anything “reasonable” Congress also had the power to do anything it might deem “necessary.”   Certainly, if Congress has jurisdiction over an enumerated subject matter (e.g., “commerce,” “taxes” or “defense”) its jurisdiction includes a subsidiary power to use any necessary and proper means to implement the authority given. But, as Roberts reaffirmed, the clause does not allow Congress to do anything it thinks is necessary and proper for the general welfare.  If it did, there would have been no point in enumerating the specific powers granted to Congress. 

Thus far, the battle lines were rather clearly drawn. The Ginzburg faction was of the view that the Commerce Clause (as interpreted in Wickard) granted Congress a plenary power “to bind and to loosen” on Earth if not in Heaven. The only limitation was a measure of reasonable expediency in choice of legistated policy. In contrast, the Roberts Scalia faction was determined either to limit or at least not to extend Wickard so as to include a mandate to engage in commerce. 

But between the two lines, lay a field of question marks.  As Ginzburg put it: Why should Roberts “strive so  mightily” to limit congressional power under the Commerce Clause only to uphold the law as a non-tax tax under the Tax & Spend Clause?  She found this “puzzling” and confessed, “I find no satisfying response to that question in his opinion.” (Conc. p. 37.)  

An answer may be perhaps be puzzled out by focusing on what Roberts and Scalia actually did, which was to make explicit a limitation on Wickard which had hitherto never been expressly articulated.

In reaching its conclusion that Obamacare could not be justified under the Commerce Clause, both the majority and the dissents stepped lightly over some singular precedents. Asserting that commerce clause regulation only applied to a pre-existing activity,  Chief Justice Roberts cited Heart of Atlanta Motel, Inc. v. United States (1964)  379 U. S. 241 (prohibiting discrimination by hotel operators) and Katzenbach v. McClung (1964) 379 U. S. 294 (prohibiting discrimination by restaurant owners).

In point of law, both the Roberts majority and the Scalia dissenters were wrong.  What Roberts omitted to note was that both those landmark civil rights cases required hotel and restaurant owners to enter into contracts with persons they preferred not to have economic activity with.  The whole and sole basis of both decisions was that not serving African-Americans diminished the overall level interstate commerce.  In  Ollie’s Barbecue Case (Katzenbach) the court went so far as to detail the number of pounds of interstate hamburger meat at stake. It was a pure Wickard “analysis” applied to engineer a result.

It did not hold water to distinguish Katzenbach and Heart of Atlanta on the grounds that they only regulated “pre-existing” economic activity.  Indeed both the frying of burgers and the providing of beds pre-existed as much as the “selling of medical insurance” pre-exists.  What does not pre-exist in all three instances is a particular contract between two parties. Of course, by virtue of traveling, African-American customers were not themselves engaged in a "pre-existing business activity" but neither was farmer Filburne.  The whole point of his case was that he was not engaged in commercial activity pre-existing or otherwise; and the whole point of Wickard was that it did not matter.   Had the majority wanted to uphold the ACA under the Commerce Clause it could have.

Although Ginzburg refrained from pointing out these non-distinctions, she was correct to note that Katzenbach had already imported the rational basis test into Commerce Clause law.  Ginzburg’s opinion was far too overly larded with practical, legislative considerations but her reading of precedents was correct and it would have sufficed to argue for the mandate under them.

On the other hand, what Roberts managed was to uphold the mandate while imposing an explicit limitation on the Commerce Clause without calling into question two of the most important civil rights cases of the last century.

Whether or not one agrees with the outcome, the jurisprudential result is that we now have a ne plus ultra plus one.  In addition to Wickard’s Joker of outs which are in, we now have the Cheshire Cat of non-tax taxes which may be enforced by the Internal Revenue Service turned into policing agency. 

Like Wickard before it, National v. Sebelius is a brutal example of what is known in legal parlance as “outcome determination” -- the sum and substance of which is the view that jurisprudence consists in rustling up whatever congeries of words provides a “rationale” for the result. 

For most of the 20th century, outcome determination was the standard official doctrine of American jurisprudence. It derived from dean Roscoe Pound’s theory of “sociological jurisprudence” which redefined law as a “tool of social engineering.”  In his view, the law itself did not inherently lead to any result but was rather an array of so-called functions, rationales and tests aimed at achieving any desired purpose. 
 
In Germany, outcome determination was known as “teleological jurisprudence.”  Although the “method” was not developed by the Nazis, it was enthusiastically embraced by them.  In the Third Reich, the function of law was to “legalize” the chosen policies of the state. Law would mean what it needed to mean in order to promote the health and safety of Volk Gemeinschaft or Folk Community, as determined by the Fuhrer and the Party. 

Result-oriented jurisprudence is the dirty little secret of American caselaw.  Justice Ginzburg let it slip when she criticized Justice Roberts’ mighty labors stating that she saw “no reason to undertake a Commerce Clause analysis that is not [sic] outcome determinative.”  (Conc. p. 37, fn. 14.)  Roberts’ decision was outcome-determinative, it just wasn’t outcome-determinative in the way Ginzburg wanted. 

Ginzburg’s Footnote provides a glimpse into the methodological habits of the Court. As we have shown, Ginzburg had precedent on her side.  Put another way, Katzenbach and Heart of Atlanta had already done the outcome-determinative dirty work.  All Ginzburg had to do was invoke stare decisis -- the rule that, whatever disputes preceded it, a precedent, once decided, stands. Instead, rather than conforming themselves to precedent, both sides engaged in choosing their desired result and arguing over  how to rustle up the words to “legalize” it.

There are those, both in academe and the press, who are fond of sagely and cynically intoning that Supreme Court decisions are “just politics.”   Of course they are politics; the Court has no jurisdiction in Heaven.  The more salient question is: what kind of politics? The traditional answer has been: that kind of political decision which is guided by the sound and sense of words.

“Law” has no physical reality apart from the shape of words. In the tradition of the Common Law, rule of law or due process de loi  referred to “custom and usage” in the way we talk about things. In England, law students “read law” in order to familiarize themselves with the conversation that has taken place over two thousand years. In this light, jurisprudence becomes a qualitative politics which achieves consistency by adhering to the plain meaning of words while accommodating change through adaptive analogy and nuance. 

Of course, there is no one way to read words which, after all, are not numbers.  Words have a range of “values” depending on context and interpretation, which is why the Supreme Court has nine judges instead of just one. The idea was that a filtration of words which was agreed upon by all was apt to be the better reading of our custom and usage.  The better reading depends on conforming one's self to the gentle constraints of language.  The near permanent division of the Court into 5-4 splits is simply an reflection of the bankruptcy of sociological jurisprudence which has, indeed, reduced the court to the most vulgar sort of politics... the kind which is guided solely by expedience.

None of this matters to those who simply want to achieve a result.  But the reason the court upheld Obamacare had almost nothing to do with anything it said and this, in itself, has serious political consequences. 

A rule of law based on objects of desire is no law at all but simply heteronomy of will. Instead of an unfolding from a consistency of speech, we are left with Jokers and Cheshire Cats. Instead of an instructive discourse between the Court and the public, people are left to speculate as to the private motivations justices might have had for choosing a result which they propped up with a heap of meaningless “rationales.”  [FN 1]

It is true that the genius of the American system is that  it prefers to chop logic instead of heads.  That is nothing to sniff at and the Roosevelt Court’s “switch in time” saved more than just nine.   The rhetorical devices of analogy, metaphor and equivocation are the means by which the law adapts and innovates.   But to say that judges live on the slippery slope of analogy doesn’t mean they have to ski to the bottom.  Too much slipping and chopping confuses thought and reduces discourse to nothing more than articulated howls -- words which mean nothing except for their emotive content. At that point uniquely human society ceases to exist. (Aristotle,  Politics, Bk. II.)  In my opinion, the Court’s decision dis-served the rule of law which first and last  presupposes a spirit of candor and simplicity in the use of speech.

©Woodchip Gazette, 2012.

.