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Civil Rights Law Journal Article: The Bill of Rights in Its 200th Year


As we justly celebrate the 200th anniversary(2) of our Bill of Rights, which James Madison, its primary author and legislative sponsor,(3)referred to as “the great rights of mankind,”(4) we note with pride that this uniquely American innovation&emdash;a comprehensive set of express, supreme written limitations on the powers of government and guarantees of individual freedom and equal justice&emdash;continues to gain adherents all around the world.(5) Few Americans would gainsay the bold and simple promise laid down by the Supreme Court at the close of the Civil War: “The Constitution of the United States is a law for rulers and people, equally in war or peace, and covers with the shield of its protection all classes of men, at all times, and under all circumstances.”(6)

Yet, at the dawning of the third century of the remarkable American experiment in limited self-government, in the bicentennial of the adoption of the most famous and inspiring part of that Constitution, the Bill of Rights, we find ourselves in the midst of a war&emdash;a “war on drugs”&emdash;fighting against a dangerous and loathsome “class of men”(7)&emdash;those who would enrich themselves(8) by selling the death and misery of such drugs to our people(9)&emdash;which raises hard questions about the enduring truth of those words, and which sternly tests our continuing commitment to the principles which they adjure. As we wrestle as a society with the grave challenges posed to our domestic security and civic morality by crime in general, and by drug crime in particular, it is far from assured that our political culture or our judicial system, itself, is still willing to pay the price which fidelity to our fundamental precepts demands.

Over the last three decades, we have witnessed an explosion in the abuse of drugs and alcohol in our society, which has taken a heavy toll on our people and our institutions. Outraged by an epidemic of drug-related crime, (10) and by the sight of residential neighborhoods being turned into open-air drug markets, the public has, understandably, looked to the criminal justice system for solutions. The reaction of the popular branches of government&emdash;the legislatures and the executives&emdash;has been an unprecedented effort to win the drug war by getting tough on drug crime. As a blue-ribbon American Bar Association Special Committee has recently reported,(11) the resulting torrent of drug arrests,(12) prosecutions,(13) and convictions(14) has placed extraordinary demands on every segment of the criminal justice system,(15) stretching to the very limit the already overtaxed and underfunded resources(16) available to our police, prosecutors, public defenders, courts, and correctional institutions.(17) The strain of this effort has led to “crowd[ed] dockets and jails, and dilut[ed] law enforcement and judicial efforts to deal with other major criminal cases.”(18)

When these intensive and costly law enforcement efforts(19) have failed to eliminate, or even to control, the problem,(20) it has been the criminal justice system at which the public has directed its wrath and disappointment.(21) What the public does not know, however, is that the vast majority of serious crimes&emdash;more than 90% of them, in fact&emdash;never even reach our criminal justice system. Indeed, government crime statistics show that less than ten percent of the crimes which most concern the public even result in arrest.(22) The public’s expectations that the courts should control or prevent crime, and drug crime in particular, “cannot be reconciled,” the task force reported, “with the sense of criminal justice professionals, strongly supported by the data, that the system itself has a limited role in crime control and crime prevention.”(23) “The resulting frustration” of those whom the public mistakenly holds accountable for the failure to eliminate the intractable drug problem, the ABA Special Committee report concludes, “has led to instances of corruption(24)and the ignoring of constitutional restrictions by some criminal justice officials.”(25)

Whether the emphasis on criminal prosecution as the primary weapon(26) in the drug war has, on balance, produced desirable results sufficient to justify its tangible and intangible costs is still an open, and debatable,(27) question, which is beyond the scope of this article.(28) Unfortunately, one result is unmistakable: the drug war has led to an increasing climate of antipathy toward our criminal justice system in general,(29) and toward the individual protections safeguarded in our Bill of Rights, in particular.

Most of those directly involved in the day-to-day processing of the burgeoning number of criminal cases know that it is a lack of adequate resources,(30) not enforcement of our constitutional rights,(31) which is most responsible for what the Supreme Court has referred to as a “veritable national crisis in law enforcement caused by smuggling of illicit narcotics.”(32) Yet, a recent public opinion survey reveals this chilling result: sixty-two percent of respondents, i.e., more than three-fifths of our population, would be willing to give up some of their constitutional rights in order to stop illegal drug trafficking.(33) Pressured by the public’s understandable impatience to “win” the war on crime, and frustrated by the real difficulties of doing so through a criminal justice system not equipped for the task,(34) politicians at every level of government frequently respond by supporting ever more stringent criminal laws, showing ever less concern for the protection of individual rights.(35) The Supreme Court, with a solid conservative majority in the ascendancy,(36) and increasingly willing&emdash;principles of judicial restraint and stare decisis to the contrary notwithstanding(37)&emdash;to overrule prior expansive interpretations of the rights of the accused, frequently recurs to “the horrors of drug trafficking,”(38) to justify its growing tendency to leave to the popular branches of government (as a matter of separation of powers)(39), and to the states (as a matter of federalism)(40), the task of balancing the rights of the individual against the interests of the majority.(41) Indeed, the High Court appears to be rapidly accelerating delivery on the political promises of recent presidents not only to limit, but to aggressively roll back,(42) the perceived excesses of the Warren Court of the 50s and 60s in the area of the rights of the accused, becoming what one of its members has called “a loyal foot soldier” in the war on drugs.(43)

As a result of these developments, and of sensationalized media coverage of criminal justice issues,(44) it has become ever more fashionable to decry the perceived excesses of the modern Supreme Court’s supposed undue emphasis on the “rights of criminals,” as opposed to the “rights of the public” or those of the victims of crime. Much of this criticism appears to be based upon the premise that the Warren Court wrote the guarantees of criminal due process into the Constitution during the 1950s and 1960s. True, before this era, scant attention had been paid by the Supreme Court to such protections, especially with respect to state prosecutions. But it is difficult to reconcile such attacks with the demonstrable fact that when the Framers chose to identify and enshrine the “Great Rights of Mankind” in the Federal Constitution, they, themselves, in the main chose guarantees which operate primarily, if not exclusively, to limit the scope and process of criminal prosecutions. Indeed, of the eight amendments containing specific guarantees, no less than four&emdash;the Fourth, Fifth,(45) Sixth, and Eighth&emdash;are devoted to the procedural rights of criminal defendants. As a matter of fact, as illustrated below, 14 of the 25 specific protections contained in the Bill of Rights, more than half, operate exclusively to circumscribe the powers of the government as prosecutor, while only 2 such guarantees always arise outside the criminal justice process.

The blessings of liberty are easily appreciated and always more comfortably lauded when viewed in the abstract; it is only when they must be applied, in real controversies, to limit the ambit of governmental action, action pursued in the name and in the collective interest of a concerned community at large, that they invite hostility and opposition.(46) As in past periods of great strife and conflict, the specter of a hated and feared enemy has aroused the passions of our people for fast and simple remedies.(47)

It is the very pressure&emdash;albeit, democratic pressure&emdash;which is generated in support of such nostrums, which makes them so dangerous to our liberties: Precisely because the need for action against the drug scourge is manifest, the need for vigilance against unconstitutional excess is great. History teaches that grave threats to liberty often come in times of urgency, when constitutional rights seem too extravagant to endure. The World War II relocation-camp cases, Hirabayashi v. United States, 320 U.S. 81, 63 S.Ct. 1375, 87 L.Ed. 1774 (1943); Korematsu v. United States, 323 U.S. 214, 65 S.Ct. 193, 89 L.Ed. 194 (1944), and the Red Scare and McCarthy-Era internal subversion cases, Schenck v. United States, 249 U.S. 47, 39 S.Ct. 247, 63 L.Ed. 470 (1919); Dennis v. United States, 341 U.S. 494, 71 S.Ct. 857, 95 L.Ed. 1137 (1951), are only the most extreme reminders that when we allow fundamental freedoms to be sacrificed in the name of real or perceived exigency, we invariably come to regret it.(48)

As a consequence of these powerful currents of emotion, of the understandable zeal of the present war’s combatants to defeat drug abuse and to put its purveyors behind bars, and of their impatience to remove all barriers to the success of their mission, this drug war poses a serious threat to a number of individual constitutional guarantees of fairness and freedom as they have, until recently, come to be understood and applied. Even more alarming than the prospect of a narrowing of particular rights protected by the first ten Amendments, however, is a growing public, political, and even a judicial intolerance for the very core concept of the Bill of Rights, itself: the fundamental principle that government’s police powers&emdash;even its authority to enforce its criminal laws&emdash;are subject to substantive, enforceable limitations which are to be honored, notwithstanding the incidental cost (which is much smaller than is commonly assumed) to legitimate governmental objectives, for the ultimate purpose of ensuring our citizens’ inalienable rights. This is a time for Americans, and in particular for Americans involved in our criminal justice system,(49) to ask themselves whether we measure up to James Russell Lowell’s immortal challenge: “They have rights who dare maintain them.”(50)



The essential dilemma of democratic government, the Framers realized, lay in the need to give it sufficient powers to govern, but not enough to establish tyranny. As Madison explained so succinctly in The Federalist: In framing a government which is to be administered by men over men, the great difficulty lies in this: You must first enable the government to controul the governed; and in the next place, oblige it to controul itself.(51)

What is often forgotten is that the Bill of Rights was invented to restrain not a monarchical or oligarchical government, but a democratic, republican one. It is easy to understand the need to protect the subject from an unelected tyrant; less easy to comprehend the same requirement in a government of, by, and for the people themselves. A large part of the answer lies in the Framers’ belief that oppression and invasion of the rights of the individual were as much to be feared by popular governments, as by autocratic ones. James Madison and his contemporaries well understood that in a republic, the real danger of despotism would come from “the majority of the Community … not from the acts of Government contrary to the sense of its constituents.”(52)

To preserve individual rights, Madison felt, it was necessary to insulate them from the threat of excessive measures adopted in response to the passions of an aroused and single-minded populace during times of crisis. The great object in view is to limit and qualify the powers of government…. [The Bill of Rights] ought to be levelled against that quarter where the greatest danger lies, namely, that which possesses the highest prerogative of power. But this is not found in either the executive or legislative departments of government, but in the body of the people, operating by the majority against the minority.(53)

Writing with the perspective gained from more than a century-and-a-half of experience with the ever-flowing tides and currents of one popular cause after another, and in the midst of a terrible world war against the rising forces of totalitarian oppression, Justice Robert Jackson, a former Attorney General of the United States and future prosecutor in the Nuremburg Trials, explained the ageless and unchanging purpose of the Bill of Rights in our democratic frame of government:

The very purpose of a Bill of Rights was to withdraw certain subjects from the vicissitudes of political controversy, to place them beyond the reach of majorities and officials and to establish them as legal principles to be applied by the courts. One’s right to life, liberty, and property, to free speech, a free press, freedom of worship and assembly, and other fundamental rights may not be submitted to vote; they depend on the outcome of no elections.(54)


The long, painful, and uneven history of freedom from arbitrary government, from Magna Cartain 1215, to the Parliamentary Petition of Right of 1628, to the English Bill of Rights of 1689, to the Virginia Declaration of Rights of 1776, to the Constitution of 1787, and finally to the Federal Bill of Rights adopted in 1791, is in large measure a chronicle of enlightened popular reaction to abuses of the criminal laws perpetrated by both Parliament and the Crown.(55) The Framers knew that constant vigilance was required to check the excesses which were likely to occur in the heat of political, as well as military, battle. To that end, they insisted on arming those individuals whom the government would seek to punish, i.e., to prosecute, with the shield of that very Bill of Rights(56) which we are now celebrating.

That shield was designed to be upheld by an independent judiciary,(57) which the Framers saw as an “impenetrable bulwark against every assumption of power in the legislative or executive,”(58) a means of defending individual liberties against governmental overreaching in the prosecutive function. By providing a means for checking the abuses of government, even democratic government, directed against criminal defendants, even the most contemptible among them, the Framers sought to ensure that the rights of all citizens might be protected. It was first and foremost the criminal justice system which the Framers had learned through painful experience was most in need of principles of restraint and regulation; Professor Schwartz, for one, has expressly noted what should be obvious: “American bills of rights sought foremost to correct the deficiencies of English criminal law.”(59) And so, when it came time for the Constitution to be ratified by the states, it was a Federal Bill of Rights severely limiting the powers of the prosecution which those states insisted upon as a condition for joining the Union.

When, on June 8, 1789, Madison introduced his proposed federal Bill of Rights, he had as a basis a printed pamphlet containing all of the recommended amendments proposed by eight of the state conventions which had ratified the Constitution. These contained over two hundred provisions in all, comprising nearly one hundred distinct amendments.(60) Professor Schwartz writes, “The state proposals reflected the consensus that had developed among Americans with regard to the fundamental rights that ought to be protected by any Bill of Rights worthy of the name.”(61)Professor Rutland, Editor-in-Chief of The Papers of James Madison, concurs: Madison had gleaned his final list from over 200 separate proposals made in the state ratifying conventions. He had distilled the key proposals common to all the state plans…. Madison skirted the controversial proposals of the states…. These matters did not belong in a set of amendments meant to delineate the inviolable rights of mankind, Madison reasoned. Explaining his selection to Governor Edmund Randolph, Madison said he had tried to limit his amendments “to points which are important in the eyes of many and can be objectionable in those of none.”(62)

There are 25 distinct individual rights spelled out in our first ten amendments.(63) Of these, at least 20, 80 percent of the total, involve liberties which were chiefly aimed at, and have been most often interposed in, limiting the scope or regulating the process of the criminal justice system. These are: (1) Establishment of Religion; (2) Free Exercise of Religion; (3) Free Speech;(64) (4) Free Press; (5) Assembly; (6) Petition ; (7) Searches and Seizures; (8) Grand Jury Indictment; (9) Double Jeopardy; (10) Self-incrimination; (11) Speedy Trial; (12) Public Trial; (13) Jury Trial; (14) [Cause and Nature of] Accusation; (15) Confrontation [of Witnesses]; (16) [Compulsory Process for] Witnesses; (17) [Assistance of] Counsel; (18) Bail; (19) [Excessive] Fines; and (20) [Cruel and Unusual] Punishment. Of the other five, one, the Fifth Amendment’s Due Process Clause, has so many varied applications, both criminal and civil, that its “primary” context is extremely difficult to discern.(65) Two others, the Second (right to bear arms) and Third Amendments (no quartering of soldiers in peacetime) arise too infrequently to be characterized accurately. Finally, only two rights, the Just Compensation Clause of the Fifth Amendment, and the Civil Jury Trial guarantee of the Seventh Amendment, have no bearing on the operation of the criminal justice system. An absolute majority of the specific guarantees in the Bill of Rights as a whole&emdash;14 of 25 in all&emdash;apply exclusively to criminal prosecutions:

The Fifth Amendment guarantees (1) indictment by a Grand Jury; (2) against being placed twice in jeopardy for the same offense; and (3) against self-incrimination. The criminal suspect is afforded rights under the Sixth Amendment (4) to a speedy trial; (5) to a public trial; (6) by an impartial jury; (7) after having been informed of the nature and cause of the accusation; (8) to be confronted with the witnesses against him; (9) to have the assistance of counsel; and (10) to have compulsory process for obtaining favorable witnesses. The Eighth Amendment prohibits (11) excessive bail; (12) excessive fines; (13) and cruel and unusual punishments. A fourteenth guarantee, the right to be free from unreasonable searches and seizures under the Fourth Amendment,(66) is all-but-entirely associated with the criminal process as well, though it does have a few applications unrelated to criminal prosecutions.(67) It is thus the Bill of Rights, not its subsequent interpretation by the courts, which places the rights of criminal defendants first and foremost among the imperatives of our fundamental charter.(68)

This calculation does not even account for several rights against arbitrary prosecution which are to be found within the body of the original Constitution, itself. For example, both the federal and state governments are prohibited from passing any ex post facto laws(69)or Bills of Attainder.(70)The federal government’s powers to suspend the privilege of the writ of habeas corpus is limited to times of actual rebellion or invasion.(71) The crime of treason against the United States is strictly defined in Article III, Section 3, which also forbids any conviction unless on the sworn testimony of two witnesses to the same overt act, or on confession in open court. Nor does it include implied rights, such as, inter alia, the presumption of innocence,(72) the requirement that guilt be proved beyond a reasonable doubt,(73)the requirement that the prosecution disclose exculpatory evidence to the defense,(74) the right to represent oneself, without a lawyer,(75) or the proscription against rules of procedure which upset “the balance of forces between the accused and his accuser,”(76)which, though not spelled out anywhere in the constitution, have nevertheless been held to be “a basic component of a fair trial under our system of criminal justice.”(77)

Because of this constitutional concentration on the criminal process, those who seek to “oblige [the government] to controul itself” in this process, for the most part criminal defense attorneys,(78) do so usually by invoking one or another of the procedural safeguards adopted by the Framers 200 years ago on behalf of individual criminal defendants, many, if not most, of whom are in fact guilty of some crime. It is, in fact, on the battleground of the adversarial process for determining the fate of each such criminal accused that the nature, scope and extent of the fundamental liberties of all Americans are determined. It is through combined action of these many different arguments, on behalf of distinct, and often undesirable individuals, that the Framers understood that the rights of the general, innocent mass of citizens would be safeguarded.

The experience of the colonists taught that the enforcement of criminal laws by troops and police was the way the government established power and controlled its subjects…. The framers meant to limit that power…. The fundamental notion of the citizen’s superior rights as against the government, and that the government’s powers were limited (two separate and distinct concepts) were the key philosophical bulwarks against potential government tyranny. The rights of the citizenry, constitutionally built into the criminal justice system, limit governmental power from arrest to punishment.(79)

The existence of a written bill of rights, having the force of supreme constitutional law, at the disposal of courts vested with the power to enforce its commands, may occasionally result in an obviously guilty defendant being set free, but this is not “because the constable has blundered.” Rather, it is in order “to protect us from unlawful police invasions of our security and to maintain the integrity of our institutions…. The innocent and society are the principal beneficiaries”(80) each time one of our fundamental rights is enforced, even if at the behest, and for the incidental benefit of, a wrongdoer&emdash;even a drug dealer.

Surprising as it may be to some, conviction and punishment of the guilty is not the only purpose of our complex system (much, if not most of it prescribed in our constitutions and bills of rights) of procedures and rules governing the prosecution of criminal offenses: Speaking for a majority of the Court just before his retirement, Justice William Brennan recently reminded us that “various constitutional rules limit the means by which the government may conduct [the] search for truth in order to promote other values embraced by the Framers and cherished throughout our Nation’s history.”(81) The Bill of Rights emanates from “the deep-rooted feeling that the [government] must obey the law while enforcing the law; that in the end life and liberty can be as much endangered from illegal methods used to convict those thought to be criminals as from the actual criminals themselves.”(82) Just a few months ago, in one of hisfinal opinions, Justice Thurgood Marshall, in dissent, reiterated the same crucial point:

Our Nation, we are told, is engaged in a “war on drugs.” No one disputes that it is the job of law-enforcement officials to devise effective weapons for fighting this war. But the effectiveness of a law-enforcement technique is not proof of its constitutionality. The general warrant, for example, was certainly an effective means of law enforcement. Yet it was one of the primary aims of the Fourth Amendment to protect citizens from the tyranny of being singled out for search and seizure without particularized suspicion notwithstanding the effectiveness of this method. See Boyd v United States, 116 US 616, 625-630, 29 L Ed 746, 6 S Ct 524 (1886); see also Harris v United States, 331 US 145, 171, 91 L Ed 1399, 67 S Ct 1098 (1947) (Frankfurter, J., dissenting).(83)

Madison and his contemporaries had a clear and mature understanding that the safeguards which the Bill of Rights guaranteed were not without their costs: that efficiency of governance would sometimes have to be compromised in order to ensure the general citizenry meaningful protection from the excesses of arbitrary government. Former Justice Potter Stewart gave voice to this general truth in the specific context of the most controversial criminal justice issue of all: the Fourth Amendment exclusionary rule: The exclusionary rule places no limitations on the actions of the police. The fourth amendment does. The inevitable result of the Constitution’s prohibition against unreasonable searches and seizures … is that police officers who obey its strictures will catch fewer criminals…. [T]hat is the price the framers anticipated and were willing to pay to ensure the sanctity of the person, home, and property against unrestrained governmental power.(84)


Nowhere in the Constitution, including the Bill of Rights, is it written that the courts should have authority to declare acts of the legislative and executive branches invalid because contrary to some provision of the Constitution. Yet today, this power “is the sine qua non of an effective constitution or bill of rights.”(85) It is hard to imagine any alternative means which could have been nearly as effective in making real the promises contained in our Bill of Rights. During times when we hear repeated complaints that activist judges are creating law, not interpreting it, in applying the Bill of Rights, it is worth noting that this indispensable doctrine, itself without a textual basis in the Constitution, was firmly established, not two decades, but rather more than two centuries, ago.

At the time the Constitution was adopted there was no overall consensus on the principle that courts had the ultimate authority to determine the constitutionality of a legislative or executive act. But the advent of written constitutions with specific declarations of rights expressing the “supreme law of the land” during the Revolutionary period, and the move toward judicial independence from the executive branch, ineluctably led toward the emergence of that doctrine as we know it today. “Inevitably when Americans believed that a legislature had exceeded its authority they argued that it had acted unconstitutionally, and they turned to courts to enforce the supreme law as law.”(86)

In a series of cases arising in the courts of the states during the 1780s, the notion that courts were empowered to declare a statute unconstitutional gained sway. In 1780, a New Jersey court apparently struck down as “contrary to the constitution of New Jersey,” a statute authorizing trial by a jury of six in forfeiture actions brought against those trafficking with the enemy.(87) Two years later, in Commonwealth v. Caton, 4 Call. 5 (Va. 1782), the Virginia Court of Appeals held “that the court had power to declare any resolution or act of the legislature, or of either branch of it to be unconstitutional and void….”(88) In Rutgers v. Waddington (N.Y. 1784), Alexander Hamilton argued with great force that a state enactment in derogation of the terms of a treaty should be held void as unconstitutional. His contentions, though inadequate to convince the judges in the case at hand, were nevertheless highly successful in the more important court of public opinion, and were quickly adopted and used by lawyers throughout the nation.(89) In 1786, in the unreported case of Trevett v. Weeden, a Rhode Island court, citing the statute’s repugnancy to the constitution, refused to take cognizance of a criminal information against a butcher charged with refusing to accept paper money of the state in payment for his merchandise. Newspaper accounts of the day, and a pamphlet published regarding the decision, gave the decision of the court wide dissemination.(90) A group of New Hampshire cases, The Ten Pound Act Cases (1786), is credited by Professor Levy as “the first in which an American court held a state enactment void.”(91) In the 1787 decision in Bayard v. Singleton,(92) North Carolina judges held that a statute inconsistent with the jury trial guarantee of the state’s Declaration of Rights “must of course . . . stand as abrogated and without any effect.”(93) Finally, in the 1788 Cases of the Judges of the Court of Appeals, Virginia’s judges refused to give effect to a statute imposing new tasks upon them, without additional compensation, declaring “that the constitution and the act are in opposition and cannot exist together; and that the former must control the operation of the latter.”(94) Citing this line of cases, Leonard Levy has written, “The principle of Marbury v. Madison (1803) thus originated at a state level before the framing of the federal Constitution.”(95)

At the Constitutional Convention, which created the separate judicial branch comprised of judges with lifetime tenure in Article III of the 1787 Constitution, itself a remarkable innovation, several of the delegates suggested that the Supreme Court would have a “negative” on the legislature, but still, no such power was alluded to in the Constitution itself. In The Federalist No. 78, however, Hamilton posited unequivocally the power of the courts to declare acts contrary to the proposed Constitution void and unenforceable:

There is no position which depends on a clearer principle than that every act of a delegated authority, contrary to the tenor of the commission under which it is exercised is void…. No legislative act, therefore, contrary to the Constitution, can be valid. To deny this would be to affirm that the deputy is greater than his principle; that the servant is above his master; that the representatives of the people are superior to the people themselves…. [It will be the special duty of the courts to keep the legislators] “within the limits assigned to their authority. The interpretation of the laws is the proper and peculiar province of the courts.

In any event, by 1803, Chief Justice John Marshall was able to declare for a unanimous Supreme Court in Marbury v. Madison(96)that this proposition was “too plain to be contested….” The question whether an act, repugnant to the constitution, can become the law of the land, is a question deeply interesting to the United States; but, happily, not of an intricacy proportioned to its interest…. The powers of the legislature are defined and limited; and that those limits may not be mistaken, or forgotten, the constitution is written. To what purpose are powers limited, and to what purpose is that limitation committed to writing, if these limits may, at any time, be passed by those intended to be restrained? The distinction between a government with limited and unlimited powers, is abolished, if those limits do not confine the persons on whom they are imposed, and if acts prohibited and acts allowed, are of equal obligation…. Certainly all those who have framed written constitutions contemplate them as forming the fundamental and paramount law of the nation, and consequently the theory of every such government must be that an act of the legislature, repugnant to the constitution, is void…. It is emphatically the province and the duty of the judicial department to say what the law is.

Judicial review may or may not have been a necessarily implied judicial power under the Constitution as written and ratified; it makes little difference. At least since Marshall’s opinion inMarbury,(97) though, it has been as much a part of the framework of our constitutional system as if set out in the Preamble itself, and it is the essential source, without which the Bill of Rights might be no more than a “parchment barrier” subject to “repeated violations … by overbearing majorities in every State,”(98) of the authority residing in the courts to enforce the protections of the Bill of Rights.


Because they necessarily circumscribe the powers of the prosecution in the enforcement of the criminal laws, i.e., in government’s critical role in protecting us from the predatory practices of those we fear and loathe, our fundamental rights are extremely fragile. It is no surprise that these rights may come to be viewed with little understanding or sympathy, or even with outright hostility, by the media and the general public; it is a shock, however, when prosecutors and judges (who, after all, live in the same culture too) betray the same prejudices.(99) When these protections are occasionally honored by the courts, as, for example by the application of an exclusionary rule denying to the government the fruits of a violation of one of our “great rights of mankind,” resulting in the reversal of a conviction, or in a disposition of serious criminal charges, such as drug offenses, favorable to a criminal defendant, the message that the accused “got off on a technicality” is the one most frequently heard.(100) The popular perception is that it is the courts’ “coddling of criminals” which interferes with effective law enforcement and hampers the prosecution of the war against drugs. Adherence to the guarantees afforded under the Bill of Rights is widely decried as a triumph, not for our basic freedoms, but rather of legalistic gamesmanship, of which cynical lawyers take unfair advantage on behalf of smirking, contemptuous gangsters. Surely it is not a healthy sign for the continued vigor of our fundamental rights that those who shoulder their intended constitutional responsibility of policing the governments’ adherence to the specific rules set out in our Bill of Rights are perceived, to an ever-increasing extent, by the drug warriors and by the general public as well, not as participants in the on-going process of self-government in the sense of Madison’s “great difficulty,” but rather, simply as enemies, standing in the way of the popular war effort.

Speaking specifically about the Fourth Amendment exclusionary rule, but in words which apply with no less force to any of the rules limiting the state’s arbitrary powers of punishment, former Federal Prosecutor and Maryland Attorney General Steven Sachs has explained: The rule is also very fragile, especially in today’s atmosphere of understandable public outrage at crime and at our perceived inability to do much about it. It is vulnerable to attack because its values are abstract while its price is tangible. It frequently excludes hard evidence, the truth, from trial. It appears to reward the undeserving criminal, whom it sometimes frees because “the constable blundered.” It seems to give aid and comfort only to the enemy in the war on crime. It makes almost no sense to citizens fed up with crime and impatient with legal “technicalities” who want to believe that crime would disappear if only courts would stop coddling criminals. That is why the rule, although it has plenty of responsible critics, has become a favorite whipping boy of anti-crime rhetoricians.(101)


Today our nation is engaged in a deadly serious, and much heralded, “war on drugs,” which, in recent years, has taken on many of the emotional and ideological trappings of a crusade. At the federal, state, and local levels, elected and appointed representatives of the popular branches of government&emdash;police, politicians and prosecutors&emdash;have single-mindedly, and often impetuously, thrown themselves into the struggle to find simple, quick, popular solutions to eradicate the deadly traffic in drugs which continues to blight our nation.(102)Given the horrors of drug abuse and drug-related criminal activity, the democratic imperatives which make this response politicallyde rigueur are hardly surprising; there is not much of a constituency out there for being kind to criminals, especially drug dealers. The very idea that such criminals have rights (lip service to the general notion of the presumption of innocence notwithstanding) is understandably hard to swallow, particularly in the sensational cases which most often reach the consciousness of the general public. Under these circumstances, it would be naive&emdash;or insincere&emdash;at least in the real world, to expect the political branches of government (either those responsible for adopting the criminal laws and procedures, or those empowered to use them to fight the war against drugs) to stay within the limits of constitutional constraints, on their own&emdash;i.e., to police themselves. When, as in the natural course of most human endeavors, the war-like fervor of the crusade is frustrated by the practical difficulties of combating all of the various and interwoven evils of our culture’s drug menace, the tendencies toward excesses, abuses, and oppression become almost unbearable. The atmosphere is rife with the danger that all caution, all restraint, all limits, will be “swept away by society’s obsession with stopping the scourge of illegal drugs.”(103) In his very first dissenting opinion, Justice Oliver Wendell Holmes warned against surrendering hard-won constitutional protections to these tides of public fervor: Great cases, like hard cases, make bad law. For great cases are called great, not by reason of their real importance in shaping the law of the future, but because of some accident of immediate overwhelming interest which appeals to the feelings and distorts the judgment. These immediate interests exercise a kind of hydraulic pressure which makes what previously was clear seem doubtful, and before which even well settled principles of law will bend.(104)

Drug war proponents have often refused to acknowledge that those who see the Bill of Rights as placing limits on the lengths to which government may go in fighting this war are a legitimate part of the adversarial process for determining the meaning and scope of the individual liberties protected by our Constitution. Former President Ronald Reagan, himself, was a prominent and enthusiastic spokesman for the view that the criminal justice process in general, and the lawyers who represent criminal defendants in particular, had meretriciously impeded the cause and joined ranks with the enemy. According to the President, “a bizarre twisting of values had crept into our criminal law. That was the confusion of criminals and victims into an attitude that the law was not a vehicle for uncovering truth and administering justice, but a game in which clever lawyers tried to trip up the police on the rules.”(105) A former Reagan Administration Justice Department official has even gone so far as to place the primary blame for the current drug problem on the activities of the American Civil Liberties Union.(106) Thus, we see that the drug war, inspired by the best of intentions, carries an awful potential to transform itself into a direct and potent attack on the constitution itself.


Because of concern “that a large segment of the public believed the criminal justice system did not work well because of the individual rights secured by the Fourth, Fifth, and Sixth Amendments to the United States Constitution,” the Section of Criminal Justice of the American Bar Association recently commissioned a study, by a task force consisting of prosecutors, judges, academics, police officials, and defense lawyers “to study the impact of constitutional rights on crime and crime control in the United States.”(107)

According to the task force’s report, “Popular notions of the role of the defense lawyer often lead the public to believe that a good defense lawyer will routinely be able to ‘beat the system’ and thereby, frustrate justice.”(108)

The Committee undertook an exhaustive review of available statistics from most of the major criminal justice studies and commissioned a scientific national telephone survey of over 800 defense lawyers, judges, prosecutors and high ranking police administrators designed to identify what the actual participants in the criminal justice system believed to be the problems hampering effective law enforcement.(109)

Its findings debunk the popular complaints blaming the persistence of our crime and drug problems on an extravagant deference to the rights of criminals.

Among the most startling and thought-provoking findings of the Committee is the fact that most crimes simply never enter the criminal justice system at all; more than 90 percent of serious crimes remain unreported or are unsolved by the police. In fact, of some 34 million serious crimes committed against persons or property in the United States during 1986, approximately 31 million remained entirely outside the criminal justice system(110) for reasons having nothing whatsoever to do with the exercise of constitutional rights. “The overwhelming majority of these crimes, which keep Americans in fear, are untouched by the work of the police, prosecutors, judges, and prison officials.”(111) Notwithstanding the fact that only a tiny fraction (around 2 percent) of these crimes result in prison sentences,(112) America’s prisons are already overcrowded, operating at between 6% and 21% above capacity.(113) The nation’s prison population, which stood at 819,395 by the end of 1986, has been rising at an annual rate of approximately ten percent, or about 1,000 new beds each week, ever since.(114) The number of prisoners has doubled since the late 1970s, tripled since the end of the 1960s.(115)

Based on empirical studies and the results of its own scientific survey of criminal justice participants, the Committee concluded, “Constitutional restrictions, such as the exclusionary rule and Miranda, do not significantly handicap police and prosecutors in their efforts to arrest, prosecute, and obtain convictions of criminal defendants for most serious crimes.”(116) The Special Committee’s report also indicates that the exclusionary rule achieves a significant measure of police compliance with Fourth Amendment search and seizure restrictions. Moreover, [the evidence] shows that the exclusionary rule has relatively little adverse impact on the criminal justice system and no discernible effect on the crime rate or law enforcement’s ability to control crime.(117)

In fact, the Committee found that the cumulative loss, adding together data on each stage of the felony process (decisions to terminate prosecutions made by police, prosecutors, and judges), because of the exclusionary rule ranged between only 0.6% and 2.35% of all adult felony arrests.(118) The analogous results for attrition based on search and seizure violations from drug cases alone, taken as a separate category, though markedly higher, were still relatively insignificant, between 2.8% and 7.1% of all arrests.(119) According to the Committee Report, “The most striking feature of the data is the concentration of illegal searches in drug arrests (and possibly weapons possession arrests) and the extremely small effect on the arrests for other offenses, including violent crimes.”(120) These findings are consistent with those reported in several empirical studies showing only marginal effects of the exclusionary rule on federal and state prosecutions.(121)

On the whole, the Committee discovered that prosecutors and police … do not believe that Fourth Amendment rights are a significant impediment to crime control. A number of observers, including police officials, also report that the demands of the exclusionary rule, and the resulting police training on Fourth Amendment requirements, have promoted professionalism in police departments across this country.(122)

On the contrary, “the major problem for the criminal justice system,” the study found, identified by all criminal justice respondents to the Committee, is lack of sufficient resources. The entire system is starved: police, prosecution, criminal defense, courts, and corrections. As currently funded, the criminal justice system cannot provide the quality of justice the public legitimately expects and the people working within the system wish to deliver.(123)

“The entire criminal justice system is starved for resources,” receiving (with the civil justice system, combined) less than 3% of all government spending.(124) It is this factor, not the imagined effects of judges routinely turning criminals loose “because the constable has blundered,” which has the greatest impact on the effectiveness of our criminal justice system.

Yet, the media and public opinion leaders continue to give the impression that it is judicial tampering in law enforcement activities (or unreasonable bail decisions) that “shackles” the police and prosecution, and which results in dangerous criminals remaining at large. Moreover, police, prosecutors, judges, and lawmakers “consistently told the Committee that they are regularly frustrated in their work because of the public’s perception that if they did their jobs competently, they should be able to protect the public from crime completely.”(125) These law enforcement officials, however, know the hard truth: “They reported that even if they were given sufficient resources, they could only effectively prosecute and punish a small percentage of the crime against which the public demands protection.”(126)

One of the Committee’s special areas of inquiry was the capacity of the criminal justice system to “win the war” against drugs. Its findings are sobering, and provide still another answer to those who would turn the drug war into an assault on our constitutional rights. Here is what the Committee found: An equally major problem reported by all criminal justice participants is the inability of the criminal justice system to control the drug problem in the Nation through the enforcement of the criminal law. Police, prosecutors, and judges told the Committee that they have been unsuccessful in making a significant impact on the importation, sale, and use of illegal drugs, despite devoting much of their resources to the arrest, prosecution, and trial of drug offenders.(127)

Indeed, in the nine years from 1980 to 1989, the number of drug cases filed in the federal courts rose by 270 percent. Drug cases now make up 55 percent of all federal appeals.(128) The task force attempted to analyze reports of substantially greater numbers of illegal searches and seizures in connection with drug prosecutions. It concluded that this phenomenon was best explained not as a problem created by the exclusionary rule, but as a symptom of police frustration over their inability, unrelated to constitutional restrictions, to combat the drug problem effectively in the face of public demand for conclusive action. In this atmosphere, some police departments have resorted to demonstrations of visible efforts to clean the streets of drugs, even though this has, in some instances, required them to ignore constitutional restrictions and forego prosecutions.(129)

Ultimately, the Committee had this to say about the role of the criminal justice system in the war on drugs: Despite ever-increasing numbers of arrests, ever-harsher sentences, and ever-more crowded prisons, “The criminal justice system is not controlling the drug problem that plagues this country. There is an immediate need to rethink our strategies for dealing with drugs, and the answers will not be so simple as merely making more arrests and imposing longer prison sentences.”(130)


Dissenting from the decision in Skinner v. Railway Labor Executives’ Association, 109 S.Ct. 1402 (1989), which upheld suspicionless drug testing of railway employees under a novel Fourth Amendment standard, which he characterized as “a formless and unguided ‘reasonableness’ balancing inquiry,”(131) now-retired Justice Thurgood Marshall, joined by former Justice William Brennan, was moved to protest, “There is no drug exception to the Constitution.”(132)Unfortunately, there is growing evidence that such an exception not only is creeping into the Supreme Court’s search and seizure jurisprudence,(133) but that it may have much, much broader application: to the Bill of Rights as a whole.(134) While it is not within the ambit of this article to analyze the merits(135) of each of the many recent Supreme Court decisions cutting back on criminal law protections which had, until lately, been considered firmly established under the first ten Amendments, a brief look at several audacious rulings by the newly-emboldened Rehnquist Court majority may be adequate to enliven the reader’s sense of constitutional foreboding.

A. The Vanishing Fourth Amendment

The Fourth Amendment provides: 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 person or things to be seized.(136)

Nowhere has the drug war taken a greater toll than it has on this Amendment,(137) with its ever-controversial exclusionary rule. As Professor Wayne LaFave has noted, “The nature of the exclusionary rule is such that it makes the cost of honoring the Fourth Amendment apparent. As Professor Kaplan has observed, ‘by definition, it operates only after incriminating evidence has already been obtained’ and thus ‘flaunts before us the costs which we must pay for fourth Amendment guarantees.’”(138) Although it has not yet suggested a willingness to jettison the holding of Mapp v. Ohio,(139) the Supreme Court has not only sharply circumscribed the application of the exclusionary rule itself,(140)but has also repeatedly weakened the scope and limited the sweep of the Amendment’s proscriptions themselves, as for example in United States v. Leon,(141) in which it held that when police act in good faith reliance on a warrant, even one issued on less than the probable cause prescribed by the express terms of the Fourth Amendment, no constitutional violation will be recognized.(142) By emphasizing the personal nature of the right for purposes of limiting standing to object to an unreasonable search,(143) but treating it as less than a personal right for purposes of waiver analysis,(144) the Court has further narrowed the circumstances under which the rule can be invoked.

In 1984, Professor Silas Wasserstrom was moved to write, in an article entitled The Incredible Shrinking Fourth Amendment,(145) about the Burger Court’s various efforts to cut back on the Fourth Amendment constraints which the Warren Court had imposed on law enforcement officials.(146) In 1986, another noted Fourth Amendment scholar warned that the courts were “turning their backs” on the Fourth Amendment “in order to aid the war against illicit drugs.”(147) In 1989, Professor Wasserstrom observed the extension of this trend by virtue of the Rehnquist Court’s movement toward an “ad hoc balancing approach for all fourth amendment intrusions:” During the past five years the Court’s fourth amendment decisions have, for the most part, continued trends set in motion over the previous ten or fifteen years. The Rehnquist Court, like the Burger Court before it, has generally been inhospitable toward both substantive fourth amendment claims and toward the exclusionary rule as a way to enforce those claims.(148)

In 1985, the Court started down the road to this “ad hoc balancing approach” when it held that the “special needs” of public school discipline made the ordinary warrant and probable cause requirements inapplicable to a school principal’s search of a student’s belongings.(149) Two years later, in O’Connor v. Ortega,(150) a majority similarly found the needs of public employers urgent enough to override the traditional warrant and probable cause requirements in that setting. The same reasoning was the basis for excepting probation officers’ searches of probationers’ homes from those standards in Griffin v. Wisconsin.(151) Colorado v. Bertine,(152) expanded the pre-existing inventory search exception to the Fourth Amendment’s textual requirements based on the special administrative needs of the police with respect to impounded property.

Over the last dozen years, the Court has also embraced a host of intrusive weapons which have permitted police to explore at will, with no Fourth Amendment constraints whatsoever, areas which many, if not most, Americans would consider none of their business. Because it considered it “too much to believe that telephone subscribers … harbor any general expectation that the numbers they dial will remain secret,” the Court held in 1979 that the Fourth Amendment placed no limitations on the government’s power to record those numbers through the use of a “pen register” device.(153) In United States v. Place,(154) the Court held that the use of trained police dogs to detect the odor of illegal drugs inside a suitcase or other luggage was not a search, and therefore did not implicate any Fourth Amendment protections. California v. Greenwood(155) announced the rule that, irrespective of the care with which one may wrap his garbage, no expectation of privacy in the contents of one’s trash can is legitimate. Likewise, inUnited States v. Dunn,(156) the Court held, under the “open fields” doctrine,(157) that no search had occurred when officers crossed over half a mile of property, climbed over several barbed wire fences, and shined a flashlight into the owner’s barn. The decision in California v. Ciraolo,(158) similarly placed police surveillance of whatever can be seen from the skies&emdash;even within the curtilage of the home&emdash;beyond any limitations contained in the guarantee against unreasonable searches and seizures.(159) One cannot help but harbor serious doubts that the American people would agree with these sweeping generalizations about the narrow limits of their own (though perhaps not those of “criminals”) “legitimate expectations of privacy.”

If use of an “aid to the senses” of the police, as by either a trained animal or an advanced technological device, permitted the authorities to detect drugs (or anything else the police might seek) inside a house from the curbside (or anywhere “outside the curtilage” for that matter), do these cases suggest that routine house to house sweeps for contraband are in store for our neighborhoods? Under the logic of the cases cited in the text, the advent of such incredibly intrusive (and effective) means for police to detect drugs within the home of anyone they choose to target would not even implicate Fourth Amendment concerns. Whether or not one would want to live in a society characterized by such ruthlessly efficient drug (or other crime) detection practices, does it make any sense to consider the issue without any reference to the constitutional provision which is expressly devoted to the task of placing reasonable limitations on the intrusive powers of the police?(160)

In a 1989 article on the Fourth Amendment,(161) Andrew Gildea and David Weiler attempted to delineate the departures over the last twenty years from what they considered the highwater mark of Fourth Amendment jurisprudence: the decision in Katz v. United States(162) which adopted the general rule that, but for “a few specifically established and well-delineated exceptions,” evidence gathered in the absence of a warrant issued by a neutral and detached magistrate is per seunreasonable.(163) Whether or not one agrees with their normative evaluation of this process, the trend of inroads is nevertheless sobering for those who take seriously the underlying purposes of the Fourth Amendment: In an era when “strict construction” and “judicial restraint” have been conservative touchstones, the Court’s ever-narrowing definition of “unreasonable” searches and seizures has become an exercise in reductio ad absurdum. “The right of the people to be secure in their persons, houses, papers, and effects, from unreasonable searches and seizures, shall not be violated” has become a nullity because the Supreme Court has implied a codicil: the fourth amendment provides protections unless the unreasonable and warrantless search involves a border area, “inevitable” discovery, “good faith,” a brief pat-down of a person’s body without probable cause, a search based on anonymous hearsay and subsequent corroboration, organized road blocks or stops, intimate administrative searches of employees’ bodily parts and functions, inventory searches, searches of regulated industries, searches incident to a valid arrest, “plain view” seizures, the search of a vehicle or mobile home, searches involving unintelligent consent by third parties, “exigent” circumstances, or a lack of an expectation of privacy. Somehow, the Burger and Rehnquist version of the fourth amendment lacks the clarity of the Katz decision’s bright line rule.(164)

In National Treasury Employees’ Union v. Von Raab,(165) decided along with Skinner v. Railway Labor Executives’ Association,(166)the Supreme Court upheld a program of mandatory, suspicionless drug testing, including the monitored collection of urine samples, of agents of the Customs Service applying for certain positions or promotions.(167) Justice Antonin Scalia, rarely accused of harboring liberal beliefs, registered his dissent in Von Raab(168) in these scathing words: What better way to show that the Government is serious about its “war on drugs” than to subject its employees on the front line of that war to this invasion of their privacy and affront to their dignity? To be sure, there is only a slight chance that it will prevent some serious public harm resulting from Service employee drug use, but it will show to the world that the Service is “clean,” and&emdash;most important of all&emdash;will demonstrate the determination of the Government to eliminate this scourge of our society! I think it obvious that this justification is unacceptable; that the impairment of individual liberties cannot be the means of making a point; that symbolism, even symbolism for so worthy a cause as the abolition of unlawful drugs, cannot validate an otherwise unreasonable search.(169)

Justice Marshall’s dissent in Skinner excoriated the majority, which, he complained today takes its longest step yet toward reading the probable-cause requirement out of the Fourth Amendment. For the fourth time in as many years, a majority holds that a “special nee[d], beyond the normal need for law enforcement,” makes the “requirement” of probable cause “impracticable.” … [T]he Court has now permitted “special needs” to displace constitutional text in each of the four categories of searches enumerated in the Fourth Amendment: searches of “persons,” ante, at ____; “houses,” Griffin v. Wisconsin, 483 U.S. 868, 107 S.Ct. 3164, 97 L.Ed.2d 709 (1987); “papers,” O’Connor v. Ortega, 480 U.S. 709, 107 S.Ct. 1492, 94 L.Ed.2d 714 (1987); and “effects,” New Jersey v. T.L.O., 469 U.S. 325, 105 S.Ct. 733, 83 L.Ed.2d 720 (1985). The process by which a constitutional “requirement” can be dispensed with as “impracticable” is an elusive one to me.

In the past two years, the Court has endorsed ever more numerous exceptions to the literal requirements of the Fourth Amendment. In Michigan Department of State Police v. Sitz,(170)citing the special needs of the war against drunk driving, a majority approved the practice of mass sobriety checkpoints on the highways, in which all vehicles are stopped, without any individualized suspicion or justification, in an effort to catch those driving while intoxicated. InMaryland v. Buie,(171) the Court recognized an exception to both the probable cause and warrant requirements for a “protective sweep” of the premises where a lawful arrest is made for other suspects reasonably suspected of being on the scene. The Court stretched the boundaries of the consent exception to the Fourth Amendment in Illinois v. Rodriguez,(172) holding that consent given by a third party with “apparent authority” to enter the premises was sufficient to justify a police search in reliance thereon, even when it turned out that she in fact lacked any right to enter the premises.(173) In Horton v. California,(174) the Court did away with the “inadvertency” requirement for the seizure of evidence “in plain view.”

Just a few months ago, in California v. Acevedo,(175) a majority of the Supreme Court overturned the rule of Arkansas v. Sanders,(176) and held that, pursuant to the “automobile exception” to the Fourth Amendment’s warrant requirement, police may search without a warrant the contents of a closed container located within the trunk of an automobile, provided they have probable cause to believe that the package contains contraband. Justice Stevens protested: “No impartial observer could criticize this Court for hindering the process of the war on drugs. On the contrary, decisions like the one the Court makes today will support the conclusion that this Court has become a loyal foot soldier in the Executive’s fight against crime.”(177) A month later, the Court (this time with Justice Blackmun, who authored the majority opinion in Acevedo, in dissent) upheld the practice of suspicionless drug sweeps on buses, ruling that such practices do not implicate the Fourth Amendment so long as no actual coercion is involved.(178) Justice Marshall, in a ringing dissent, quoted the following passage from the opinion of Judge Sporkin of the District Court for the District of Columbia in a similar case: It seems rather incongruous at this point in the world’s history that we find totalitarian states becoming more like our free society while we in this nation are taking on their former trappings of suppressed liberties and freedoms. * * * The random indiscriminate stopping and questioning of individuals on interstate busses seems to have gone too far…. If passengers on a bus passing through the Capital of this great nation cannot be free from police interference where there is absolutely no basis for the police officers to stop and questionthem, then the police will be free to accost people on our streets without any reason or cause. In this “anything goes” war on drugs, random knocks on the doors of our citizens’ homes seeking “consent” to search for drugs cannot be far away. This is not America.(179)

The Supreme Court’s open hostility to the anti-government bias of the Fourth Amendment continues to grow. Professor Yale Kamisar has recently added his voice to the chorus of concern over the “plausible-sounding government claims” which “are putting enormous pressure” on the Fourth Amendment’s limitations on the government’s power to invade personal liberty and security.(180) The danger today is that judges will be unduly influenced by contemporary tides and currents&emdash;so much so that these forces may engulf the Fourth Amendment itself. We should greet claims of “crisis” or “emergency” or “necessity” with considerable skepticism. For such slogans can be&emdash;and have been&emdash;a free people’s most effective tranquilizers.(181)

To those who would argue that the Court has nothing against the Fourth Amendment, but is merely restricting the reach of the “judge-made” exclusionary rule, which allows the guilty to go free “because the constable has blundered,” it would be well to consider the point, frequently made by the 77-year-old rule’s proponents, that it is the Fourth Amendment itself, not the exclusionary rule, which “handcuffs” the police. In Professor Kamisar’s words: [D]oesn’t the Fourth Amendment itself impede the search for truth? I realize that the Amendment has “both the virtue of brevity and the vice of ambiguity.” But doesn’t it mean something? Is not its very purpose&emdash;and that of the Bill of Rights generally&emdash;”to identify values that may not be sacrificed to expediency”? And to stand in the way when “the task of combatting crime and convicting the guilty … seem of such critical and pressing concern,” as it will in every era, “that we may be lured by the temptation of expediency into forsaking our commitment to protecting individual liberty and privacy”?(182)


Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof….(183)

The war on drugs has played a part in what appears to be a major narrowing of the First Amendment’s religious liberty protections. In a case involving the sacramental use of the drug peyote by two members of a small, but well-established Native American religion, a five-justice majority of the Supreme Court, in an opinion by Justice Scalia, abandoned the long-standing balancing test for weighing claims of religious liberty under the First Amendment’s Free Exercise Clause.(184) Without expressly relying on the perceived imperatives of the drug war, the majority nevertheless used Oregon’s criminal proscription of the use of this obscure hallucinogenic drug to announce a new rule that “if prohibiting the exercise of religion … is … merely the incidental effect of a generally applicable and otherwise valid provision, the First Amendment has not been offended.” Prior to the decision in Smith, the prevailing standard, employed in a long line of cases growing out of the decision in Sherbert v. Verner,(185) required that laws which substantially burden a bona fide religious practice must be justified by a compelling governmental interest, which cannot be served by less restrictive means.

Two counselors in a youth program were fired from their jobs because they freely admitted having ingested peyote at a religious ceremony of the Native American Church. Their applications for state unemployment benefits were denied because the state agency determined that they had lost their employment as a consequence of “employment-related” misconduct. Peyote is a controlled substance under Oregon law, and the State Supreme Court had interpreted the statute as allowing no exemption for religious use. It further held, however, that the State’s failure to provide such an exemption to the employees violated their guarantee to the free exercise of religion under the First Amendment.

The Supreme Court reversed. “The government’s ability to enforce generally applicable prohibitions of socially harmful conduct, like its ability to carry out other aspects of public policy,” the majority declared, “cannot depend on measuring the effects of a governmental action on a religious objector’s spiritual development.”(186) The majority held, “[T]he right of free exercise does not relieve an individual of the obligation to comply with a valid and neutral law of general applicability on the ground that the law proscribes (or prescribes) conduct that his religion prescribes (or proscribes).”(187) For government to be required to justify every unintended burden which religion-neutral laws might have on an individual’s religious freedom, the Court declared, “would be courting anarchy,”(188) and “would open the prospect of constitutionally required religious exemptions from civic obligations of almost every conceivable kind….”(189)

In a rather perfunctory obeisance to the First Amendment’s mantle of protection for religious minorities, the Court acknowledged the likelihood that its abandonment of the Sherbert standard would leave unconventional religious groups at the mercy of the majority: It may fairly be said that leaving accommodation to the political process will place at a relative disadvantage those religious practices that are not widely engaged in; but that unavoidable consequence of democratic government must be preferred to a system in which each conscience is a law unto itself or in which judges weigh the social importance of all laws against the centrality of all religious beliefs.(190)

In the Court’s view, judicial scrutiny of the government’s justification for abridging the rights of such minorities to exercise their religion is simply “a luxury we cannot afford.”(191)

Justice O’Connor (not generally considered an ardent exponent for individual rights) roundly condemned the majority for its departure from established precedent and its insensitivity to First Amendment values. “In my view,” she protested, “today’s holding dramatically departs from well-settled First Amendment jurisprudence, appears unnecessary to resolve the question presented, and is incompatible with our Nation’s fundamental commitment to individual religious liberty.”(192) The majority, according to Justice O’Connor, “gives no convincing reason to depart from settled First Amendment jurisprudence. There is nothing talismanic about neutral laws of general applicability or general criminal prohibitions, for laws neutral toward religion can coerce a person to violate his religious conscience or intrude upon his religious duties just as effectively as laws aimed at religion. Although the Court suggests that the compelling interest test, as applied to generally applicable laws, would result in a ‘constitutional anomaly,’ ante, at 1604, the First Amendment unequivocally makes freedom of religion, like freedom from race discrimination and freedom of speech, a ‘constitutional nor[m],’ not an ‘anomaly.’ Ibid.”(193)

Justice Blackmun, joined by Justices Brennan and Marshall, dissented. Finding from the undisputed evidence in the record that the respondents’ sacramental use of peyote was “inseparable from and a part of the basic tenets of their religion … [just as] baptism, the confessional, or a sabbath may be for others,”(194) the dissenters contended that the State’s countervailing interest in “unbending application of [the] criminal prohibition,” which hadneverbeen enforced against members of respondents’ religion, was “mere symbolism [which] cannot suffice to abrogate the constitutional rights of individuals.”(195) Justice Blackmun concluded: I do not believe the Founders thought their dearly bought freedom from religious persecution a “luxury,” but an essential element of liberty&emdash;and they could not have thought religious intolerance “unavoidable” for they drafted the Religion Clause precisely in order to avoid that intolerance.(196)

The Smith decision has elicited protests of anger and concern from many quarters: This revisionist interpretation of Sherbert dismantles decades of free exercise jurisprudence without acknowledging that it even tinkers with it and transforms a once “fundamental” liberty into a mere pro forma requirement that a state pass a generally applicable criminal law before it demands the violation of religious conscience. Smith ignores precedent, contradicts an explicit finding of the federal government, destroys an entire religious faith without any corresponding benefit, and achieves a result contrary to the intent of the framers of the first amendment.(197)

Another observer has remarked that the majority has ignored the fact that all prior religious exercise cases also involved criminal sanctions… . To circumvent the balancing process is to overturn the most important concept of the Supreme Court as the last bastion of religious protection… . [T]he majority may have been influenced by an undercurrent of desperation concerning the plague of drugs in the nation and felt obligated to defer to a statute prohibiting use of a controlled substance, even in a closely controlled religious ceremony.(198)

For those who doubt that the majority’s decision was influenced, even if subconsciously, by the perceived imperatives of the war against drugs, simply consider for a moment how the Court would respond to a general criminal law of neutral application which, for example, was enforced to prohibit the sacrament of the Eucharist by Catholics as contributing to the delinquency of a minor, or the practice of ritual circumcision by Jews as practicing medicine without a license.(199)


In all criminal prosecutions, the accused shall enjoy the right … to have the assistance of counsel for his defense.(200)

In Caplin & Drysdale Chartered v. United States,(201) a 5-4 majority of the Supreme Court upheld the post-conviction forfeiture of a drug defendant’s assets which had been used to pay his attorneys in the underlying criminal prosecution to the government. In United States v. Monsanto,(202) a companion case, the same majority approved a pretrial order freezing the assets of another drug defendant, and thus making them unavailable to the presumably innocent defendant for the purpose of retaining counsel to defend him against the very charges upon which the freeze order was based.(203) In both cases, the Court refused to recognize any exemption from the provisions of the Comprehensive Forfeiture Act of 1984 (CFA) for the payment of bona fideattorneys fees, which a number of lower courts had acknowledged either as a matter of statutory construction, or by virtue of the defendant’s Sixth Amendment right to the effective assistance of counsel. In the absence of any specific language in the statute itself, or in the legislative history,(204) revealing Congress’ intent that the broadly stated forfeiture remedies should or should not apply to assets used to employ defense counsel, the decision ultimately hinged on the predisposition of each justice toward the underlying importance of the role of private defense attorneys in advancing the purposes of the criminal justice system. Ultimately, five justices concluded that “the government has a legitimate interest in depriving criminals of economic power, even in so far as that power is used to retain counsel of choice.”(205) These five justices did acknowledge that the idea of placing the power to enforce that deprivation against its adversary in the hands of one of two opposing parties “may be somewhat unsettling.”(206)

Nevertheless, because they started out with an obvious and explicit hostility to the “ability to retain the best counsel money can buy,” as a purely personal interest of “criminals such as [the defendant]” to exercise their “undeserved power … to command high-priced legal talent,”(207) the majority had little difficulty in rejecting all claims that any legitimate Sixth Amendment interests were burdened by this result. In other words, if one views, as does the majority, the Sixth Amendment’s guarantee of the assistance of counsel as nothing more than the personal right invoked by a “drug merchant … to use the proceeds of crime to finance an expensive defense,”(208) the result is surely foreordained.(209)

If, on the other hand, one believes, along with the dissenters, in the “function of the independent lawyer as a guardian of our freedom,”(210) with a “distinct role” as the systemic constitutional basis for “protecting the integrity of the judicial process, a role that makes ‘the right to be represented by privately retained counsel … the primary, preferred component of the basic right’ protected by the Sixth Amendment,”(211) the conclusion “that it is unseemly and unjust for the Government to beggar those it prosecutes in order to disable their defense at trial”(212) is similarly ineluctable. Alan Silber, an active criminal defense lawyer himself, has eloquently expressed the nature and purpose of the “distinct role” of the accused’s advocate: Unlike prosecutors, the criminal defense lawyer is a constitutionally necessary component of the criminal justice system. The framers understood the need for the advocate in order to realize the Constitution’s other great rights which limit government and protect the citizen. The rights to effective assistance of counsel and to counsel of choice were meant to give teeth to the governmental limitations and individual zones of autonomy that spell liberty. * * * The criminal defense lawyer is a nongovernmental constitutional institution, an institutional watchdog attacking and warning of governmental overreaching, dishonesty, and failure of integrity. The criminal defense lawyer is analogous to the free press. A free, independent, and aggressive press is a constitutional component designed to sound the alarm when the government overreaches, is dishonest or lacks integrity. Within the criminal justice system, the constitutional design mandates that the criminal defense lawyer perform the same functions.(213)

It is clear that the dissenters in the fee forfeiture cases, unlike the majority, recognize such a vital institutional role, of priceless value to the system itself (and not just to the individual defendant), in the Sixth Amendment right to counsel. In sum, our chosen system of criminal justice is built upon a truly equal and adversarial presentation of the case, and upon the trust that can exist only when counsel is independent of the Government. Without the right, reasonably exercised, to counsel of choice, the effectiveness of that system is imperilled.(214) * * * [A]ttorney’s-fee forfeiture substantially undermines every interest served by the Sixth Amendment right to chosen counsel, on the individual and institutional levels, over the short term and the long haul.(215)

Regardless of the correctness of the rulings in these two cases, the Caplin & Drysdale andMonsanto majority’s expressed antipathy for the personal rights of “drug merchants,” and its failure to acknowledge the independent institutional purposes served by the Sixth Amendment right to counsel, are further evidence(216) of the toll which the war on drugs is taking on the “great rights of mankind” embodied in our Bill of Rights.


The Eighth Amendment contains the guarantee that “cruel and unusual punishments [shall not be] inflicted.”(217) At the end of its 1990-1991 Term, a closely divided Supreme Court decidedHarmelin v. Michigan,(218) a drug case involving a difficult question under the Eighth Amendment’s Cruel and Unusual Punishment Clause. The very different approaches toward this ancient right, represented by the three major opinions in the case, afford some edifying insights into the pressures which the ongoing drug war is placing on our traditional liberties.

Ronald Allen Harmelin, a first-time offender, had been convicted by a Michigan court of possession of 672 grams (about a pound and a half) of a mixture containing cocaine.(219) Under Michigan’s unusually tough drug laws,(220) the penalty for simple possession of 650 grams or more of cocaine was a mandatory sentence of life in prison, without possibility of parole, and Harmelin was sentenced accordingly. At issue was whether or not a mandatory sentence of life imprisonment without parole for a first offender convicted ofsimple possession of 672 grams of cocaine (i.e.without proof of any intent to distribute) was so disproportionate to the offense as to constitute cruel and unusual punishment. By a vote of 5-4, a splintered majority upheld the sentence.

Justice Scalia, joined by the Chief Justice, conceded that other states “treat simple possession of 672 grams of cocaine as a relatively minor offense,”(221) but posited that such a comparison “has no conceivable relevance to the Eighth Amendment.”(222)

Based upon a lengthy review of the historical underpinnings of the Amendment going back to the English Bill of Rights of 1689,(223)Justice Scalia argued that the Eighth Amendment can never support such a proportionality claim outside the sui generis capital punishment context.(224) He contended that prior interpretations of the Amendment supporting such a principle of proportionality in sentencing going back at least as far as the 1910 decision in Weems v. United States, should be rejected or construed to have relied on other constitutional bases.(225) The express teachings of several more recent cases which had applied, but ultimately rejected, such claims, he maintained, should be treated as mere obiter dictum.(226) Finally, he urged that Solem v. Helm,(227) which had expressly held to the contrary, should be overruled as “simply wrong.”(228) Consequently, Justice Scalia never reached the question of whether or not Harmelin’s mandatory life sentence without parole was in fact “disproportionate” to his offense.

A total of seven members of the Court rejected Justice Scalia’s audacious invitation to rewrite the history of the Eighth Amendment and a line of reasonably consistent interpretation of its meaning over the span of nearly a century.(229) Justice White’s opinion responded to each of Justice Scalia’s historical arguments, and found them unconvincing. In addition, the dissent plainly demonstrated that only through a wholesale rejection of the Court’s twentieth century Eighth Amendment jurisprudence, a course prohibited by principles of stare decisis, could the result advanced by Justice Scalia be attained: Not only is it undeniable that our cases have construed the Eighth Amendment to embody a proportionality component, but it is also evident that none of the Court’s cases suggest that such a construction is impermissible…. If Justice SCALIA really menas what he says&emdash;”the Eighth Amendment contains no proportionality guarantee,” ante, at 2686, it is difficult to see how any of the above holdings and declarations about the proportionality requirement of the Amendment could survive.(230)

This is no quarrel about the application of a single constitutional precept to the facts of a particular case. This example of the willingness of Justice Scalia and the Chief Justice to so suddenly jettison such a well-established tenet of the Court’s Eighth Amendment jurisprudence, while it failed to attract the votes of a majority of the Court in this drug case, nevertheless constitutes a serious, wholesale challenge to the viability of this and other basic constitutional interpretations(231) which have been largely taken for granted in recent years. Adherence to the self-restraint imposed upon judges by stare decisis is a decidedly conservative impulse. If the new “conservative” justices on the High Court themselves continue to eschew the constraints of this discipline in favor of an aggressive attack on long-accepted rulings which they disfavor,(232) it will be extremely difficult to discern any principled difference between their own brand of judicial activism and that which they so frequently criticize the “liberal” Warren Court for engaging in. If this in fact occurs, and it becomes apparent that the Court’s interpretations of the Constitution represent only what five justices are willing to vote for at any given moment,(233) then it will be, above all, the institution of the Court, and of the Constitution itself as our supreme law, which will suffer.

The concurring opinion written by Justice Anthony Kennedy, with whom Justices O’Connor and Souter concurred, illustrates a different, but just as worrisome, element of the drug war’s impact on the Court. The concurring Justices declined Justice Scalia’s invitation to read an excessive punishment doctrine out of the Eighth Amendment, recognizing instead a “narrow proportionality principle,”(234) applicable only in “extreme cases,”(235) but concluding that the crime involved was “momentous enough to warrant the deterrence and retribution of a life sentence without parole.”(236)

Justice Kennedy specifically rejected as “false to the point of absurdity,”(237) the point made in Justice White’s dissent that Harmelin’s own personal culpability in the simple possession, without intent to distribute, of 672 grams of cocaine involved neither violence to, nor victimization of, any other person.(238)

Because of the “pernicious effects of the drug epidemic in this country,” which Justice Kennedy supported with statistical references, he felt justified in concluding that “a rational basis exists for Michigan to conclude that petitioner’s crime is as serious and violent as the crime of felony murder without specific intent to kill, a crime for which,” he noted, quoting from the opinion inSolem, “‘no sentence of imprisonment would be disproportionate.’”(239) Here, most suggestively, Justice Kennedy cited a passage from Justice Lewis Powell’s dissent in Rummel v. Estelle,(240) to support the Michigan’s justification in imposing such a severe punishment on Harmelin: “‘A professional seller of addictive drugs may inflict greater bodily harm upon members of society than the person who commits a single assault.’”(241)

But, critically, as emphasized in Justice White’s dissent,(242) the State of Michigan had expressly refrained from even trying to prove that Harmelin, was, or had ever been such “a professional seller of addictive drugs.”(243) Michigan, which had no death penalty, had reserved its harshest punishment for only three crimes, first-degree murder; manufacture, distribution or possession with intent to manufacture or distribute 650 grams or more of narcotics; and simple possession of 650 grams or more of narcotics.(244)

Justice Kennedy’s attempt to justify the severity of the penalty for simple possession of cocaine by reference to the horrors of drug trafficking(245) would appear to share one of the chief vices of the statutory scheme itself; its equating of simple possession of a substantial, but hardly overwhelming, amount of cocaine with the far more serious crime of drug manufacturing or distribution. As Justice White observed: The State thus aimed to avoid having to establish Harmelin’s intent to distribute by prosecuting him instead under the possession statute.  Because the statutory punishment for the two crimes is the same, the State succeeded in punishing Harmelin as if he had been convicted of the more serious crime without being put to the test of proving his guilt on those charges.(246)

Once again, we see that perceptions of the overall importance of the war on drugs&emdash;even on the part of members of the Supreme Court&emdash;can easily be translated into questionable logic and potentially unjust results. The admonition of Justice Hugo Black, quoted by Justice White inHarmelin: “Unfortunately, grave evils such as the narcotics traffic can too easily cause threats to our basic liberties by making attractive the adoption of constitutionally forbidden shortcuts that might suppress and blot out more quickly the unpopular and dangerous conduct.”(247)


You have 20 minutes to catch your bus to work. You walk the two blocks to the bus stop. On the way, you run into a friend walking his dog, talk for a moment, and give him one of your cigarettes and a matchbook, which he puts in his pocket. Arriving at the bus stop, you realize you don’t have the exact change which the bus service requires. You see a neighbor, and after shaking hands, he gives you change for a $5 bill. You pocket the change and exchange a few pleasantries with another acquaintance, to whom you give your business card. Reaching the bus stop, you accept a fact sheet from a local activist on behalf of a civic group complaining about plans to build a new office building nearby. As your bus pulls up, you quickly jot down your new home number with a pencil he hands you, and you suggest that you ought to have lunch together soon. It all sounds pretty routine, doesn’t it?

Not according to the zealous drug warriors charged with making the laws for the City of Alexandria, Virginia. Beset by the scourge of open air drug markets, Alexandria officials responded in 1990 by enacting an ordinance prohibiting “loitering” for the purpose of drug trafficking.(248) Alexandria Ordinance No. 3471 called for the arrest and conviction, for “loitering … for the purpose of engaging in” an illegal drug transaction, of any person who “manifest[s] such purpose” by engaging in several specified behaviors.(249) Any person having two or more brief “contacts” in a public place with two or more other persons, occurring close in time and space to each other, and including “actions or movements consistent With”(250) an exchange of money or small objects and an effort to conceal the “apparent exchange,”(251) was, according to the enactment, deemed to be “manifesting such [drug trafficking] purpose.”(252)

The City, of course, grounded its justification for the loitering law on the imperatives of the war on drugs. The Ordinance was adopted “in response to the severe drug problems facing the city,” only after “continued requests of the residents of various neighborhoods that the city do all it could to eliminate the illegal drugs and street level drug dealers they felt were destroying their communities.”(253)According to the City and its supporters, proof of the “seven behaviors or circumstances,” plainly and unambiguously bespeaks nothing short of illicit trafficking in narcotics.(254) Thus, innocent citizens had nothing to fear from enforcement of the Ordinance.(255)

A number of local citizens, several civil rights organizations, and ultimately a federal judge, disagreed, concluding that the City’s new battle plan for fighting the drug war was unconstitutionally overbroad, threatening to catch within its net not only those bent on criminal activities, but citizens exercising their rights of assembly and association protected by the First Amendment as well.(256) “By equating unlawful purpose with seven innocent activities that may be accomplished by persons lacking unlawful intent,” Judge Claude Hilton ruled, “the Alexandria ordinance criminalizes a substantial amount of constitutionally protected activities.”(257)

The vice of the law, the court observed, was that in its zeal to aid in the apprehension and punishment of drug offenders, the City was arming itself with the power to interfere with, and stifle, legitimate, innocent, and in some cases constitutionally protected, activities not at all dissimilar to those comprising the nightmarish hypothetical described above: A person may be prosecuted under the ordinance for engaging in such innocuous activity as speaking in a public place for 15 minutes, shaking hands, and exchanging small objects such as business cards or phone numbers on small pieces of paper. Enforcement of the ordinance may result in the conviction of individuals for distributing campaign literature, approaching persons to sign petitions, collecting organizational dues, soliciting community support, and directing voters to the polls. The inherent danger of the enactment is that protected expression may be thwarted as individuals such as the plaintiffs abstain from socializing, counselling, organizing community events, or registering to vote out of fear of prosecutions under the facially overbroad ordinance.(258)

Alexandria’s drug loitering law was clearly intended to provide a shortcut method of arrest and prosecution of suspected drug dealers.(259) Its only discernable raison d’être was to allow police officers to arrest, and the courts to convict, suspected drug traffickers on proof of something less than actual possession or distribution of controlled substances.(260) There is not a shred of evidence that Alexandria police lacked sufficient legal tools to make arrests and obtain convictions under Virginia’s statewide laws against drug possession and distribution. Given the Supreme Court’s recent evisceration of prior Fourth Amendment protections,(261) it is hard to understand any rational need for expanding police powers further at the expense of the freedom of action of Alexandria’s ordinary citizens. Since the overwhelming mass of crime is simply opaque to the criminal justice system, the inherent intractability of the drug plague itself is not an argument for shedding the protections which apply to those few cases which actually do reach that system. Yet, we see that rational, earnest and well-intentioned local citizens, politicians, and lawyers conceived, adopted and attempted to sustain a drug ordinance granting police broad, arbitrary powers with obvious potential for discriminatory application and chilling effects on the ordinary, legitimate activities of Alexandria’s people. One can only surmise that this legislation was merely another example of what Justice Scalia, dissenting in Von Raab, called “a kind of immolation of privacy and human dignity in symbolic opposition to drug use.”(262) This, not the far more recognizable tyranny of some malevolent despot, is the primary peril against which the Bill of Rights was intended to protect us. In the words of Justice Louis Brandeis’ famous dissent inOlmstead v United States, 277 U.S. 438, 479 (1928): “[I]t is … immaterial that the intrusion was in aid of law enforcement. Experience should teach us to be most on our guard to protect liberty when the Government’s purposes are beneficent. Men born to freedom are naturally alert to repel invasion of their liberty by evil-minded rulers. The greatest dangers to liberty lurk in insidious encroachment by men of zeal, well-meaning but without understanding.

Alexandria’s ill-fated anti-drug loitering ordinance, enacted and defended by well-meaning people seeking in good faith to do their part to win the war against drugs, stands as an object lesson for those who fail to understand why the Framers fashioned a Bill of Rights to protect us from overreaching by the government in its prosecutive function. Those in the legislative or executive branches who feel it their duty to wage the war against crime, even those without any hint of hypocrisy, corruption or malice, simply cannot be trusted to narrowly circumscribe the perceived targets of their mission, and to avoid harm to the innocent bystanders, who, without the energetic protection by the courts which the adversarial criminal process engenders, will inevitably be drawn into the crossfire.


Adherence to a meaningful Bill of Rights, as the Founders understood, cannot be without its price. A government which tolerates political division and dissent, which takes upon itself an elaborate system of internal checks and balances, which circumscribes its own powers and prerogatives, as does ours, will always be less tidy, less single-minded, less brutally efficient, especially in war, than will despotism. The 462 words of the Bill of Rights comprise legal privileges and immunities which, for the most part, are invoked, and were intended to be invoked, not by the upright and innocent, but rather by the accused authors of despicable crimes. The point which many simply fail to understand is that the broad liberties enshrined in our celebrated Bill of Rights themselves place sometimes costly limits on the weapons and tactics which government may bring to bear against those it would protect us from. When a court enforces those limits against the prosecution, as for example by refusing to receive evidence obtained by virtue of a violation of a fundamental right, it is not a technicality, but a constitution, which has been vindicated.(263) The blow is not against law and order, it is for the highest law and pursuant to the most fundamental order which the long march of civilization has yet produced. While the costs of upholding our constitutional law and order are sometimes dear, and frequently painfully visible, those who cannot find solace and satisfaction each time one of our basic guarantees is given effect, even if at a significant cost, have missed&emdash;or perhaps forgotten&emdash;something wonderfully inspiring in the enduring principles of liberty which are nowhere better expressed than in our Bill of Rights, “a sublime oration on the dignity of man, a bold commitment by a people to the ideal of libertarian dignity protected through law.”(264)

The criminal justice system cannot solve the problem of drugs on its own; indeed, we will never eradicate the scourge of drugs from our country until our people lose their appetite for the quick and easy pleasures, the escape from reality, which narcotics seem to offer. In the popular enthusiasm and political posturing that accompany this drug war, there is a considerable danger that we will lose sight of the invaluable, but abstract, benefits of limited government, including restrictions on the power of the government to prosecute crime. Freedom, Heywood Broun once wrote, “is about as good a cause as the world has ever known. But, like the poor, it is always with us and gets shoved aside in favor of things which seem at some given moment more vital.”(265) In our zeal to marshal and utilize all of the weapons of the state against a hated enemy, in concentrating only on the imperatives of winning the current war, if we allow our people to view with hostility the fundamental values which are served by those hard-won limitations on the reach of government, we risk making our Bill of Rights, “fetters against evil which no honest government should decline,”(266) an unintended casualty of the current hostilities.

In Chief Justice John Marshall’s immortal words, “We must never forget that it is a constitution we are expounding … intended to endure for ages to come, and consequently to be adapted to the various crises of human affairs.”(267) As we observe the heavy toll which the war on drugs exacts upon our legal system, it is well for all of us&emdash;defense counsel, police, prosecutors, legislators, academicians, and judges(268)&emdash;also to keep in mind, that, as Judge Learned Hand cautioned us, “The spirit of liberty is the spirit which is not too sure that it is right….”(269) It is the responsibility of legal academicians, jurists, and practicing lawyers alike, not only to win cases, or to expound our own theories of interpretation of that Constitution, but to do all in our power to enhance its understanding, appreciation, and respect by our people. No evanescent political or ideological advantage is worth the loss which we all sustain when our citizens no longer realize or cherish “that delicate balance” between collective welfare and individual freedom which the Framers sought to preserve in the frame of government they invented in the years from 1776 to 1791. For “the Constitution,” as John Marshall counselled us long ago, “is meant to be understood by the public.”(270)


This article first appeared in the Civil Rights Law Journal, a publication of George Mason University Law School, in 1992, and is reprinted here with the permission of the author.

1. (Emphasis added.) The author extends his apologies to Professor Yale Kamisar, who recently included these same eloquent observations in an excellent article discussing the dangers which the drug war mentality poses for our rights under the Fourth Amendment. The Fourth Amendment and its Exclusionary Rule, in THE CHAMPION at 20 (September/October 1991). 

2. Twelve amendments were passed by the first Congress in 1789. The first two, dealing with Congressional compensation and apportionment, were never approved by the states, but the remainder became part of the United States Constitution on December 15, 1791, when Virginia became the eleventh state to ratify them. R. Rutland, The Birth of the Bill of Rights, 1776-1791, at 199, 216-217 (1955) (hereafter, Rutland I). 

3. “Every provision of the Bill of Rights is based directly upon Madison’s original draft. Where changes were made during the congressional debate, they related to form rather than substance.” B. Schwartz, THE GREAT RIGHTS OF MANKIND 169 (1977) (hereafter GREAT RIGHTS). It was Madison who on June 8, 1789, introduced the measure which became, with a few modest changes, the Bill of Rights. “[T]he Bill of Rights remains [Madison’s] noblest heritage to the nation.” R. Morris, Witness at the Creation 256-57 (1985). “The Madison amendments cover every one of the articles that eventually became the Federal Bill of Rights,” GREAT RIGHTS, at 169, “most of them in the language finally adopted.” Id. at 165. 

4. In introducing his resolution to amend the Constitution on the floor of the House of Representatives on June 8, 1789, James Madison referred to the powerful public outcry for a specific, written charter of fundamental liberties which had attended the debate in the several states on ratification of the 1787 Constitution. Now was the time, he urged, to “expressly declarethe great rights of mankind.” Quoted in GREAT RIGHTS, supra n. 3, at vii (emphasis in original). 

5. The dramatic triumphs of principles of democracy and limited self-government which have taken place in eastern Europe since 1989, and especially this year in the republics of “the former” Soviet Union, hardly need to be chronicled here. In 1982, Canada, our own neighbor to the north, adopted a constitutional Charter of Rights and Freedoms containing most of the guarantees, including those limiting the powers of criminal prosecution, contained in our Bill of Rights. This Charter replaced a 1960 parliamentary Act for the Recognition and Protection of Human Rights and Fundamental Freedoms, which, like any other statute, had been subject to repeal or alteration by ordinary legislation. An unusual feature of the present Charter, spurred by Canada’s own issues of federalism, is that the national and provincial parliaments are expressly authorized to override its limitations, provided that the act in question contain an explicit clause specifying that it is to be given effect “notwithstanding” the provisions of the federal Charter. Just this year, the city-state of Hong Kong, due to be re-absorbed as a Special Administrative Region of the People’s Republic of China in 1997, became the most recent polity to adopt an “American-style … ‘Bill of Rights.’” F. Shapiro, Letter from Hong Kong, in The New Yorker 79, 85 (Sept. 9, 1991). 

6. Ex Parte Milligan, 4 Wall. 2, 18 L.Ed. 281 (1866). 

7. The Supreme Court has spoken of drug trafficking by “sophisticated criminal syndicates,”United States v. Mendenhall, 446 U.S. 544, 561-562 (1980) (Powell, J., concurring), with “seemingly inexhaustible repertoire of deceptive practices and elaborate schemes for the importing of narcotics,” National Treasury Employees Union v. Von Raab, 109 S.Ct. 1384, 1392 (1989), who “do not hesitate to use violence to protect their lucrative trade and avoid apprehension.” Id.

8. The President’s Commission on Organized Crime reported that sales of marijuana, cocaine and other dangerous drugs were by far the largest sources of income to organized crime, resulting in profits of over one hundred billion dollars. America’s Habit: Drug Abuse, Drug Trafficking, and Organized Crime 71 n.1 (1986). 

9. Some 23 million Americans, about ten percent of our population, continue to use illicit drugs regularly (at least once each month). J. Eisenbach, 29 American Criminal Law Review 1683 (Spring 1989) (Panel discussion, Second Annual Lawyers Convention of the Federalist Society: The Constitution and Federal Criminal Law). By the beginning of the last decade, according to the National Institute on Drug Abuse, approximately half of our young people (ages 18 to 25) were using some illicit drug at least monthly; that many of them continued such use even as they grew older; and drug abuse was increasingly widespread among high school, and even junior high school, students. J. Miller, National Survey on Drug Abuse: Main Findings 1982 22-24 (1983). 

10. The complex relationship between drug abuse and crime is not easy to quantify, yet there is a growing consensus, with some data to support it, that the two are indeed strongly linked. See generally, Goldstein, Drugs and Violent Crime, in Pathways to Criminal Violence 16, 24-36 (1989); Bureau of Justice Statistics, U.S. Dept of Justice, BJS Data Report, 1987 (hereafter, BJS Data Report), at 20 (1988). A 1988 Justice Department study found that “between 53 and 79 percent of the men arrested for serious offenses in 12 major cities tested positive for illicit drugs….” U.S. Dept of Justice, News Release, DOJ 88-010 (Jan. 21, 1988). A similar nationwide study conducted in 1989 found that 57% of male homicide suspects tested positive for illegal drugs. National Institute of Justice, 1989 Drug Use Forecasting Annual Report 9 (June 1990). For the crimes of robbery, assault and weapon offenses, the comparable figures were 73%, 55%, and 63%, respectively. Id. An estimated 60 percent of the homicides which took place in Detroit during 1990 were found to have been related to drugs, for the most part, cocaine. U.S. Department of Health and Human Services, Epidemiologic Trends in Drug Abuse 107 (Dec. 1990). From a statistical sampling of individuals arrested in Detroit during 1988, 81% of female arrestees and 68% of the males had drugs (again, mostly cocaine) in their blood system. National Institute of Justice, 1988 Drug Use Forecasting Annual Report 4, 10 (March 1990). 

11. In 1986, at the request of the Section of Criminal Justice, the Special Committee on Criminal Justice in a Free Society (“the Special Committee”), comprising police and court administrators, prosecutors, legal scholars, judges and defense lawyers, was created by the American Bar Association to study the impact of constitutional rights on crime and crime control in the United States. During its two years of operation, the Special Committee canvassed most of the existing major criminal justice studies, commissioned a scientific national telephone survey of over 800 defense lawyers, judges, prosecutors, and police administrators, and held extended hearings in three representative urban centers. Its final report was published in late 1988. CRIMINAL JUSTICE IN CRISIS: A REPORT TO THE AMERICAN PEOPLE AND THE AMERICAN BAR ON CRIMINAL JUSTICE IN THE UNITED STATES: SOME MYTHS, SOME REALITIES, AND SOME QUESTIONS FOR THE FUTURE (Nov. 1988) (hereafter, CRIMINAL JUSTICE IN CRISIS). 

12. “In the cities the Committee visited, drug cases have overwhelmed the courts…. In many jurisdictions police departments are bringing thousands of drug cases into the system, and the numbers are increasing as public indignation accelerates over ‘blatant drug dealing in the streets.’” CRIMINAL JUSTICE IN CRISIS, supra n.11, at 46. 

13. The number of drug prosecutions filed in the federal courts rose 270 percent in the nine years from 1980 to 1989. Nor has the impact of this torrent of cases been limited to the trial courts: Drug cases now make up 55 percent of federal appeals. Proceedings of the 51st Judicial Conference of the District of Columbia Circuit (May 21, 1990) (hereafter Judicial Conference), 134 R.F.D. 321, 346 (remarks of Prof. Yale Kamisar). The trend shows no sign whatsoever of abating: in the District of Columbia during 1989, there was “an unprecedented 22 percent rise in criminal appeals&emdash;virtually all involving drugs.” Id. at 324-325 (opening remarks of Chief Judge Patricia M. Wald). One judge told the ABA’s Special Committee that drug cases have maintained a steady 60% share of his district’s docket for several years. CRIMINAL JUSTICE IN CRISIS,supra n.11, at 69 n.95. 

14. Between 1980 and 1986, the number of defendants convicted of drug law violations in the federal courts increased by 134%. The corresponding increase in non-drug cases was only 27% for the same period. Bureau of Justice Statistics Special Report, Drug Law Violators, 1980-86, p. 1 (June 1988). 

15. CRIMINAL JUSTICE IN CRISIS, supra n.11, at 44-47. 

16. Less than 3% of government spending in the United States went to support all criminal, and civil, justice activities in fiscal 1985. CRIMINAL JUSTICE IN CRISIS, supra n.11, at 5. See also, D. Evans, “How Many Liberties Are We Losing,” in 17 Human Rights14, 16 (ABA Section on Individual Rights & Responsibilities, Summer 1990, no. 2). Moreover, the nation allocated less than 1% of all government spending to operation of the correctional system (including jails, prisons, probation, and parole). BJS Data Report, 1987, at 29. These paltry shares hardly compare with that portion of our resources which we commit for other purposes: 20.8% for social insurance payment; 18.3% for national defense and foreign relations; and 10.9% for interest on government debt. Id.

17. The number of Americans behind bars is rapidly approaching one million. CRIMINAL JUSTICE IN CRISIS, supra n.11, at 4 & n.8. As of 1986, our prisons, many of them under court supervision due to unconstitutional conditions (usually relating to overcrowding) were operating at between 6% and 21% over capacity. Id.

18. CRIMINAL JUSTICE IN CRISIS, supra n.11, at 6. 

19. It has been estimated that, as a nation, we are now spending over ten billion dollars annually on drug law enforcement alone, over $2.5 billion at the federal level for interdiction and enforcement. Office of Management and Budget, Federal Drug Enforcement Cross Cutting(March 29, 1988). 

20. In 1987 alone, U.S. Customs agents intercepted and seized drugs with an estimated “street value” of approximately 9 billion dollars. See Customs USA, Fiscal Year 1987, p. 40. Nevertheless, “[T]hrough the adroit selection of source locations, smuggling routes, and increasingly elaborate methods of concealment, drug traffickers have managed to bring into this country increasingly large quantities of illegal drugs.” National Treasury Employees Union v. Von Raab, 109 S.Ct. 1384, 1392 (1989). The ABA’s Special Committee, which was not in a position to make detailed findings nor to offer any specific solutions to our national drug problem, nevertheless was able to report, “Our hearings … do confirm the growing belief that the drug problem in this country is severe, growing worse, and that law enforcement has been unable to control the problem.” CRIMINAL JUSTICE IN CRISIS, supra n.11, at 44. See also, Coyle,Prosecutors Admit: No Victory in Sight, Nat. L. J., Aug. 8, 1988, at section 2, column 2. 

21. “Although the criminal justice system deals with only a fraction of the crime that is committed, the public mistakenly looks to the criminal justice system to eliminate the crime problem. Better public understanding of both the causes of crime and the important, but limited, role that the criminal justice system plays in its control is essential to meaningful change in our approach to the crime problem.” CRIMINAL JUSTICE IN CRISIS, supra n.11, at 7. 

22. CRIMINAL JUSTICE IN CRISIS, supra n.11, at 4. The Special ABA Committee found that of roughly 34 million serious crimes committed in this country during 1986, approximately 31 million were either unreported to, or unsolved by, the police. Id. The one crime which does not fit this pattern is, as one might guess, murder. Id.

23. CRIMINAL JUSTICE IN CRISIS, supra n.11, at 51. The Committee found that “it is a view increasingly held by people in law enforcement … that the use of dangerous drugs is a societal problem, one too pervasive to be ‘controlled’ simply by declaring it to be illegal.” Id. at 44. “Police, prosecutors, and judges told the Committee that they have been unsuccessful in making a significant impact on the importation, sale, and use of illegal drugs, despite devoting much of their resources to the arrest, prosecution and trial of drug offenders.” Id. at 6. 

24. According to the New York Times, “Law enforcement specialists say corruption within the American criminal justice system is more widespread now than at any time since Prohibition because of the explosion in the power and profits of the multibillion-dollar illicit drug industry.” Shenon, Enemy Within: Drug Money is Corrupting the Enforcers, April 11, 1988, at 1, col. 5. InVon Raab, speaking of Customs officials, the Supreme Court itself remarked on the high potential for corruption of law enforcement personnel fostered by the nearly unlimited financial resources of drug syndicates, the threat or use of violence, and the lucrative profits to be made from the diversion of seized drug caches: The physical safety of these employees may be threatened, and many may be tempted not only by bribes from the traffickers with whom they deal, but also by their own access to vast sources of valuable contraband seized and controlled by the Service… . Customs officers have been the targets of bribery by drug smugglers on numerous occasions, and several have been removed from the Service for accepting bribes and other integrity violations.

109 S.Ct., at 1392-93 (citations to government reports of disciplinary statistics omitted). 

25. CRIMINAL JUSTICE IN CRISIS, supra n.11, at 6. 

26. “The central strategy of the “war on drugs” assigns the task [of] deterring drug use to the criminal justice system. The “war” requires sure and harsh punishment as a deterrent sufficient to outweigh and monetary or personal benefit.” A. Silber, The War on Drugs is Destroying an Independent Defense Bar, THE CHAMPION (hereinafter, Silber) at 34 (March 1991). 

27. For the text of such a debate, see, SECOND ANNUAL LAWYERS CONVENTION OF THE FEDERALIST SOCIETY: THE CONSTITUTION AND FEDERAL CRIMINAL LAW (hereafter “FEDERALIST SYMPOSIUM”), Improving National Drug Policy, 26 American Criminal Law Review1683-1708 (Spring 1989). 

28. The need to eradicate the evil-effects of widespread drug abuse and drug crime is not in question. “The importance of ridding our society of such drugs is,” as Justice Marshall has written, “by now, apparent to all.” Skinner v. Railway Labor Executives’ Association, 109 S.Ct. 1402, 1422 (1989) (Marshall, J., dissenting). The issue is not the importance of the objectives, whose attainment is unfortunately not yet in sight, but instead the appropriateness of the means to be employed in attaining those goals. 

29. BJS Data Report, 1987, at 37. See generally, J. Doble, Crime and Punishment: The Public’s View (1987). A 1985 public opinion survey revealed that 57% of respondents felt that the justice system favors the wealthy; whereas, only 39% believe it affords all Americans equal treatment. P. Begans, ABC News/Washington Post Poll, Survey Nos. 196 & 197 (June 1985). The Special ABA Committee’s own recent poll found that the participants in the criminal justice system “sense this lack of public confidence;” believing, by a two-thirds margin, that the public neither understands nor respects their roles. CRIMINAL JUSTICE IN CRISIS, supra n.11, at 50. 

30. Spending for all criminal justice services in 1985 constituted only one-half of one percent (0.5%) of all government expenditures, ranking it next to last, just slightly above space research and technology, among our national spending priorities. CRIMINAL JUSTICE IN CRISIS,supra n.11, at 66 n.74. 

31. According to the ABA study: Constitutional restrictions, such as the exclusionary rule and Miranda, do not significantly handicap police and prosecutors in their efforts to arrest, prosecute, and obtain convictions of criminal defendants for most serious crimes. Rather, the major problem for the criminal justice system, identified by all criminal justice respondents to the Committee, is lack of sufficient resources. The entire system is starved: police, prosecution, criminal defense, courts, and corrections. As currently funded, the criminal justice system cannot provide the quality of justice the public legitimately expects and the people working within the system wish to deliver.

CRIMINAL JUSTICE IN CRISIS, supra n.11, at 5. The conclusion that enforcement of constitutional rights of the accused does not significantly hamper the efforts of law enforcement was supported by the testimony of those participating in the process and by empirical evidence. “As a whole, the testimony and the survey results demonstrate that constitutional limitations are not seen as a relatively significant problem by the people who must work within those limitations.” Id. “[P]olice, prosecutors, defense counsel, and judges, interviewed by the Committee, disagreed with the public perception that constitutional protections of criminal defendants are a significant cause of the dysfunction of the criminal justice system.” Id. at 39. 

32. United States v. Montoya de Hernandez, 473 U.S. 531, 538 (1985). See also, National Treasury Employees Union v. Von Raab, 109 S.Ct. 1384, 1392 (1989) (quoting from Montoya). The Court has also described the effects of drug abuse as “one of the greatest problems affecting the health and welfare of our population.” Id.

33. Reported in, S. Dash & S. Goretsky, We Don’t Need to Give Up Our Constitutional Protections to Fight the War on Drugs, in Criminal Justice 3, 4 (ABA Section on Criminal Justice, Spring 1990). 

34. The ABA task force reported that its “testimony and survey results consistently identify lack of adequate resources as the major problem facing each segment of the criminal justice system [which has led to] reduction of police protection to the public [and] other devastating repercussions of a starved criminal justice system.” CRIMINAL JUSTICE IN CRISIS,supran.11, at 40. 

35. Congress’ efforts to be seen as doing something in the war on drugs have led to one major assault on the rights of the accused after another. According to a recent editorial in theWashington Post, the 1991 session has shown no exception to this trend: FIVE TIMES in the past seven years Congress has passed a huge crime bill, usually in the final days of the session. This year’s version … expected to be sent to the White House before Congress adjourns for the year … [l]ike its predecessors . . . is a vehicle for allowing members to demonstrate that they are tough on crime and determined to escalate both rhetoric and penalties in the effort. Things can get pretty ugly in the race to set ever higher prison terms while restricting the rights of the accused and limiting the appeals process, and this year was no exception…. This approach is both mindless and mischievous, but members are convinced that this kind of vote makes them look tough. Unfortunately that seems to be the objective of all these now-annual debates, and they have become a truly disgraceful tradition.

Washington Post A26 (Oct. 23, 1991). 

36. In a recent article published in the Journal of the American Bar Association, Steven France observed, “The third century of the Bill of Rights dawns uncertainly. After several decades of expansion, the Bill may soon undergo an unprecedented shrinking&emdash;at least in the courts. The Supreme Court backlash against libertarian interpretations, more than 20 years in the making, finally has begun to make itself felt. Liberals are likely to remain a small minority on the High Court for the next quarter century.” S. France, First Principles, in ABA JOURNAL 41 (August 1991). 

37. In one of his last dissents, in Payne v. Tennessee, 111 S.Ct. 2597 (1991) (overruling Booth v. Maryland, 482 U.S. 496 (1987) and South Carolina v. Gathers, 490 U.S. 805 (1989), which had disallowed the use of “victim impact” evidence during the penalty phase of a capital murder trial), retired Justice Thurgood Marshall, joined by Justice Harry Blackmun, denounced the new, conservative majority for “[r]enouncing this Court’s historical commitment to a conception of ‘the judiciary as a source of impersonal and reasoned judgments.’” Id., at 2619 (Marshall J., dissenting) (citation omitted). “Power, not reason,” Justice Marshall remonstrated, “is the new currency of this Court’s decisionmaking….. Neither the law nor the facts supporting Booth andGathersunderwent any change in the last four years. Only the personnel of this Court did.” Id.

38. Illinois v. Gates, 462 U.S. 213, 241 (1983) (overruling line of cases springing from Aguilar v. Texas, 378 U.S. 108 (1964), and Spinelli v. United States, 378 U.S. 410 (1969), which had established a detailed two-prong test for establishing probable cause based upon the credibility of an informer and the underlying basis for his assertions). 

39. “The function of the legislature is primary, its exercises fortified by presumptions of right and legality, and is not to be interfered with lightly, nor by any judicial conception of their wisdom or propriety.” Weems v. United States, 217 U.S. 349, 379 (1910), quoted in Harmelin v. Michigan, 111 S.Ct. 2680, 2704 (1991) (Kennedy, J., concurring in part). 

40. See, e.g., Payne v. Tennessee, 111 S.Ct. 2597, 2607-2608 (1991). “Under our constitutional system, the primary responsibility for defining crimes against state law, fixing punishments of rht commission of these crimes, and establishing procedures for criminal trials rests with the States.” Id., at 2607. 

41. Justice John Paul Stevens, dissenting in Payne v. Tennessee, supra, bemoaned the untoward influence which he felt the Court was allowing popular sentiment in the war on crime to have on its constitutional adjudications:

I recognize that today’s decision will be greeted with enthusiasm by a large number of concerned and thoughtful citizens. The great tragedy of the decision, however, is the danger that the “hydraulic pressure” of public opinion that Justice Holmes once described,&emdash;and that properly influences the deliberations of democratic legislatures&emdash;has played a role not only in the Court’s decision to hear this case, and in its decision to reach the constitutional issue … but even in its resolution of the constitutional issue involved. Today is a sad day for a great institution.

111 S.Ct., at 2631 (Stevens, J., dissenting) (footnotes omitted). 

42. Just before his retirement, Justice Marshall accused the nascent conservative majority of launching a wholesale and reckless assault on established individual rights: Today’s decision charts an unmistakable course. If the majority’s radical reconstruction of the rules for overturning this Court’s decisions is to be taken at face value&emdash;and the majority offers us no reason why it should not&emdash;then the overruling of Booth and Gathers is but a preview of an even broader and more far-reaching assault upon this Court’s precedents…. Inevitably, this campaign to resurrect yesterday’s “spirited dissents” will squander the authority and the legitimacy of this Court as a protector of the powerless.

Payne v. Tennessee, 111 S.Ct. 2597, 2625 (Marshall, J., dissenting). 

43. California v. Acevedo, 114 L.Ed.2d 619, 648 (1991) (Stevens, J., dissenting). 

44. “The media attention [on sensational cases involving the exclusionary rule] invariably focuses on such a case and creates the impression that the entire criminal justice system is functioning irrationally; that guilty, dangerous persons, are routinely freed on technicalities.” CRIMINAL JUSTICE IN CRISIS, supra n.11, at 19. One of the major recommendations of the ABA Committee report was to mount a broad-based effort to encourage better public understanding of the criminal justice system, and the role which individual constitutional rights play in it. If we, as a nation, want to maintain our [individual rights] as guaranteed by the United States Constitution, it is critical that the public and the legal profession not be misled into believing that our constitutional rights contribute to the crime problem or work to hinder effective law enforcement. Precious constitutional rights should not be abrogated on the faulty premise that, without them, the crime problem will be solved or the failings of the criminal justice system will be corrected.

CRIMINAL JUSTICE IN CRISIS, supra n.11, at 22. 

45. The Fifth Amendment, contains three purely criminal procedural rights: the double jeopardy, self-incrimination, and grand jury guarantees. It also includes the due process clause, which has both criminal and civil applications, and the just compensation clause, which is entirely civil in nature. 

46. Monrad Paulson, writing about the Fourth Amendment, but in words equally applicable to most, if not all, of the protections against arbitrary governmental intrusions, prosecutions and proceedings in the criminal justice process, articulated this difficulty, even before the conservative reaction to the heyday of the Warren Court’s aggressive enforcement of the rights of the accused so emphatically proved the accuracy of his thesis: Whenever the rules are enforced by meaningful sanctions, our attention is drawn to their content. The comfort of Freedom’s words spoken in the abstract is always disturbed by their application to a contested instance. Any rule of police regulation enforced in fact will generate pressure to weaken the rule.

M. Paulson, The Exclusionary Rule and Misconduct by the Police,in Police Power and Individual Freedom 88 (Sowle ed. 1962). 

47. As Justice Black foresaw more than twenty years ago, “Unfortunately, grave evils such as the narcotics traffic can too easily cause threats to our basic liberties by making attractive the adoption of constitutionally forbidden shortcuts that might suppress and blot out more quickly the unpopular and dangerous conduct.” Turner v. United States, 396 U.S. 398, 427 (Black, J., dissenting). In the ensuing search for such shortcuts, a climate of disregard for the precepts of the Bill of Rights has been persistently growing ever since. A 1970 CBS Television survey, conducted in the aftermath of Richard Nixon’s successful, “law and order” presidential campaign, found substantial public support for abandonment of several of the important criminal procedural rights guaranteed by the first eight amendments. In those days of frequent anti-war protests against the national government’s war policies in Vietnam, roughly 75% of respondents said that they favored limiting rights of peaceful assembly to protest against the government. A majority was willing to abridge freedom of speech and the press, as well as procedural guarantees for confrontation of witnesses and immunity against double jeopardy and the privilege against self-incrimination. One-third would have permitted police to search houses for drugs, guns or evidence of crime, while 20 percent had no objection to the conduct of criminal trials in secret. CBS News Poll, Ser. 70, No. 1, Report 2 (Mar. 20, 1970). 

48. Skinner v. Railway Labor Executives’ Association, 109 S.Ct. 1402, 1422 (1989) (Marshall, J., dissenting). 

49. “Public education is often dependent on an informed media; yet, all too often, sensationalized reports reach the public with no reply from respected members of the organized bar. Part of the danger inherent in the bar’s failure to speak out in support of court enforcement of constitutionally guaranteed rights … is that the independence of the judicial system as a whole is diminished… . [The bar] must devise a means by which accurate information is provided to the media and then to the public.” CRIMINAL JUSTICE IN CRISIS, supra n.11, at 22-23. 

50. J. Lowell, The Present Crisis (1844). 

51. The Federalist No. 51, at 262 (G. Wills ed. 1982) (hereafter, The Federalist). Abraham Lincoln expressed the same quandary in different words nearly three-quarters of a century later: As quoted in Minersville School District v. Gobitis, 310 U.S. 586, 596: “‘Must a government of necessity be too strong for the liberties of its people, or too weak to maintain its own existence?’” 

52. Quoted in, R. Rutland, Framing and Ratifying the First Ten Amendments, in Levy & Mahoney, supra, at 308 (letter from Madison to Jefferson, Oct. 17, 1788). According to Bernard Schwartz, “The purpose [of the Bill of Rights] was to limit and qualify power, guard against legislative and executive abuses, and protect the minority against the majority.” GREAT RIGHTS, supran.3. 

53. 5 The Writings of James Madison (Hunt ed. 1904) 389-90 (J. Madison, speech in House of Representatives introducing proposal for federal bill of rights, June 8, 1789). 

54. Professor Schwartz has expressed the same principle in a slightly different form: By adding the first ten amendments to the Constitution, [the Framers] placed these great rights beyond the reach of the ordinary political processes and even beyond that of the angry populace…. It was precisely to ensure that, in our system, we would be able to say, “The Government cannot do this” that the Bill of Rights was added to the Constitution. Its limitations make certain that individual rights are not subject to shifts in public opinion, whether expressed in Gallup-type polls or legislative halls. The Bill of Rights represents a continuing appeal from the people drunk to the people sober in times of tension or hysteria.

GREAT RIGHTS, supra n.3, at 192. 

55. Most comment on the Framers’ emphasis on criminal law procedural reform has focused on the Fourth Amendment. For example, in Lopez v. United States, 373 U.S. 427, 454 (1963), Justice Brennan wrote that “The Warrant Clause was aimed specifically at the evil of the general warrant, often regarded as the single immediate cause of the American Revolution.” Professor Schwartz appears to be one of the few scholars who have made the broader observation that the Bill of Rights as a wholeis predominantly devoted to the Framers’ concern with substantive and procedural fairness in the application of the criminal laws: “In large part, American bills of rights sought foremost to correct the deficiencies of English criminal law, a legacy of barbarism that had stretched its long arm across the ocean to touch the colonists time and time again in painful and humiliating ways.” Great Rights, supra n.3, at 196. 

56. Madison, like most of the Federalists, originally opposed the idea of a Bill of Rights, but was eventually brought around to support, and even author them. Important in Madison’s conversion were the arguments of his friend Thomas Jefferson, the political imperatives created by the demands of his constituents in an uncomfortably close race against the Antifederalist candidate, James Monroe, the need to overcome opposition to the original Constitution for its failure to include such a bill, and finally, the conviction that the people’s fundamental rights should be expressed in the Constitution “not because they are necessary, but because they can produce no danger, and may gratify some gentlemen’s wishes.” A. Wilmarth, Jr., The Original Purpose of the Bill of Rights, 29 American Criminal Law Review 1289-1293 (Spring 1989) (hereafter,Wilmarth) (quoting letter from Madison to Hamilton of June 22, 1788). 

57. In introducing the resolution which became the Bill of Rights, Madison emphasized the critical relationship between a constitutional enumeration of procedural protections and the power of the courts to declare and apply the law in the cases before them: If [such rights are] incorporated into the constitution, independent tribunals of justice will consider themselves in a peculiar manner the guardians of those rights; they will be an impenetrable bulwark against assumption of power in the legislative or executive; they will be naturally led to resist every encroachment upon rights expressly stipulated for in the constitution by the declaration of rights.

2 The Bill of Rights: A Documentary History 1031-32 (B. Schwartz ed. 1971) (hereafterDocumentary History). 


59. GREAT RIGHTS, supra n.3, at 196. 

60. GREAT RIGHTS, supra n.3, at 157-158. See also, R. Rutland, Framing and Ratifying the First Ten Amendments, in Levy & Mahoneyat 311. Prof. Schwartz has created a useful table showing the particular provisions, and the states proposing them. 

61. Id. 

62. R. Rutland, in Levy & Mahoney, at 311. 

63. In his influential work on the history of the Bill of Rights, THE GREAT RIGHTS OF MANKIND, Professor Bernard Schwartz identifies and traces the history of 26 separate “Bill of Rights Guarantees.” Id. at 87-90. The last mentioned right, which Schwartz refers to as “Reserved powers,” covers the general statements of the Ninth and Tenth Amendments reserving all powers and rights not delegated to the federal government to the several states and to the people, respectively. Since no individual right has ever been conclusively grounded in either of the last two amendments in the Bill of Rights, only those enumerated liberties contained in the first eight amendments are counted here as distinct guarantees. 

64. The First Amendment makes no mention of criminal prosecutions, to be sure; but it requires no citation to case law for us to recognize that many, if not most, abridgements of the rights of free speech, free press, free exercise of religion, freedom of assembly, and the right to petition government for redress of grievances have come (and still arise) in the form of criminal statutes and prosecutions enforcing them. 

65. Arguably, the due process clause of the Fifth Amendment could be included among those safeguards which primarily relate to the criminal justice system. This broadest of all constitutional guarantees places substantive limits on, and requires fair procedures in, any governmental action which causes a person to be “deprived of life, liberty, or property.” While due process interests may be implicated in any number of diverse circumstances, many applications of the clause, particularly those involving the life (as in the death penalty, or the use of deadly force by police) and liberty (as in imprisonment) prongs, are intrinsic to the criminal justice process. 

66. Schwartz counts the two clauses of the Fourth Amendment, the first prohibiting all unreasonable searches and seizures (the Reasonableness Clause), and the latter barring the issuance of warrants “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” (usually referred to as the Warrant Clause), as a single guarantee against unreasonable search and seizure. Although a reasonable argument for considering these to represent two distinguishable rights could certainly be made, see, e.g., x, The Fourth Amendment’s Two Clauses, in 26 American Criminal Law Review, No. 4 (Spring 1989) (hereafter, x) 1389 et. seq., Schwartz seems well-justified in treating the two clauses as protecting a single liberty interest. Madison’s original version of this amendment, like most of the similar clauses found in state bills of rights at the time, expressed the General Warrant ban as a dependent clause to the major, unreasonableness prohibition. See Amendments Proposed by James Madison, June 8, 1789, set out in GREAT RIGHTS, supran.3, Appendix A (hereafter Madison Amendments), at 231, 232. See generally, x, supra, at 1391. Thus, it was the underlying rightto be free from unreasonable searches and seizures which the amendment, in its original form, provided “shall not be violated by warrants issued without probable cause….” Id. (Emphasis added.) This derivation provides linguistic support for Schwartz’s treatment of the former clause as incorporating the latter. 

67. Fourth Amendment restrictions apply, for example, to inspections of certain regulated businesses, see New York v. Burger, 482 U.S. 691 (1987), to work-related searches of the desks and offices of public employees, see O’Connor v. Ortega, 480 U.S. 709 (1987), and to searches of students’ property by public school officials, see New Jersey v. T.L.O., 469 U.S. 325 (1985). 

68. And what of the rights of society or of the crime victim, rights which the Framers did not see fit to include in the constitution? It is surely not that the Framers were unconcerned with these interests; rather, they simply understood, with good reason, that such rights&emdash;unlike those of the accused&emdash;will never lack for strong advocates in the democratic, political process; therefore&emdash;unlike the rights of criminal defendants&emdash;the rights of victims and the public at large do not require constitutional protection. It is perhaps with the Framers themselves&emdash;those who chose which fundamental rights to enshrine in the constitution&emdash;not the courts, that present-day advocates for the “original understanding” of the constitution have their true grievance. 

69. An ex post facto law is one which purports to criminalize past conduct. The prohibition has application only to criminal laws. 

70. Bill of Attainder was the name for the practice of pronouncing one guilty of a high crime, usually treason, and sentencing him to death and “attainting” or forfeiting all of his estate, by means of a simple legislative act without any trial or right of defense, whatsoever. The federal prohibitions against ex post facto laws and bills of attainder are both contained in Article I, Section 9. A related prohibition, providing that “no Attainder of Treason shall work Corruption of Blood, or Forfeiture except during the Life of the Person attained,” is contained in Article III, Section 3. The states are also forbidden from passing any ex post facto law or bill of attainder, under Article I, Section 10. 

71. “The privilege of the Writ of Habeas Corpus shall not be suspended, unless when in Cases of Rebellion or Invasion the public Safety may require it.” U.S. CONST. art. I, 9. 

72. In Taylor v. Kentucky, 436 U.S. 478, (1978), the Supreme Court held that the failure of a trial court to instruct the jury on the presumption of innocence resulted in a violation of his right to a fair trial as guaranteed by the Due Process Clause of the Fourteenth Amendment. 

73. Supreme Court has held that the Due Process Clause of the Fourteenth Amendment requires proof of guilt beyond a reasonable doubt in every criminal trial. In re Winship, 397 U.S. 358. 

74. Brady v. Maryland, 373 U.S. 83 (1963). 

75. Faretta v. California, 422 U.S. 806 (1975). 

76. Wardius v. Oregon, 412 U.S. 470, 474 (1973). The Wardiusdecision struck down a state rule which required defendants to give notice of an alibi defense without affording them any reciprocal rights of discovery against the prosecution. 

77. Estelle v. Williams, 435 U.S. 501, 503 (1976). 

78. In the political arena, and in civil litigation, a similar role is played by civil liberties advocacy groups and attorneys. 

79. Silber, supra n.26, at 35. 

80. R. Dworkin, Fact Style Adjudication and the Fourth Amendment: The Limits of Lawyering, 48 Ind. L. J. 329, 330-331 (1973), quoted in Kamisar, The Fourth Amendment and its Exclusionary Rule, in The Champion, at 22 (September/October, 1991). 

81. James v. Illinois, 110 S. Ct. 648, 651, 107 L. Ed. 2d 676 (1990) (refusing to extend the holding in United States v. Havens, 447 U.S. 620, 624-25, 627-28 (1980) in which the court sanctioned using illegally seized evidence to impeach a testifying defendant, to permit use of such tainted evidence to contradict the testimony of a defense witness other than the defendant). 

82. Spano v. New York, 360 U.S. 315, 320-321 (1959). 

83. Florida v. Bostick, 115 L.Ed.2d 389, 402 (Marshall, J., dissenting). In Bostick, a 6-3 majority of the Supreme Court upheld as consensual, and therefore without any requirement of antecedent suspicion or justification, the random sweep by groups of police officers of long-distance buses for the purpose of intercepting drug traffickers by questioning passengers and requesting consent to search their luggage. Justice Marshall’s dissent quoted from a decision of the District Court for the District of Columbia which had overturned a similar practice: “‘In this ‘anything goes’ war on drugs, random knocks on the doors of our citizens’ homes seeking ‘consent’ to search for drugs cannot be far away. This is not America.’ United States v Lewis, 728 F Supp 784, 788-789, rev’d, _____ US App DC ______, 921 F2d 1294 (1990).” 115 L.Ed.2d, at 404. 

84. P. Stewart, The Road to MAPP v. OHIO and Beyond: The Origins, Development and Future of the Exclusionary Rule in Search-and-Seizure Cases, 83 Columbia L. Rev. 1365, 1393 (1983). Former Assistant Attorney General (Criminal Division) and federal prosecutor Edward S. G. Dennis recently summed up his own views on the diverse objectives of our criminal justice system. “[I]t is not only the result (the conviction or acquittal) which is important, it is also the integrity of the process by which you arrive at that result. And that integrity of process should be recognized as equally important as that result by the defendants, the defense lawyers and the prosecutors.” FEDERALIST SYMPOSIUM, supra n.27, at 1709, 1712 (remarks in SYMPOSIUM: PROCEDURAL SAFEGUARDS AND JUSTICE). 

85. GREAT RIGHTS, supra n.3, at 93. 

86. Levy at 10. 

87. GREAT RIGHTS, supra n.3, at 95. The term “apparently” is employed here because the report of the decision has been lost, and what is known of it is based, necessarily, on hearsay. Id.Professor Schwartz, noting that some scholars have questioned whether Holmes v. Waltonactually involved the invalidation of a statute on constitutional grounds, maintains, based upon contemporaneous accounts, “At the least, these indicate that contemporaries did regard Holmes v. Walton as a precedent for judicial review.” Id.

88. 4 Call, at 20. Since Call’s report of the decision was not published until 1827, and it conflicts to a significant extent with the contemporaneous notes of one of the Justices, there is some question of whether or not all the judges joined in this dictum. In any event, the statute before the court was not invalidated, but the words of Judge George Wythe, a leading jurist of the day, that “I shall not hesitate, sitting in this place, to say … to the usurping branch of the legislature, you attempt worse than a vain thing,” were of great influence in the developing doctrine of judicial review. GREAT RIGHTS, supran.3, at 96-98. See also, Levy, in Levy & Mahoney, at 10. (“Commonwealth v. Caton (1782) was probably the first case in which a state judge declared that a court had power to hold a statute unconstitutional….”) 

89. GREAT RIGHTS, supra n.3, at 97. Levy, in Levy & Mahoney, at 10. 

90. GREAT RIGHTS, supra n.3, at 97-98. 

91. Levy & Mahoney, at 10. 

92. 1 N.C. 5 (1787). 

93. Id., at 7. 

94. 4 Call 135 (Va. 1788). The judges published a Remonstrance, which was delivered to the legislature, asserting that they were “obliged to decide, however their delicacy might be wounded, or whatever temporary inconveniences might ensue,” which obligation was “within the line of their duty, declaring what the law is, and not making a new law.” Quoted in GREAT RIGHTS,supra n.3, at 99-100. 

95. Levy at 10. Professor Schwartz is in agreement: these cases “anticipated the reasoning of Marshall a decade and a half later in Marbury v. Madison.” GREAT RIGHTS, supra n.3, at 100. 

96. 1 Cranch 137, 176-77 (1803) (striking down Section 13 of the Judiciary Act of 1789). 

97. In Marbury, Marshall was echoing, as accepted doctrine, the partisan arguments which he had made 15 years earlier in articulating the Federalist position at the Virginia Ratifying Convention of 1788: “If Congress makes a law not warranted by any of the powers enumerated, it would be considered by the judges as an infringement of the Constitution which they are to guard. They would not consider such a law coming within their jurisdiction. They would declare it void.” Quoted in, Friendly & Elliott, at 8. Of Marshall, who “moved into a judicial vacuum and in thirty-five years converted the Supreme Court from an object of derision, even contempt, to a major coordinate agency of the national government,” J. Roche, ed., John Marshall: Major Opinions and Other Writings xxxii, John Randolph, the Antifederalist firebrand, is said to have cried in despair, “All wrong, all wrong, but no man in the United States can tell why or wherein.” E. Corwin, Marshall and the Constitution 24. 

98. J. Madison, Letter of October 1788 to Thomas Jefferson, quoted in, S. France, First Principles, ABA Journal 39 (August 1991). 

99. “The perception of the criminal defense lawyer as an aide de camp to the “enemy” is now held not only by the public, but also by a significantly higher number of judges and prosecutors. Many have reported the difference in judicial and prosecutorial attitudes when defending a drug case as opposed to defending, for example, insider-trading cases or medicaid fraud.” Silber, supran.26, at 34. 

100. This impression is fostered even by members of the federal bench. Federal Judge Malcolm Wilkey, a well-known opponent of the Fourth Amendment exclusionary rule, writes: “The layman says, ‘He got off on a technicality.’ The layman is right. If the criminal was sprung by the exclusionary rule, he did get off on a technicality, a technicality whose application breeds disrespect for all law.” M. Wilkey, Enforcing the Fourth Amendment by Alternatives to the Exclusionary Rule 21 (1982). 

101. The Exclusionary Rule Bills: Hearings on S. 101, S. 751, and S. 1995, Before the Subcommittee on Criminal Law of the Senate Committee on the Judiciary, 97th Cong., 1st and 2nd Sess., at 33 (1981-82). Professor John Kaplan authored perhaps the classic statement of this problem in 1974: Probably the major reason for the high political price of the exclusionary rule is that, by definition, it operates only after incriminating evidence has already been obtained. As a result, it flaunts before us the costs we must pay for fourth amendment guarantees. Of course, the command of the fourth amendment itself contemplates less than complete efficiency in criminal law enforcement. The problem is that the exclusionary rule rubs our noses in it. In contrast, a sanction which actually prevents police violations of the fourth amendment would permit many criminals to remain free who would be caught either in a society which had no fourth amendment rights or in a society, such as ours, where the rights are observed so imperfectly. Where guarantees of individual rights are actually obeyed by the police, criminals are not discovered and thus no shocking cases come to public consciousness. When we apply the exclusionary rule, however, we know precisely what we would have found had constitutional rights not been violated (because, of course, in these cases they were violated), and we are forced to witness the full, concrete price we pay for these guarantees.

Kaplan, The Limits of the Exclusionary Rule, 26 Stan. L. Rev. 1027, 1037-38 (1974) (emphasis in original). 

102. The stakes involved in the drug war have not escaped the attention of the Supreme Court. Drug possession, abuse, and distribution constitute “one of the greatest problems affecting the health and welfare of our population.” National Treasury Employees’ Union v. Von Raab, 109 S.Ct. 1384, 1392 (1989). An excellent example of the emotionalism and fuzzy thinking engendered by the passions surrounding the drug war is found in Harmelin v. Michigan, 111 S.Ct. 2680 (1991). At issue was whether or not a mandatory sentence of life imprisonment without parole for a first offender convicted of simple possession of 672 grams of cocaine was so disproportionate to the offense as to constitute cruel and unusual punishment. By a vote of 5-4, a splintered majority upheld the sentence. Justice White, writing for the four dissenters, made the fairly unexceptionable point that the only crime of which Harmelin had been convicted,simplepossession of cocaine (i.e. without proof of any intention to distribute) was, by itself, neither one of violence nor one directed against the persons or property of others. Id., at 2716 (White, J., dissenting). He then made the debatable, but still far from vapid argument, that the collateral, societal consequences of drug use, though admittedly severe overall, could not support a mandatory sentence of a lifetime in prison against every individual convicted of simple possession, because “punishment must be tailored to a defendant’s personal responsibility and moral guilt.” Ibid. The tone, if not the substance, of Justice Kennedy’s bristling response powerfully suggests the “hydraulic pressures” of the drug war mentality at work: “Petitioner’s suggestion that his crime was nonviolent and victimless, echoed by the dissent, see post, at 2716-2717, is false to the point of absurdity.” Id., at 2706 (Kennedy, J., concurring in the judgment). 

103. Skinner v. Railway Labor Executives’ Association, 109 S.Ct. 1402 (1989) (Marshall, J., joined by Brennan, J., dissenting). The political representatives of the people, the legislators who make the laws, and the executive officials charged with their enforcement, as the Framers well understood, can hardly be expected to tread lightly where the rights of drug traffickers, or other equally despicable perpetrators, are involved. As the infamous Willie Horton theme of the 1988 Presidential election reminds us, there is simply no political benefit to be garnered by coddling criminals or being a “card-carrying member” of an organization, like the American Civil Liberties Union, devoted to the safeguarding and promotion of our Bill of Rights. Criminal defendants do not comprise a valuable segment of the electorate, nor are they a “special interest” group with which any ambitious politician would wish to associate himself. 

104. Northern Securities Co. v. United States, 193 U.S. 497, 400-401 (1904) (Holmes, J., dissenting). 

105. FEDERALIST SYMPOSIUM, supra n.27, at 1659 (Keynote Address By President Ronald W. Reagan). After chronicling the achievements of his administration in the war on drugs, President Reagan repeatedly painted “liberals,” those who opposed the administration’s drug war policies based upon constitutional scruples, among the effort’s enemies. “[A]s at other junctures in the war on drugs, once again too many liberals oppose us.” Id. at 1663. Dissenters were accused by the President, not just of error, but of treason: “Will they ever learn the difference between special interest and the national interest?” Id. at 1662. 

106. “[T]he American Civil Liberties Union and its ideological allies are the largest obstacle we face today in achieving an effective drug policy.” FEDERALIST SYMPOSIUM, supra n.27, at 1693. (remarks of Richard K. Willard, former Assistant Attorney General) 

107. CRIMINAL JUSTICE IN CRISIS, supra n.11, at 1. 

108. CRIMINAL JUSTICE IN CRISIS,supra n.11, at 36. See also, J. Doble, Crime and Punishment: The Public’s View 24 (1987). According to Doble, “The low esteem respondents expressed for the courts is also reflected in feelings about ‘smart, expensive lawyers’ who help guilty clients escape punishment as long as they have enough money.” Id. at 24. 

109. CRIMINAL JUSTICE IN CRISIS, supra n.11, at 2. 

110. Id. The sources of the Committee’s crime statistics were three government studies, theNational Crime Survey (NCS) as reported in Bureau of Justice Statistics, U.S. Dept of Justice, BJS Data Report, 1987, at 8 (1988); Uniform Crime Reports (UCR) as reported in Federal Bureau of Investigation, U.S. Dept of Justice, Crime in the United States, 1986, at 41, 154 (1987); and B. Boland, W. Logan, R. Sones & W. Martin, The Prosecution of Felony Arrests, 1982, at 2 (Bureau of Justice Statistics, U.S. Dep’t of Just., 1987). 

111. Id. The vast bulk of serious crimes, 31 million of them in 1986, “never were exposed to arrest, because either they were not reported to the police or if reported, they were not solved with arrests.” Id. 

112. Of the 9 percent of serious crimes in which felony arrests were made, the Committee found that about one half are likely to result in felony prosecutions and convictions. Of these convictions, in turn, only about half actually result in prison sentences. Id.

113. Id. at 4, citing, BJS Data Report, 1987, at 60. 

114. BJS Data Report, 1987, at 56. 19 States reported 18,617 early releases due to overcrowding in 1985. Id. at 60. A large number of correctional facilities, and the entire prison system of the District of Columbia and several States, have been operating under court order or consent decree due to prison conditions deemed so harsh as to constitute cruel and unusual punishment. Id. 

115. Proceedings of the 51st Judicial Conference of the District of Columbia Circuit (May 21, 1990) (hereafter Judicial Conference), 134 R.F.D. 321, 346 (remarks of Prof. Yale Kamisar). 

116. CRIMINAL JUSTICE IN CRISIS, supra n.11, at 5. 

117. CRIMINAL JUSTICE IN CRISIS, supra n.11, at 12. 

118. Id. at 17. 

119. Id. Similar statistics have been cited by Professor Kamisar: “Various studies have shown that the total effect of the Fourth Amendment on drug cases is maybe a loss of three to seven percent.” Judicial Conference, 134 F.R.D. at 346. 

120. CRIMINAL JUSTICE IN CRISIS, supra n.11, at 17. 

121. See, e.g,, 1 LaFave, Search and Seizure: A Treatise on the Fourth Amendment 22 n.6 (citing and discussing results of studies and analyses). Professor LaFave relates that a study of U.S. Attorneys’ offices in 1978 showed that in only 1.3% of 2,804 defendants’ cases was tainted evidence actually suppressed, and of these defendants, more than half were convicted on the remaining evidence, nevertheless. Id. He cites another study which found that “due process related reasons accounted for only a small portion of the rejections at [prosecutor] screening&emdash;from 1 to 9 percent.” Id. Still another survey reported by LaFave, this one of 9 medium-sized counties in Illinois, Michigan and Pennsylvania, found that the total percentage of convictions “lost” because of search and seizure issues came to only 0.56%. Id. See also, Davies,A Hard Look at What We Know (And Still Need to Learn) About the “Costs” of the Exclusionary Rule, 1983 A.B.F.Res.J. 611; Canon, The Exclusionary Rule: A Conservative Argument for its Retention, 23 So.Tex.L.J. 559 (1982); Fyfe, Enforcement Workshop: The NIJ Study of the Exclusionary Rule, 19 Crim.L.Bull. 253 (1983). 

122. CRIMINAL JUSTICE IN CRISIS, supra n.?, at 8. 

123. Id. at 5. 

124. Id. at 5. 

125. Id. at 4. 

126. Id. at 4-5. This was the subject of another of the Committee’s major findings: Although the criminal justice system deals with only a fraction of the crime that is committed, the public mistakenly looks to the criminal justice system to eliminate the crime problem. Better public understanding of both the causes of crime and the important, but limited, role that the criminal justice system plays in its control is essential to meaningful change in our approach to the crime problem.

Id. at 7. 

127. CRIMINAL JUSTICE IN CRISIS, supra n.11, at 6. 

128. Judicial Conference, 134 F.R.D. 321, 346 (remarks of Prof. Kamisar). 

129. CRIMINAL JUSTICE IN CRISIS, supra n.11, at 8. 

130. Id. at 44. 

131. Id., at 1425 (Marshall, J., dissenting). 

132. Id., at 1426. 

133. Professor Kamisar has written, sardonically, in the Fourth Amendment context, that “more than a few close students of the Court might have responded: ‘There is now.’” Y. Kamisar, The Fourth Amendment and its Exclusionary Rule, in The Champion, at 20 (September/October 1991) (emphasis in original). 

134. See Wisotsky, Crackdown: The Emerging “Drug Exception” to the Bill of Rights, 38 Hastings L.J. 889. 

135. The examples below are provided to illustrate the accelerating process by which the incumbent majority of the justices, who are commonly thought of as practitioners of judicial restraint, have abandoned principles of stare decisis in overturning or sharply limiting earlier precedent which had established a more expansive, or liberal, view of the constitutional right in question. In highlighting, as a general proposition, the Court’s sharp turn away from a broad appreciation of the underlying purposes and vitality of the “great rights of mankind” as a consequence of the prevailing sentiment of the war on drugs, a trend which the author profoundly deplores, the author does not intend to intimate a personal view as to the correctness of the ultimate adjudication in each particular case. 

136. U.S. CONST. amend. IV. 

137. “[T]he Fourth Amendment is probably one of the least popular constitutional provisions…. [T]here is good reason to believe that most Americans&emdash;and too many judges&emdash;consider the Fourth Amendment ‘a kind of nuisance, a serious impediment to the war against crime….’” Kamisar, The Fourth Amendment And its Exclusionary Rule, in The Champion, at 20 (September/October, 1991) (quoting from Harris v. United States, 331 U.S. 145, 157 (1947) (Frankfurter, J., dissenting)). 

138. 1 LaFave, Search and Seizure: A Treatise on the Fourth Amendment 22 (2d ed. 1987) (citations omitted). 

139. 367 U.S. 643 (1961). The Fourth Amendment exclusionary rule, made applicable to state prosecutions in Mapp, and the rules governing custodial interrogation established under the Fifth Amendment in Miranda v. Arizona, 384 U.S. 436 (1966), have been by far the subject of the greatest controversy, among both scholars and the public. Whereas Miranda is clearly a rule of recent vintage, critics of the exclusionary rule frequently forget that it has been consistently applied in all Federal prosecutions since the 1914 decision of the Supreme Court in Weeks v. United States, 232 U.S. 383 (1914). As Professor Kamisar has pointed out, the exclusionary rule “was not an ‘innovation’ of the Warren Court. Rather, it was rule established by the White Court and reaffirmed by the Taft, Hughes, Stone and Vincent Courts. Among its supporters were such luminaries as Holmes, Brandeis, and Frankfurter.” Kamisar, The Fourth Amendment and its Exclusionary Rule, in The Champion, at 24 n.20 (September/October, 1991). 

140. The Burger Court established a number of areas in which it would not, based on an ad hoccost-benefit analysis comparing the marginal benefit of deterrence against the cost of excluding probative evidence, enforce the exclusionary rule. See, e.g., United States v. Calandra, 414 U.S. 338 (1974) (allowing use of grand jury questions based on illegally seized evidence);United States v. Janis, 428 U.S. 433 (1976) (tainted evidence may be used by government in parallel civil proceedings against criminal defendants); Stone v. Powell, 428 U.S. 465 (1976) (exclusionary rule not to be entertained on Federal habeas corpus proceedings where prisoner has had full and fair opportunity to litigate claim in state court because additional deterrence deemed insufficient to outweigh interests of federalism); Rakas v. Illinois, 439 U.S. 128 (1978) (narrowing the rule of “standing” to assert exclusionary rule and overruling the concept of automatic standing on the part of “target” of questioned search); United States v. Ceccolini, 435 U.S. 268 (1978) (admitting testimony of government witness secured by exploitation of tainted evidence); United States v. Havens, 446 U.S. 620 (1980) (defendant may be cross-examined by use of illegally obtained evidence); INS v. Lopez-Mendoza, 468 U.S. 1032 (1984) (allowing use of tainted evidence in deportation proceedings). 

141. 468 U.S. 897 (1984). 

142. See also, Illinois v. Krull, 480 U.S. 349 (1987). In Krull, the Court ruled admissible evidence seized by police in good faith reliance on an unconstitutional statute. 

143. See, e.g., Rakas v. Illinois, 439 U.S. 128 (1978) (holding mere passenger in automobile lacked personal “legitimate expectation of privacy” in vehicle’s glove compartment); Rawlings v. Kentucky, 448 U.S. 98 (1980) (owner of drugs lacked standing to object to unlawful seizure of them from girlfriend’s purse). 

144. Schneckloth v. Bustamonte, 412 U.S. 218 (1973). In Schneckloth, the Supreme Court held that the validity of consent to conduct a search which would otherwise violate the dictates of the Fourth Amendment is to be determined under a standard of voluntary consent, i.e., a lack of actual coercion, rather than waiver. The Court refused to apply the “knowing and intelligent relinquishment” standard, applied to waivers of other individual constitutional rights, see, e.g.,Johnson v. Zerbst, 304 U.S. 458, 464-465 (1938), in the search and seizure context. UntilSchneckloth, the Court had consistently held that “[w]aivers of constitutional rights not only must be voluntary but must be knowing, intelligent acts done with sufficient awareness of the relevant circumstances and likely consequences.” Brady v. United States, 397 U.S. 742, 748 (1970). This mode of analysis has led naturally to the propositions that a third-party with shared authority over the premises, United States v. Matlock, 415 U.S. 164 (1974), and, more recently, that even an individual with apparent, but without actual authority, Illinois v. Rodriguez,110 S. Ct. 2793 (1990), can eviscerate a suspect’s “personal” Fourth Amendment rights by giving police consent to search. 

145. Wasserstrom, The Incredible Shrinking Fourth Amendment, 21 American Criminal Law Review 257 (1984). 

146. See also, LaFave, Fourth Amendment Vagaries (of Improbable Cause, Imperceptible Plain View, Notorious Privacy, and Balancing Askew), 74 J. Crim. L. & C. 1171, 1224 (expressing concern that “the maleficent trafficking in drugs” threatens to give rise to “atrophy of the Fourth Amendment”). 

147. Saltzburg, Another Victim of Illegal Narcotics: The Fourth Amendment (As Illustrated by the Open Fields Doctrine), 48 U. Pitt. L. Rev. 1, 23 (1986). 

148. Wasserstrom, The Court’s Turn Toward a General Reasonableness Interpretation of the Fourth Amendment, 27 American Criminal Law Review 119, 148 (1989). 

149. New Jersey v. T.L.O., 469 U.S. 325, 105 S.Ct. 733, 83 L.Ed.2d 720 (1985). 

150. 480 U.S. 709, 107 S.Ct. 1492, 94 L.Ed.2d 714 (1987). 

151. 483 U.S. 868, 107 S.Ct. 3164, 97 L.Ed.2d 709 (1987). For a well-balanced discussion of the Court’s recent turn away from the traditional warrant and probable cause standards in favor of “an open ended approach toward the fourth amendment,” see Wasserstrom, The Court’s Turn Toward a General Reasonableness Interpretation of the Fourth Amendment, 27 American Criminal Law Review 119 (1989). 

152. 479 U.S. 367 (1987). In Bertine, the Court held that a canister, inside a pouch, inside a backpack, within the accused’s locked vehicle was, in spite of all of these manifestations of an expectation of privacy, nevertheless subject to an inventory search on the road or at the impoundment lot. 

153. Smith v. Maryland, 442 U.S. 735, 743 (1979). The Court also held that because a caller voluntarily conveys the numbers he dials to third parties like the telephone company itself, no subjective expectation of keeping the identity of those numbers private from the government was “one that society is prepared to recognize as ‘reasonable.’” Id., at 743-744 (quoting from Katz v. United States, 389 U.S. 347, 361 (1967)). 

154. 462 U.S. 696 (1983). 

155. 108 S.Ct. 1625 (1987). 

156. 480 U.S. 294 (1987). 

157. See Oliver v. United States, 466 U.S. 170 (1984). 

158. 476 U.S. 207 (1986). 

159. See also, Florida v. Riley, 109 S.Ct. 693 (1989). Using similar logic, the Court had previously held that an individual whose travel on the public streets was tracked by virtue of a police-installed “beeping” device inside a bottle of chloroform lacked any standing to complain under the Fourth Amendment. “A person travelling in an automobile on public thoroughfares,” according to the majority opinion, has no reasonable expectation of privacy in his movements from one place to another.” United States v. Knotts, 460 U.S. 276 (1983). 

160. For a sobering view of the explosive growth of technological surveillance programs and computerized databases already in widespread use by law enforcement authorities in the war on drugs, see D. Gordon, Someone to Watch Over Me, in Criminal Justice, at pp. 7-9, 43-46 (Spring 1990). According to Professor Gordon, a former president of the National Council on Crime and Delinquency, the FBI Identification Division alone “holds the print cards of 25 million people in its criminal files.” Id., at 9. The FBI’s National Crime Information Center maintains “about 8 million records on people and objects sought by law enforcement.” Ibid. 

161. A. Gildea & D. Weiler, Unreasonable Searches and Seizures, 29 American Criminal Law Review 1397, 1428-1432 (Spring 1989) (hereafter Gildea & Weiler). 

162. 389 U.S. 347 (1967). 

163. Id. at 357. 

164. 26 American Criminal Law Review, at 1426-1427. 

165. 109 S.Ct. 1384 (1989). 

166. 109 S.Ct. 1402 (1989). 

167. The decision in Skinner upheld blanket blood and breath tests of railroad workers involved in a train accident or in violations of certain safety rules. 

168. Justice Scalia joined in Justice Kennedy’s opinion for the Court in Skinner, which did not involve “an excretory function traditionally shielded by great privacy,” 109 S.Ct., at 1418, i.e.,urine sampling. 

169. National Treasury Employees’ Union v. Von Raab, 109 S.Ct.1384, 1401 (1989) (Scalia, J., dissenting). 

170. 110 S.Ct. 2481 (1990). 

171. 110 S. Ct. 1093, 108 L. Ed. 2d 276 (1990). 

172. 110 S. Ct. 2793 (1990). 

173. A woman told police she had been beaten by the defendant at “our” apartment and produced a key. Police entered the premises without a warrant and found drugs in plain view. Later police learned the woman had moved out weeks earlier and had no authority to give consent. The Court remanded the case to determine whether police reasonably believed that the woman had common authority over the premises. 

174. 110 S. Ct. 2301 (1990). 

175. 114 L.Ed.2d 619 (1991). 

176. 442 U.S. 753 (1979). 

177. California v. Acevedo, 114 L.Ed.2d, at 648 (Stevens, J., dissenting). 

178. Florida v. Bostick, 115 L.Ed.2d 389 (1991). The majority, in an opinion by Justice O’Connor, held that such sweeps, in which armed and uniformed law enforcement agents enter interstate and intrastate buses during stops, accost passengers, demand identification, and ask to search passengers’ luggage, do not necessarily constitute searches or seizures under the Fourth Amendment. Such a “consensual encounter,” in the opinion of the Court, implicates Fourth Amendment concerns only where the accused can establish that “the police conduct would have communicated to a reasonable person that the person was not free to decline the officers’ requests or otherwise terminate the encounter.” Id., at 402. The dissenters would have affirmed the decision of Supreme Court of Florida holding that the defendant had been unlawfully seized because, in their view, in the absence of an articulable, individualized suspicion of wrongdoing, or an explicit warning of the right to refuse to cooperate, id., at 409 (Marshall, J., dissenting), this “increasingly common tactic” of the suspicionless bus sweep “bears all of the indicia of coercion and unjustified intrusion associated with the general warrant.” Id., at 402. 

179. Florida v. Bostick, 115 L.Ed.2d, at 404 (quoting from, United States v. Lewis, 728 F.Supp. 784, 788-789, rev’d, 921 F.2d 1294 (D.C. Cir. 1990)). 

180. Kamisar, The Fourth Amendment And its Exclusionary Rule, in The Champion, at 20 (September/October, 1991). 

181. Id. (Emphasis in original.) 

182. Kamisar, The Fourth Amendment And its Exclusionary Rule, in The Champion, at 22 (September/October, 1991) (emphasis in original). Professor LaFave offers a speech by Senator Robert F. Wagner of New York, made at his State’s 1938 Constitutional Convention, to underscore the same point: Finally, I have no fear that the exclusionary rule will handicap the detection or prosecution of crime. All the arguments that have been made on that score seem to me to be properly directed not against the exclusionary rule but against the substantive guarantee itself. The exclusion of evidence is only the sanction which makes the rule effective. It is the rule, not the sanction, which imposes limits on the operation of the police. If the rule is obeyed … there will be no illegally obtained evidence to be excluded by the operation of the sanction. It seems to me inconsistent to challenge the exclusionary rule on the ground that it will hamper the police, while making no challenge to the fundamental rules to which the police are required to conform. If those rules … are sound, there is no reason why they should be violated or why a prosecuting attorney should seek to avail himself of the fruits of their violation.

1 LaFave, Search and Seizure: A Treatise on the Fourth Amendment22 (2d ed. 1987). 

183. U.S. Constitution, Amendment I. 

184. Employment Division, Oregon Department of Human Resources v. Smith, 110 S. Ct. 1595 (1990). 

185. 374 U.S. 398, 83 S.Ct. 1790, 10 L.Ed.2d 965 (1963). 

186. 110 S.Ct. at 1603. 

187. Id. at 1600. 

188. Id. at 1605. 

189. Id.

190. 110 S.Ct., at 1606. 

191. Id. at 1605. (Emphasis added.) 

192. 110 S.Ct. at 1606 (O’Connor, J., concurring in the judgment). Justice O’Connor, though condemning the majority’s abandonment of the Sherbert test, nevertheless reached the same result (a very close question, she concluded) in applying it to the facts presented. Justices Brennan, Marshall, and Blackmun concurred in Justice O’Connor’s call for continued employment of the balancing test, but would have affirmed the judgment below, holding that the government had not met its burden of proving a compelling state interest justifying its refusal to grant the employees the religious exemption they claimed. See id. at 1615ff. (opinion of Blackmun, J., joined by Brennan, J., and Marshall, J., dissenting). 

193. Id., at 1612. 

194. 110 S.Ct., at 1621-22 (Blackmun, J., dissenting). 

195. 110 S.Ct., at 1617 (Blackmun, J., dissenting). 

196. Id., at 1616. 

197. The Supreme Court, 1989 Term, 104 Harv. L. Rev. 129, 208-209. 

198. G. Buxbaum, Note: Ingestion of Illegal Drugs for Religious Purposes is not Protected by the Constitution, 21 Seton Hall L. Rev. 111, 133 (1990). 

199. The Smith test, another critic has written, “would authorize the punishment of a wide variety of religious practices, such as the use of sacramental wine, the sale or consumption of kosher food, and ritual circumcision.” The Supreme Court, 1989 Term,104 Harv. L. Rev. 129, 201-202. Still another article posits a similar view: “It is difficult to envision that the Court would have decided Smith in the same manner if the religious celebration at issue was a Catholic or Protestant communion using sacramental wine.” R. Klieman & J. Thomas, Amendment I: Religion, The Champion 19, 25 (August 1991). 

200. U.S. CONST. amend. VI. 

201. 109 S.Ct. 2696 (1989). 

202. 109 S.Ct. 2657 (1989). Justice Byron White wrote the opinions for the majority in bothCaplin & Drysdale and Monsanto. 

203. The pretrial freezing of assets in Monsanto, was by far the most controversial aspect of the cases, an issue which did not arise in Caplin & Drysdale, which presented itself as a petition by the defendant’s attorneys, after the defendant had pled guilty and agreed to forfeiture under the statute, that their fees be exempted from the final forfeiture order. The majority held that a pretrial order could only be entered under the statute “based on a finding probable cause to believe that the assets are forfeitable.” United States v. Monsanto, 109 S.Ct., at 2666. Without reaching the question of what, if any, prior hearing might be requisite, id., at n.10, it concluded that the probable cause requirement, analogous to that applicable to other restraints on a defendant’s person or property, was sufficient to insulate the proceedings from the claim that they “arbitrarily” interfered with a defendant’s “fair opportunity,” during the pretrial stage, to retain counsel. Id. at 2666-2667. The dissent found this reasoning unpersuasive: [T]he majority’s analogy to permissible pretrial restraints [must] fail. The Act gives the Government the right to seek a restraining order solely on the basis of the indictment, which signifies that there has been a finding of probable cause to believe that the assets are tainted. When a defendant otherwise is incarcerated before trial, in contrast, the restraint cannot be justified by the fact of the indictment alone. In addition, there must be a showing that other alternatives will not “reasonably assure the appearance of the person and the safety of any other person and the community.” 18 U.S.C. 3142(e)(1) (1982 ed., Supp. V). No equivalent individualized showing that the defendant will likely dissipate his assets or fraudulently transfer them to third parties is necessary under the majority’s reading of 853(e)(1). Furthermore, the potential danger resulting from the failure to restrain assets differs in kind and severity from the danger faced by the public when a defendant who is believed to be violent remains at large before trial.

109 S.Ct., at 2677 (Blackmun, J., dissenting). 

204. The closest reference to this issue is a single comment in the House Report: “Nothing in this section is intended to interfere with a person’s Sixth Amendment right to counsel,” which the majority deemed to be “nothing more than an exhortation for the courts to tread carefully in this delicate area,” United States v. Monsanto, 109 S.Ct., at 2662, n.8, an admonition which the dissent protested the majority failed to heed. 109 S.Ct., at 2668 (Blackmun, J., dissenting). 

205. Caplin & Drysdale, supra, 109 S.Ct., at 2655. 

206. Id. According to the dissent, “The notion that the Government has a legitimate interest in depriving criminals”&emdash;before they are convicted&emdash;”of economic power, even so far as that power is used to retain counsel of choice” is more than just “somewhat unsettling,” as the majority suggests. That notion is constitutionally suspect, and&emdash;equally important for present purposes&emdash;completely foreign to Congress’ stated goals. The purpose of the … provision is to assure that assets proved at trial to be the product of criminal activity cannot be channeled into further criminal activity&emdash;not to strip defendants of their assets on no more than a showing of probable cause that they are “tainted.”

109 S.Ct. 2667, 2670 (Blackmun, J., dissenting). 

207. Id.

208. Id., quoting from In re Forfeiture Hearing as to Caplin and Drysdale, Chartered, 837 F.2d 637, 649 (4th Cir., en banc, 1988). 

209. For a comprehensive analysis of the historical underpinnings of the right to counsel in general, and the fee forfeiture cases in particular, see L. Fulton, The Right to Counsel Clause of the Sixth Amendment, in 26 American Criminal Law Review 1599, and at 1610-1613 (Spring 1989). For a sharply critical analysis of the fee forfeiture decisions and of the Court’s recent right to counsel jurisprudence, see Silber, supra n.26. 

210. 109 S.Ct. 2667, 2672 (Blackmun, J., joined by Brennan, J., Marshall, J., and Stevens, J., dissenting). 

211. Id.

212. Id., at 2667. 

213. Silber, supra n.26, at 35. 

214. 109 S.Ct., at 2674 (Blackmun, J., dissenting). 

215. Id., at 2676. 

216. In Wheat v. United States, 108 S.Ct. 1692 (1988), the Court dealt another severe blow to the private criminal defense bar by upholding an order by a trial court, on the motion of the government, to disqualify a drug conspiracy defendant’s privately retained counsel on the basis of a potential conflict of interest because the attorney had already represented two codefendants. Ironically, the majority in Wheat affirmed the trial court’s authority to disqualify defense counsel over the clients’ objection “not only by a demonstration of actual conflict but by a showing of a serious potential for conflict,” id., at 1700, by citing the independent Sixth Amendment interest of the court in ensuring a fair trial and effective, ethical representation by counsel. Id., at 1697.

Another irony is that the Court in Wheat cited its earlier decision in Strickland v. Washington, 466 U.S. 668 (1984) to support its societal interest argument. In Strickland, over vigorous dissent, the Court, in an opinion by Justice Sandra Day O’Connor adopted a stringent standard for evaluating claims of ineffective assistance of counsel, requiring not only that the defendant must establish that the attorney’s representation fell below an objective standard of reasonable competence, id., at 687, but that except for the lawyer’s ineffectiveness, there is a reasonable likelihood that the result would have been different. Ibid. Justice Marshall’s dissent countered that competent, effective assistance is essential to a fair trial, and that, accordingly, prejudice must always be presumed and can never be deemed harmless when such representation is lacking. Id., at 711-712 (Marshall, J., dissenting). 

217. U.S. CONST. amend. VIII. 

218. 111 S.Ct. 2680 (1991). There was no majority opinion. Justice Scalia announced the judgment in a broadly-based opinion re-examining the scope and meaning of the Eighth Amendment itself, joined (for the most part) only by the Chief Justice. Justice Kennedy wrote separately on behalf of himself, Justice O’Connor and Justice Souter, concurring in the result, but disagreeing with Justice Scalia’s Eighth Amendment analysis. Justices White, Stevens, Marshall and Blackmun dissented in three separate opinions. 

219. Id. at 2684 (opinion of Scalia, J., joined by Rehnquist, C.J., announcing the judgment). 

220. Of the other 49 states, only Alabama provides for a mandatory sentence of life imprisonment without parole for a first offender, and then only when a defendant is convicted of possessing ten kilograms or more of cocaine. For the amount possessed by Harmelin, Alabama law would have subjected him to a mandatory minimum sentence of no more than 5 years in prison. Even under the new, and rather severe, Federal Sentencing Guidelines, with all applicable enhancements, Harmelin would have received a sentence of approximately ten years. Id. at 2718 (White, J., dissenting). 

221. Id. at 2699 (opinion of Scalia, J., announcing the judgment). 

222. Id. at 2698. 

223. See id. at 2684-2696. 

224. Id. at 2701. 

225. Id. at 2699-2700. 

226. Id.

227. 463 U.S. 277 (1983). In Solem, the Court had held that a sentence of life imprisonment without possibility of parole was an impermissible punishment, grossly disproportionate to the offense of recidivism based on conviction of seven non-violent felonies. Cf. Rummel v. Estelle, 445 U.S. 263 (1980) (finding sentence of life imprisonment for recidivism based upon three prior felony convictions not to be unconstitutionally excessive). 

228. Id. at 2686. 

229. Justices Kennedy, O’Connor and Souter felt no need to respond to Justice Scalia’s elaborate historical arguments, but relied instead on familiar principles of judicial restraint in recognizing that “the Cruel and Unusual Punishments Clause encompasses a narrow proportionality principle,”id. at 2702, “which also applies to noncapital sentences.” Id. at 2703. Though concurring in the result, Justice Kennedy explained: I write this separate opinion because my approach to the Eighth Amendment proportionality analysis differs from Justice SCALIA’s. Regardless of whether Justice SCALIA or the dissent has the best of the historical argument …, stare decisis counsels our adherence to the narrow proportionality principle that has existed in our Eighth Amendment jurisprudence for 80 years.

Id. at 2702 (citations omitted). 

230. 111 S.Ct. at 2711 (White, J., dissenting). 

231. Compare the failed attempt to modify the prevailing Cruel and Unusual Punishment Clause standard in Harmelin with Justice Scalia’s success, over blistering dissent, in obtaining a majority to narrow the scope of the Free Exercise Clause in Employment Division v. Smith, supra, ante at 65ff. 

232. Justice White even discerned in Justice Scalia’s opinion, an oblique attack against the fundamental premises of the doctrine of judicial review itself: “[T]he suggestion that a legislatively mandated punishment is necessarily ‘legal’ is the antithesis of the principles established in Marbury v. Madison, 1 Cranch 137, 2 L.Ed. 60 (1803), for ‘[i]t is emphatically the province and duty of the judicial department to say what the law is,” id. a, at 177, and to determine whether a legislative enactment is consistent with the Constitution.” 111 S.Ct. at 2713 (White, J., dissenting). 

233. Just prior to his retirement, Justice Marshall rebuked the new majority: “Power, not reason, is the new currency of this Court’s decisionmaking…. Neither the law nor the facts … underwent any change in the last four years. Only the personnel of this Court did.” Payne v. Tennessee, 111 S.Ct. 2597, 2619 (Marshall, J., dissenting). Justice Stevens’ separate opinion, joined by Justice Blackmun, echoed Justice Marshall’s denunciation of “the majority’s trivialization of the doctrine of stare decisis.” Id. at 2625 (Stevens, J., dissenting). 

234. Id. at 2702. 

235. Id. at 2703. 

236. Id. at 2706. 

237. Id. at 2706. 

238. See id. at 2716-2717 (White, J., dissenting). 

239. Harmelin, supra, at 2707. 

240. 445 U.S. 263, 296, n.12 (Powell, J., dissenting). In Rummel, the Court had applied a proportionality analysis, id. at 271-274, and n.11, in refusing to strike down the same sentence as Harmelin received under a state recidivist statute based on three underlying felony convictions. It is somewhat ironic that Justice Kennedy should have chosen to cite Justice Powell’s dissenting opinion in Rummel to support his decision to deny an arguably much stronger claim of disproportionality (e.g., involving not a recidivist, but a first offender) presented in Harmelin. 

241. Harmelin, supra, 111 S.Ct. at 2706 (Kennedy, J., concurring in the result) (citation omitted). 

242. See id. at 2717-2718 (White, J., dissenting). 

243. “The State has conceded that it chose not to prosecute Harmelin under the statute prohibiting possession with intent to deliver, because it was ‘not necessary and not prudent to make it more difficult for us to win a prosecution.’ Tr. of Oral Arg. 30-31.” 111 S.Ct. at 2718. 

244. Id. at 2718. 

245. Justice Kennedy also tried to justify the imposition of the admittedly “severe and unforgiving” penalty upon Harmelin by pointing to evidence which he characterized as the “trappings of a drug trafficker.” 111 S.Ct. at 2709. But, as Justice White explained in his dissent, “None of this information, however, was relevant to a prosecution under the possession statute … because the sentence is statutorily mandated for mere possession…. It would likewise be inappropriate to consider petitioner’s characteristics in assessing the constitutionality of the [mandatory] penalty.” Id. at 2718 (White, J., dissenting). 

246. Id. at 2718. The dissent points out that a far different question would be presented if Harmelin had indeed been convicted of drug trafficking, rather than mere possession. Id. at 2717 n.5 (White, J., dissenting). 

247. Turner v. United States, 396 U.S. 398, 427 (Black, J., dissenting) (quoted in Harmelin v. Michigan, 111 S.Ct. at 2717). “That,” chided Justice White, with unusual bluntness, “is precisely the course Justice KENNEDY advocates here.” Id.

248. Ordinance No. 3450, adopted April 24, 1990, made it a class 1 misdemeanor (punishable under Virginia law by up to 12 months in jail and/or a fine of no more than $2,500) to loiter in a public place while engaging in seven enumerated behaviors which were equated with an intention to engage in illegal drug-related transactions. In response to protests from civil rights and civil liberties organizations, several offensive provisions were corrected or eliminated by an amended Ordinance, No. 3471, adopted June 16, 1990. References to the “Ordinance” are to the amended version, Ordinance No. 3471. 

249. The “manifest” circumstances comprise: (1) While remaining within the same “general location” (defined as a public place within a circle with a radius of 750 feet) for 15 minutes or more; (2) having two or more “face-to-face contacts” with other individuals. A suspicious “contact” is defined in the Ordinance as one which: (1) involves one or more different individuals; (2) lasts no more than two minutes; (3) includes actions or movements “consistent with” the exchange of money or other small objects; (4) involves behavior “consistent with” an effort to conceal an exchanged object; and (5) terminates “shortly” after the completion of the apparent exchange. Ordinance No. 3471. In the ensuing lawsuit over the validity of the ordinance, the City and its amicus curiae characterized these as the “seven enumerated behaviors” or “circumstances.” It is perhaps more accurate to describe the Ordinance’s reach as consisting oftwo behaviors (the two contacts), each including five characteristics (same “general location”; different individuals; no more than two minutes in duration; apparent exchange of small object[s]; apparent effort to conceal). The requirement that the contact terminate “shortly” after the completion of the apparent exchange deserves no independent significance, since it cannot fairly be distinguished from the criterion that the contact in its entirety must last no longer than two minutes. 

250. Id., Sections (a)(3)(c) & (a)(3)(d). 

251. Id., Section (a)(3)(e). 

252. Id., Section (a). The City and its amici argued that the Ordinance did not equate commission of the “seven behaviors” with the proscribed intent to engage in drug dealing, but rather that both the “seven circumstances” and specific intent were required to constitute the offense. See generally, City’s Memorandum at 14-16, 36-39; Joint Memorandum at 3. Northern Virginia Chapter, A.C.L.U. v. Alexandria, 747 F.Supp. 324 (1990). The district court, looking to the “express terms of the ordinance,” 747 F.Supp. at __, found, however that “[t]he separate specific intent requirement is nullified by the provision that deems engaging in the enumerated behaviors as manifesting an unlawful purpose.” Id. at 328. [E]ngaging in the seven enumerated circumstances constitutes purpose to engage in illicit drug-related transactions. Unlawful intent may be derived from the mere occurrence of the seven enumerated circumstances. Any person engaging in conduct meeting the specified circumstances is deemed to possess the requisite intent to engage in unlawful drug transactions, regardless of actual purpose.


253. Memorandum in Support of Defendant’s Motion for Judgment on the Pleadings or, in the Alternative, for Summary Judgment(hereafter, City’s Memorandum) at 2. 

254. City’s Memorandum at 3-5. According to the City: “[T]he seven circumstances in the Ordinance are narrowly drawn to reflect behavior which is characteristic of street level drug transactions … [The standard] will not be met by any individuals who are present in the public places of the city for a genuinely innocent purpose. Id. at 43. See also, Joint Memorandum at 8-9: “[P]roof that the person had engaged in the conduct described in the seven circumstances enumerated in the ordinance would lead the candid mind to conclude that the person had deliberately engaged in illicit drug trafficking ….” 

255. Joint Memorandum of Defendant City of Alexandria and Amici Curiae (hereinafter Joint Memorandum) at 7. 

256. See Memorandum Opinion at 10-12. 

257. Memorandum Opinion at 11. 

258. Id. at 11-12. 

259. Defenders of the City’s ordinance would perhaps eschew such a purpose. In court, the City unsuccessfully argued that the ordinance should be construed as requiring proof of a specific intent to distribute drugs, in addition to evidence of the “seven enumerated behaviors,” thus eliminating any vagueness or overbreadth defect. The Plaintiffs vehemently criticized this attempted “saving construction” for the Ordinance, Plaintiffs’ Reply Memorandum at 4, and the district court soundly rejected it as contrary to the express terms of the enactment. Memorandum Opinion at 10. It is fairly obvious, moreover, that if the Ordinance were indeed to be construed as the City suggested, it would be useless. This is because conduct evincing a specific intent to traffic in drugs, even without regard to the enumerated suspicious behaviors, would also be sufficient to justify the arrest and conviction of a suspect for familiar crimes already in the statute books: either possession with intent to distribute, or actual distribution of, illegal drugs; felonies carrying penalties of as much as 40 years in prison. If the true purpose of the loitering measure was not to provide a shortcut method for arrest and conviction of suspected drug dealers, then what, one might well ask, was its purpose? And what was all the fuss and fanfare about?

260. Indeed, the aftermath of the invalidation of the ordinance is instructive on this point. A new ordinance was adopted expressly adopting the City’s proffered construction of the original ordinance, plainly requiring proof of an intent to engage in drug trafficking, without reference to the so-called “manifest” behaviors. With the shortcut provisions eliminated, the law fell into immediate and utter disuse. According to the Deputy Commonwealth’s Attorney for Alexandria, no arrest has yet been made under the sanitized ordinance, because “if police have probable cause under the ordinance, they also have probable cause for the felony. They might as well take the felony.” Conversation with Alexandria Deputy Commonwealth’s Attorney, August 22, 1991. 

261. See discussion regarding the Fourth Amendment, ante, at pp. 51 et seq. 

262. National Treasury Employees’ Union v. Von Raab, 109 S.Ct. 1384, 1398 (1989) (Scalia, J., dissenting). 

263. Even conviction of the guilty, as important as it is to our common welfare and security, must, to paraphrase the language of Blackburn v. Alabama, 361 U.S. 199, 206-207 (1960), sometimes be subordinated to the “strongly felt attitude of our society that important human values are sacrificed where an agency of the government, in the course of securing a conviction,” disregards the fundamental limitations on its powers which the Framers spelled out in the Bill of Rights. 

264. These words come from a 1985 speech, Contemporary Ratification, delivered by former Justice William Brennan. Quoted in S. France, First Principles, ABA Journal at 40 (August 1991). 

265. Heywood Broun, “The Miracle of Debs,” New York World, Oct. 23, 1926. 

266. 12 The Papers of Thomas Jefferson 571 (Boyd ed. 1951) (letter of Feb. 7, 1788 from Jefferson to Alexander Donald). 

267. McCulloch v. Maryland, 4 Wheat. 316 (1819) (emphasis in original). 

268. No one knows how far the pendulum will swing, how deeply the Rehnquist Court will cut into the core values of the Bill of Rights. Perhaps we are seeing nothing more than an adjustment based upon a disagreement over the outer margins of our constitutional liberties. Let us hope that is what is at play, and not a more fundamental aversion to the Framers’ forceful insistence on protecting the rights of the accused. For the courts are truly the last bastion of defense for the Bill of Rights. And they cannot perform their essential role in preserving our fragile liberties if they allow themselves to become cheerleaders, dancing along the sidelines extolling the urgency of the drug war, while our delicate rights, of inestimable but intangible value, are slowly beaten into the turf. 

269. L. Hand, The Spirit of Liberty 190. 

270. The quotations from Chief Justice Marshall, and the wonderful phrase describing the ongoing process of making the constitution meaningful in resolving thousands of petty disputes which daily come before the judicial, legislative, and executive branches of government, state and federal, are gratefully borrowed from F. Friendly & M. Elliott, The Constitution: That Delicate Balancevii-ix (1984). Thomas Jefferson was also a forceful exponent of the edifying function of a Bill of Rights, which, he argued, even if “not absolutely efficacious under all circumstances,” would, in a people “educated in republicanism” by virtue of such an instrument, be “of great potency always” in combatting the forces of tyranny. 1 Documentary History, at 621 (letter of March 15, 1789 from Jefferson to Madison).