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Our Endangered Bill of Rights

December 15, 1991, marked the 200th anniversary of the final ratification of the Bill of Rights, the single most familiar, admired, and imitated invention of American political culture. Of course, the ideals of individual freedom, democratic self-government, and equal justice under law long predated the American Revolution. But, until 1776, no people had constructed a form of government expressly designed to achieve these lofty, but abstract, ideals, and to translate them into practical laws for governing a nation. As Americans, we now watch with pride as other peoples and other nations, in lands all across the globe, struggle courageously to win for themselves and for their children the blessings of American-style freedom and democracy; part of an invaluable birthright which many of us now largely take for granted. With the Supreme Court of an earlier time, we feel secure in the belief that, “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.”

But, is this really so? In times of hardship or crisis, our laws, our liberties, our shared ideals, and our tolerance for the rights of others are sorely tested. Few Americans, certainly, would openly challenge the wisdom or necessity of any of the guarantees enumerated in the first ten amendments to our Constitution. Like the Bible itself, our Constitution, with its famous Bill of Rights, is easy to worship in the abstract. But, also as with the scriptures themselves, it is not always so simple to keep faith with a Bill of Rights in the rough and tumble, sometimes frightening, sometimes cruel real world in which we actually have to go about the business of our daily lives. As Will Rogers once remarked, “Liberty don’t work as good in practice as it does in Speech.”

Our Bill of Rights was intended to be much more than just a symbol of our high aspirations and ideals; more than just a glorified totem made out of nice-sounding words to which we dutifully pay our occasional respects. Our Bill of Rights is also an ongoing burden, a difficult and sometimes painful challenge to our commitment to freedom, passed on from one generation to the next. To pass this test, to preserve our proud heritage, each generation of Americans is called upon to discover the lessons of liberty anew, and to reaffirm our commitment to what James Madison, the “father” of the Bill of Rights, was immodest enough to call “the Great Rights of Mankind.” To see the sometimes precarious state of our rights, to watch the constitutional tosses and turns of the courts in interpreting those rights, is truly to appreciate the verity that, “Eternal vigilance is the price of liberty.”

Under the strains of civil strife, of war, of racial tensions, and of economic turmoil, our liberties are always placed at risk. Whether it is the roundup, stigmatization, and imprisonment of loyal Japanese-Americans, without trial, during the Second World War, Abraham Lincoln’s suspension of the writ of habeas corpus for the duration of the Civil War, the illegal activities of the “Plumbers” against Vietnam War dissenters, or Senator Joe McCarthy’s witch-hunt for communists at the height of the Cold War, war is always hell on the Bill of Rights.

Today, of course, the Cold War has come to an end, and for the first time in 50 years, the United States is without a major military foe. Yet, we find ourselves, nevertheless, in the midst of a different kind of war: a war which poses no less of a threat to our fundamental freedoms than did the shooting wars of the past. Now, we are locked in mortal combat with an epidemic of drug abuse and drug-related crime. These enemies have been met with a much-heralded “war on drugs” by our national, state and local governments. This war, like all wars, arouses almost irresistible temptations for fast, simple and arbitrary solutions. The passions generated by the conflict place enormous pressures upon our legal, political and cultural institutions, pressures which threaten to drown out the voices of self-restraint and of fidelity to the rights of the individual.

Ultimately, the drug war threatens the very survival of our Bill of Rights as a meaningful restraint upon the arbitrary powers of government. 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. Our public health resources have been ravaged by the relentless demands placed on them by drug abuse. The social, economic, and legal ills which have accompanied the drug scourge have sharply aggravated the deep racial and economic fragmentation of our people—vast, jagged rifts in our social fabric, as illustrated in gut-wrenching fashion by the images we have all seen of the Rodney King incident and the rioting that followed the acquittal of his accused assailants.

The incidence of serious crimes continues to spiral out of control. There were more than 34 million serious “criminal victimizations” reported in 1990; over 6 million of them involving violence; countless of them drug-related. The number of unreported crimes, particularly those growing out of drug transactions, can only be guessed at. Drugs appear to play a significant role in connection with non-drug offenses as well. As many as 80 percent of those arrested for serious crimes test positive for illegal drugs, frequently cocaine. 1 out of every 3 violent crime victims perceives their assailants to be under the influence of drugs or alcohol.

“The public has looked to the criminal justice system for solutions. The reaction … has been an unprecedented effort to win the drug war by getting tough on drug crime.”

Outraged by this blight upon our nation’s health, by the epidemic of drug-related crime, 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—the legislatures and the executives—has been an unprecedented effort to win the drug war by getting tough on drug crime. The resulting torrent of drug arrests, prosecutions, and convictions has placed extraordinary demands on every segment of the criminal justice system, stretching to the very limit the already overtaxed and underfunded resources available to our police, prosecutors, public defenders, courts, and correctional institutions.

There has been a staggering increase in criminal prosecutions, especially of drug offenses. During the last decade, while the incidence of proceedings against other criminals remained relatively unchanged, the number of drug prosecutions more than tripled. The annual budget of the Department of Justice has now surpassed $11 billion, a 69% increase since 1989. In 1990, the states and localities spent $27.4 billion and $36.9 billion, respectively, on crime and justice. The direct cost of enforcement of the drug laws, alone, now exceeds 10 billion dollars. The U.S. Customs Service seizes nearly $10 billion worth of drugs every year, yet this is just the tip of the iceberg.

The strain of this drug war effort has led to overcrowded dockets and teeming jails; it has diluted law enforcement and judicial efforts to deal with other, major criminal concerns; and it has aggravated the racial and economic tensions still prevalent in our society.

The courts have indeed “gotten tough” on drug crime. More of those convicted of crimes, particularly drug crimes, have been receiving prison sentences instead of probation, and the sentences themselves have become much longer. Overall, Federal courts sentenced some 29,430 offenders to prison in 1990; nearly half of them drug offenders. This was more than double the number imprisoned just a decade earlier. For drug crimes, the numbers are even more dramatic. 86% of convicted Federal drug offenders now suffer incarceration. In 1990, an all-time high of 13,754 Federal drug defendants were sent to prison, nearly three times (274%) as many as the number who served time in 1980. By comparison, the number of violent criminals sent to prison rose just 13 percent during the same decade. Under new, tougher, mandatory sentencing guidelines, the average federal drug sentence has risen from 5 years in 1986 to nearly 7 years in 1990. With parole sharply curtailed or eliminated from the federal system, actual time served for drug violations has been increasing markedly as well, to a record high of almost 30 months as of 1990.

“More than 1.2 million Americans behind bars … another 3.2 million probationers and parolees.”

As a result, already overburdened correctional resources have been stretched beyond their limits. Overall, the number of incarcerated Americans has tripled since the late 1960s, to the point where our prisons are now seriously overcrowded. American prisons now house more than 800,000 inmates, and the total is rising by 5 to 10 percent each year. When local jail populations are counted as well, the total increases by half: more than 1.2 million Americans behind bars. A very large proportion of these inmates are in custody as a direct result of the clampdown on drug crime. A recent study found that 33% of all women in jails are there for drug offenses, up drastically from only 13% in 1983. Add to these numbers another 3.2 million probationers and parolees.

Nevertheless, despite all of this strong medicine, there has been no discernible decline in the availability and use of narcotics on our streets and in our schools, or in the crime which is associated with drug trafficking. And when these intensive and costly law enforcement efforts have failed to eliminate, or even to control, the drug problem, the press and public have directed their disappointment and anger at the criminal justice system.

“more than 90% of serious crimes never even reach our criminal justice system”

What the publicemdash;and, even more disappointingly, the popular press—does not seem to know, however, is that the vast majority of serious crimes—more than 90% of them, in fact—never even reach the courts. Of those 34 million serious victimizations reported in 1990, only about 3 million—less than 10 percent—ever resulted in an arrest or formal charge. With so many crimes unsolved and unprosecuted crimes, and with law enforcement and judicial resources already stretched beyond the breaking point, it is essential to understand that the courts are simply not capable of eradicating or even controlling crime (and drug crime in particular). Crime control and crime prevention are societal problems, which the criminal justice system can have only a limited role in addressing. No less a card-carrying conservative than George F. Will recently (belatedly) acknowledged, in a syndicated column, that violent crime in America is, and ought to be treated as, a public health problem.
Whether the emphasis on criminal prosecution as the primary weapon in the drug war has, on balance, produced desirable results sufficient to justify its tangible and intangible costs are still an open—and certainly a debatable—question. Unfortunately, one result of this strategy has become unmistakable: the shrill rhetoric and impassioned advocacy accompanying this war on drugs have led to an increasing climate—in the public mind, in the popular press, and even in the courts themselves—of outright hostility toward our criminal justice system in general, and toward the individual protections safeguarded in our Bill of Rights, in particular. A recent public opinion survey reveals this chilling result: 62% of respondents would be willing to give up some of their constitutional rights in order to stop illegal drug trafficking.

“The shrill rhetoric accompanying this war has led to an increasing climate—even in the courts themselves—of outright hostility toward the historic protections safeguarded in our Bill of Rights.”

Pressured by the public’s understandable impatience to “win” the war on crime and by sensationalized media coverage of criminal justice issues, and frustrated by the real difficulties of winning such a war through a criminal justice system not equipped for the task, 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. The Supreme Court has, for nearly two decades now, been dominated by a solid “law and order” majority on criminal justice issues. In recent years, the Court has shown itself increasingly willing to overrule or severely limit established protections of the rights of the accused. In the name of judicial restraint, the courts have increasingly left to the untender mercies of the popular branches of government (the Congress and state legislatures) the very task which the Founders believed could only be achieved by an independent judiciary, appointed for life, and armed with the teachings of a Bill of Rights: that of balancing the fundamental rights of the individual against the interests of the majority.

“Constitutional restrictions, such as the exclusionary rule and Miranda, do not significantly handicap police and prosecutors…. [T]he exclusionary rule achieves a significant measure of police compliance with [constitutional] restrictions. [T]he cumulative loss of convictions because of the exclusionary rule ranged between only 0.6% and 2.35% of all adult felony arrests.”

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 Bill of Rights, 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.” 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. Its findings debunk the popular complaints blaming the persistence of our crime and drug problems on an undue emphasis on the rights of criminals:
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… [T]he exclusionary rule achieves a significant measure of police compliance with Fourth Amendment search and seizure restrictions. Moreover, 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.
In fact, the Committee found that the cumulative loss of convictions because of the application of the exclusionary rule ranged between only 0.6% and 2.35% of all adult felony arrests.

“The genius of our Bill of Rights was in its promise that the prerogatives of the individual conscience would not invariably have to yield to the collective will of the majority. Some personal liberties are so fundamental that they must be honored even when they get in the way of the concerns of the nation.”

Until the American Revolution, no nation had ever made permanent, specific, and enforceable individual liberties a part of its organic law. The genius of our Bill of Rights was in its underlying promise that when the interests of the government collide with the freedom of the citizen, the prerogatives of the individual conscience would not invariably have to yield to the collective will of the majority. In other words, some attributes of personal liberty are so fundamental, the Founders insisted, that they must be honored even when they get in the way of, or create difficulties for, the concerns of the society at large. Much of the 1789 Constitution, as well as of the Bill of Rights which the states demanded in return for ratification of the original compact, was designed to guarantee those vital rights by placing specific and enforceable curbs on the legislature, and thus, ultimately, on the will of the people themselves.

The Founders created a legal and political infrastructure to protect and immunize those liberties. They knew from long and painful experience that without strong, permanent protection, traditional rights could be swept away by the shifting tides of political change or in the stampede precipitated by the crisis of the moment. They gave the immunities of the individual the force of law so that courts could rise above the mentality of the herd, and could act as the implacable guardian of the most cherished liberties. And they expressed the guarantees of those liberties in broad, emphatic terms in a written constitution in order to allow them to be adapted over the years to protect us from new, unanticipated dangers of tyranny; from new, unimagined forms of oppression whether imposed by a single despot, or an unchecked and unmindful majority.

“The people of the several states would not accept the Constitution of 1789 without a comprehensive charter of individual liberties…. The vast majority of these most cherished of our liberties operate to limit the scope and process of criminal prosecutions.”

In 1787, the Constitutional Convention adopted the main body of the Constitution, to replace the moribund Articles of Confederation. An intensive political struggle was then waged in each of the several states which had to ratify the new Constitution before it would take effect. Those who favored a strong federal government, later called Federalists, fought to have the compact ratified. Others, such as Virginians George Mason and Patrick Henry, opposed ratification based upon their intense distrust of concentrated central government. The Anti-Federalists, spearheaded by Mason, stirred up considerable resistance to the Constitution in most of the states, based on the argument that it lacked a “bill of rights,” such as those which had been incorporated into the constitutions of most of the states adopted following the Declaration of Independence.

At first, the Federalists, including James Madison, argued against the need for a Bill of Rights in the federal Constitution. It soon became apparent, however, that the people of the several states would not accept the Constitution without such a comprehensive charter of individual liberties. Madison, influenced by the arguments of his fellow Virginian Thomas Jefferson, eventually saw that a Bill of Rights was a necessity. The Constitution won ratification in several states only upon the explicit condition, agreed to by the Federalists, that such a Bill of Rights would be added to it immediately after it went into effect.

Following his election to the first House of Representatives, Madison went about the task of fulfilling the pledge to incorporate the “Great Rights of Mankind” into the Constitution in the form of amendments. He canvassed the rights enumerated in the several state constitutions and pared them down to those widely-accepted few which he found to be widely agreed to be the most essential to liberty. Ten of his twelve proposed amendments were approved by Congress and ratified by the states, ending with Virginia in December 1791, thus becoming the Bill of Rights. (An eleventh of Madison’s proposed amendments, limiting Congress’s right to vote itself a pay raise, finally won ratification by a sufficient number of states 201 years later, in 1992.)

It was the Founders—the Congress and state legislatures of the 1790s, not the “Warren Court” of the 1950s and 1960s as some would have us believe—who chose which guarantees were of sufficient importance to be included in our national Bill of Rights. Those choices, the historical evidence makes clear, were made largely by consensus, by selecting provisions which had already won broad acceptance in the constitutions of the several states. There was little or no dissent as to the merits of each particular provision, and there exists almost no record of any opposition to them in the state-by-state ratification process which followed. The lists of the “Great Rights of Mankind,” largely as selected and phrased by Madison, were a subject of nearly unanimous agreement in the fledgling republic.

For those who take the trouble to read that Bill of Rights, there is a remarkable discovery in store: The vast majority of these most cherished of our liberties operate primarily, if not exclusively, to limit the scope and process of criminal prosecutions! Of the 25 specific rights spelled out in the first ten amendments, at least 20, a remarkable 80 percent, involve rights which were chiefly aimed at, and have been most often applied in, limiting the scope or regulating the process of the criminal justice system. In fact, more than half of the provisions in our Bill of Rights operate solely to limit the powers of the government as criminal prosecutor, while only two such guarantees always arise outside the criminal justice process.

It was the government—the majority—chiefly in its role as public prosecutor, from which those early Americans understood the need for constitutional protection. It was from government’s awesome powers of prosecution that the Founders saw fit to guarantee the accused clear-cut privileges and immunities. It was the criminal suspect, above all, whom those who founded our Nation and framed our Constitution wanted to protect from overreaching and oppressive government conduct.

“Precisely because the need for action against drugs is manifest, the need for vigilance is great. History teaches that grave threats to liberty often come in times of urgency, when constitutional rights seem too extravagant to endure.”

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. It is the very pressure—albeit, popular pressure—which is generated in support of such nostrums, which makes them so dangerous to our liberties. Justice Thurgood Marshall, before his 1991 retirement, wrote in dissent:
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 and the Red Scare and McCarthy-Era internal subversion cases 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.
Even more alarming than the prospect of a narrowing of particular rights protected by the first ten Amendments 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 the government’s police powers are subject to substantive, enforceable limitations; limitations which cannot be transgressed no matter how grievous the crime nor how apparently guilty the accused. The integrity of the process itself, and the importance of the rights at stake, means that even the authority to enforce the criminal laws must sometimes bend when necessary to vindicate the ultimate purpose of ensuring our citizens’ inalienable rights.
The perceived imperatives of the war against drugs may be blinding us to these elemental truths. Shortly before his retirement from the Supreme Court, Justice Thurgood Marshall, joined by Justice William Brennan (also now retired), protested what he decried as the majority’s continuing attack on the Fourth Amendment. “There is no drug exception to the Constitution,” Marshall protested. Unfortunately, there is growing evidence that such an exception not only is creeping into the Court’s search and seizure jurisprudence, but that the “drug war exception” may have much broader application: to the Bill of Rights as a whole. A brief look in our next newsletter at the practical dimension of several activist rulings by the Rehnquist Court may be enough to cause concern for our rights among even the strongest of “law and order” advocates.

“If the government uniformly adhered to the dictates of the Bill of Rights, no suppression of tainted evidence would ever be required, no reversal of a conviction would ever be necessary.”

Nowhere has the drug war taken a greater toll than it has on the Fourth Amendment, the guarantee which prohibits unreasonable searches and seizures, with its ever-controversial exclusionary rule. The Supreme Court has not yet jettisoned the exclusionary rule (which, was adopted and consistently applied in all federal prosecutions, not by the Warren Court of the 1960s, but by the White Court of 1914, and reaffirmed repeatedly by the Taft, Hughes, Stone and Vincent Courts from the 1920s through the 1950s. Among the rule’s staunchest supporters have been such judicial giants as Holmes, Brandeis, and Frankfurter). As many have pointed out, it is the Fourth Amendment—not its judicially-crafted exclusionary rule—which circumscribes the techniques which the government may use to search and seize its citizens and their property. If the government uniformly adhered to the dictates of the amendment, no suppression of tainted evidence would ever be required; yet, the police would have given up certain tools which the constitution forbids them to employ—tools like the rack, the screw, the general warrant, the arbitrary arrest—and the evidence which use of those tools might more effectively, if also more brutally, acquire. Moreover, the Supreme Court of the 1980s and 1990s has not been content to sharply circumscribed the application of the exclusionary rule itself; rather, it has also persistently weakened the scope and limited the sweep of the Fourth Amendment’s substantive guarantees.

For example, the Court has now held that when police act on a warrant which they have obtained on less than probable cause (the amount of evidence required by the express terms of the Fourth Amendment), the search will nevertheless be considered legal unless “bad faith” is proved. There are militant efforts to establish a similar “good faith” exception to the Fourth Amendment even where police do not bother to obtain a warrant. Particularly where the rights of minorities’ are involved, the Rodney King verdict illustrates how difficult it is to get an American judge or jury to make such a finding against a police officer.

An automobile passenger no longer has any legal recourse when police, indulging their slightest whim, arbitrarily decide to look through the property she has placed in the glove compartment or in a friend’s purse. John Q. Citizen, having reluctantly submitted to a police “request” to explore his home, car, briefcase, or luggage, now learns that—unless he can prove actual coercion—he has surrendered his constitutional rights, even if he did not understand that he had the right to say no. In fact, the “consent” exception to the Fourth Amendment has now grown fat enough to defeat our right to privacy even when that “consent” is obtained from someone who has no right to give it. Yes, a capricious and unfounded search of your home is now legal, the Supreme Court has decided, if based on the “permission” of someone who plausibly pretends to have the right to enter the premises.

Other examples of the loss of freedom of every citizen from unwarranted police intrusiveness abound: The “special needs” of public school discipline override the rights of the student whose locker is examined on the whim of a school principal, acting without any warrant or probable cause. A government bureaucrat who takes it upon himself to inspect the desks, files, and personal belongings of his subordinates is exempt from the Fourth Amendment’s warrant and probable cause requirements. Those on probation or parole—no matter how minor the original offense—must not only satisfy the terms of their sentences, they also forfeit the right to object whenever their compliance officer chooses to search their homes. If you are arrested, even for a traffic violation, all of the contents of your car—right down to the locked luggage in your trunk—are fair game for police inquisitiveness.

If you work for the Customs Service, or the railroad, or some other government agency, you can be compelled to give urine samples, under monitored conditions, even where there is no reasonable suspicion of individual drug use or misbehavior. Stories of cheerleading squads, school bands, or ordinary government office workers being directed to urinate on command for drug-screening purposes are becoming more and more common. Justice Scalia, who almost invariably sides with the government in Fourth Amendment cases, has felt constrained to warn: “I think it obvious 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.”

Even if there are no grounds whatsoever to believe that you are operating your vehicle improperly, you can now be compelled to stop by police at a mass sobriety checkpoint along the highway to be screened for drunk driving. You and your property may be searched and seized, without individualized suspicion, if you happen to be on the premises where someone is arrested. A much-cited 1979 decision was recently overruled by the Court in order to uphold the warrantless search of the contents of a locked suitcase located in the trunk of an automobile. Justice John Paul Stevens complained, “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.”

“Over the last dozen years, the Court has also embraced a host of intrusive weapons which have permitted government to explore at will, with no Fourth Amendment constraints whatsoever, areas which many, if not most, Americans would consider to be none of their business.”

Over the last dozen years, the Court has also embraced a host of intrusive weapons which have permitted government to explore at will, with no Fourth Amendment constraints whatsoever, areas which many law-abiding Americans would consider to be none of the government’s business. Travelers accosted within the confines of a bus by armed and uniformed police, and subjected to embarrassing requests for identification and search of their luggage, are informed by the courts, only after the fact that they gave up their rights by failing to protest out loud. An innocent bystander chased down by police—armed with real guns and a false hunch—will learn in court that when she dropped her wallet, address book, diary, or handbag in her flight, she lost her right to challenge the lack of justification for the police chase, or to protest the minute inspection of every personal thought or possession contained therein—no matter how arbitrary or even discriminatory the original hunch. According to the courts, it is “too much to believe that telephone subscribers … harbor any general expectation that the numbers they dial will remain secret,” from every government snoop who cares to obtain that information through the surreptitious, and warrantless, use of a “pen register” device. If government agents decide to use a trained police dog to sniff your suitcase, purse, luggage, automobile, or grocery bags, the Fourth Amendment simply does not apply: there has been no “search,” according to the High Court. In this same vein, the Court has ruled that the Fourth Amendment places no limits whatsoever on inquisitive authorities who are determined to learn about us by inspecting what we throw away, regardless of how personal, intimate, or revealing that refuse may be. According to the Court, Americans have no legitimate expectation of privacy—of freedom from arbitrary governmental scrutiny—in their trash cans. The Court has decided that a farmer’s fields have not been “searched” when officers cross over half a mile of his private property, climb over several barbed wire fences, and shine a flashlight into his barn on the merest suspicion that they might find something incriminating there. Likewise, whatever can be seen from the “friendly skies” is fair game as well. There are no constitutional limitations, says the Court, on the efforts of law enforcement agents to use technology (e.g., air surveillance to look down at us from above, infrared night-scopes to peer through our windows into darkened rooms, powerful telescopes to magnify all that can be seen from across the street, remote listening devices to determine what we are saying or listening to, etc.) to expose from afar the secrets inside our homes.

“Can house-to-house searches with biologically or electronically enhanced tools be far off? Will police soon be going door-to-door asking to search our homes for evidence of drugs or other crimes?”

Can house-to-house searches with biologically or electronically enhanced tools be far off? Will police soon be going door-to-door asking to search our homes for evidence of drugs or other crimes? Are these tactics tolerable so long as they tend to be employed mainly in economically depressed, racially segregated neighborhoods? One can only hope that the American people would not be so quick to accept the Court’s recent, sweeping generalizations about the ever-narrowing boundaries of our own “legitimate expectations of privacy.”

Religious freedom under the First Amendment has not been immune from the crossfire of the war on drugs. In an extremely controversial decision, the Supreme Court recently upheld the penalization of a bona fide sacramental use of the obscure hallucinogenic drug, peyote, by two members of a small, but well-established, Native American religion. A five-justice majority abandoned a long-standing balancing test for weighing claims of religious liberty under the First Amendment’s Free Exercise Clause in favor of 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.” “In my view,” Justice Sandra Day O’Connor dissented, “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…. [L]aws 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.” Can the government criminalize other religious practices, so long as the law is couched in neutral, behavior-oriented language? Can the state bar 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? Could it require a priest to divulge the secrets of the confessional?

The Sixth Amendment guarantees the accused the right “to have the assistance of counsel for his defense.” Yet, in 1989, the Supreme Court (with conflicting evidence of Congressional intent on this issue) broadly interpreted federal law to permit the pretrial freezing of the assets of an accused drug suspect for the express purpose of depriving the supposedly innocent-until-proven-guilty-defendant of the economic power to employ counsel of her choice on the very charges upon which the freeze order is based. The five-justice majority wrote contemptuously of that which the dissent took to be the core guarantee of the Sixth Amendment: “the ability to retain the best counsel money can buy.” If winning the war against drugs is the primary objective of our judicial system, then, admittedly, it follows naturally that depriving suspected drug dealers of the financial means necessary to prepare an effective defense is a valid governmental objective. But were not the courts, and independent defense counsel, seen by the Founders as the essential means for realizing even more fundamental purposes? If ensuring the integrity of the criminal justice process, and the enforcement of the guarantees of the Bill of Rights against governmental overreaching, is the ultimate province of the courts—accomplished through the vigorous, though often unpopular, advocacy of the criminal defense attorneyemdash;then how can one adversary be permitted to beggar his opponent before the trial has even begun? As much as one might wish to see the successful prosecution and punishment of drug criminals, can we afford not to heed the warnings raised by the dissenters?

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 imperiled.

A mandatory sentence of life imprisonment, without parole, for a first offender convicted of simple drug possession?

Last Term, a splintered Court also dealt a weakening blow to the Eighth Amendment’s Cruel and Unusual Punishment ban. The majority upheld a mandatory sentence of life imprisonment, without parole, for a first offender convicted of simple possession (i.e. without proof of any intent to distribute) of 672 grams (slightly more than a pound and a half) of cocaine. Two of the justices argued forcefully for a wholesale abandonment of earlier precedent and a holding that no legislatively authorized sentence of imprisonment could ever be struck down, no matter how disproportionate to the crime. Three others were unwilling to go that far, but were nonetheless persuaded by the “pernicious effects of the drug epidemic in this country,” that Harmelin’s possession of cocaine for personal use was “as serious and violent as the crime of felony murder,” and therefore, “momentous enough to warrant the deterrence and retribution of a life sentence without parole.”

Examples of other prosecution-oriented decisions, in which inroads have been made on our Bill of Rights in the name of the exigencies of the war against drugs, abound. Some may have been rightly decided, others not. But the general trend is unmistakable: increasingly, the Supreme Court, and by its leadership the lower courts, sees its mandate not as the guardian of the rights of the criminal accused (the role which the Bill of Rights was intended to assign to it), but rather as an active participant in the war on drugs. The pendulum has clearly swung very far to the right, indeed, since the days of the Warren, or indeed even the Burger, Courts.
These developments may be superficially reassuring to a people sick and tired of senseless, violent crime and social and racial conflict. But, as the crime statistics clearly show, there is little the court system can do to “win” the war against crime. The cost in terms of lost convictions of a more expansive view of the rights of the accused was rather tiny to begin with, and the fact is that more than 90% of serious crime will remain opaque to even the most draconian criminal justice regime. The war on drugs simply cannot be won in the courts, or the lockups, or the prisons. It can only be won on the streets, in the classrooms, at the workplace, and in the clinics. But this war does have the potential to draw into its line of fire our most precious possessions: the individual liberties which Madison and his contemporaries were wise enough to enshrine in our constitution. In this “anything goes” atmosphere, only time will tell whether we have given up a substantial part of our birthright for the sake of expediency.

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 Bill of Rights places sometimes costly limits on the weapons and tactics which government may bring to bear against crime. When a court enforces those limits it is not a technicality, but a constitution, which has been vindicated.”

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. 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—or perhaps forgotten—something wonderfully inspiring in the enduring principles of liberty which are nowhere better expressed than in our Bill of Rights, in the words of retired Justice William Brennan, “a sublime oration on the dignity of man, a bold commitment by a people to the ideal of libertarian dignity protected through law.” If we fail to understand these truths, then our Bill of Rights may become just another casualty in the war on drugs.

* This article is a condensation of a law review article written by Ed Rosenthal and published in the George Mason University Civil Rights Law Journal. Requests for reprints, questions, comments, suggestions, or for further information about our Bill of Rights and the criminal justice system, may be directed to Ed Rosenthal.