Author: Thomas Crocker


The Life of the Law Still Requires Logic

Justice Holmes famously declared in The Common Law that “the life of the law has not been logic; it has been experience.“ Justice Alito, in his majority opinion in Kentucky v. King would appear to agree with Justice Holmes, with an added proviso. Justice Alito, like Holmes, emphasizes experience. In emphasizing experience, the majority opinion focuses not on the experience of the private individual subject to searches, but on the experience of police who must respond to the myriad factual situations they daily confront without time to engage in fine-grained legal analysis of where the limits of the Fourth Amendment reside. But, in so doing, the opinion jettisons logic altogether, producing a rule at odds with itself, at least when viewed from the perspective of the rights-holder rather than that of the potential rights-violator.

In what follows, I will briefly sketch why.

1.  The Court provides the following rule to govern the case: “Where, as here, the police did not create the exigency by engaging or threatening to engage in conduct that violates the Fourth Amendment, warrantless entry to prevent the destruction of evidence is reasonable and thus allowed.” The alternative rule—the one that I think would be a more reasonable account of Fourth Amendment limitations on state power—is stated and rejected as “unreasonable”: “[A] rule that precludes the police from making a warrantless entry to prevent the destruction of evidence whenever their conduct causes the exigency would unreasonably shrink the reach of this well-established exception to the warrant requirement.” If the latter would “unreasonably shrink” an “exception,” already something of an odd construction, then what would count as a violation of the Court’s rule? (And to register the oddity of worrying about shrinking an exception, is not the burden usually on the “exception” to justify its reach, after all the rule is supposed to be the norm, and the exception the abnormal—or is the fact that the Court is worried about protecting the exception against “unreasonable” applications of the rule mean that the rule and exception are now really in an inverse relation?). How would the police ever engage in or threaten to engage in a violation of the Fourth Amendment under circumstances that would lead to a warrantless, forcible entry, especially during a narcotics investigation?

Let’s posit that warrantless, non-exigent, forcible entry after knocking and loudly proclaiming “police, police, police” would count as a violation of the Fourth Amendment. Let’s dispense with another possible scenario: if police failed to knock and announce, with or without a warrant, and forcibly entered, then there would also be a Fourth Amendment violation. But, this situation could not be a police-created exigency since there was no announcement of their presence through which they could be “engaging or threatening to engage” in lawless conduct. This conduct is simply kicking in a door, and therefore another clear Fourth Amendment violation. So knocking and announcing is a necessary condition for police created exigency. But once police presence is announced, especially in a drug case, are there any practical circumstances under the Court’s rule that will count as a Fourth Amendment violation? Is there any circumstance in which the police-created exigency (where exigency need be no more than police fear that “evidence” might be destroyed) will not count as an exigency justifying warrantless entry? The short answer is: No.

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Shhh . . . If We Don’t Talk About It, Might It Cease to Matter?

In a case that involves the most private of places—the home—where the Fourth Amendment has been said to draw a firm, but bright line at the threshold, the Supreme Court held that police officers may enter without a warrant when they fear the occupants might be destroying the very thing they otherwise needed consent to inspect. An important value protected by the Fourth Amendment is privacy, but the word “privacy” makes an appearance only once in Justice Alito’s majority opinion in the recent decision in Kentucky v. King. Privacy’s appearance comes in the highly problematic concluding section of the opinion: “This holding provides ample protection for the privacy rights that the Amendment protects.” Justice Alito makes this conclusory statement despite the absence of any discussion in the opinion of the privacy rights at stake. The opinion is instead replete with discussion about the needs of law enforcement. This pattern of competing narratives—the importance of providing clear rules to enable police practice in contrast to focusing on the value of protecting privacy—seems to be tilting more towards the former to the exclusion of the latter, as I have explored in depth elsewhere. Sometimes the issue is presented as requiring courts to balance the needs of law enforcement with the privacy rights of individuals. But it is difficult to do such balancing when the only appearance “privacy” makes is in an unsupported conclusion that privacy rights have been given “ample protection.”  How they have been given such protection remains unspecified.

What is even more interesting is the grammar of the sentence in which “privacy” appears. Notice that the reference is to “the privacy rights that the Amendment protects.” Justice Alito, as we have seen, does not tell us what those rights are “that the Amendment protects” (whatever they happen to be).  Indeed, his statement is consistent with “the privacy rights that the Amendment protects” being a null set. In that case, it is naturally quite easy for the opinion to be consistent with the “privacy rights that the Amendment protects.” It doesn’t protect any. Consistent with Justice Alito’s failure to mention the value of “privacy” in his more forceful dissent in Arizona v. Gant (where Justice Stevens, writing for a majority, balanced law enforcement needs against a robust understanding of the privacy rights at stake in favor of a rule that protected more privacy), one has the sense that at least some members of the Court think that if we don’t talk about privacy, it might cease to matter. After all, the concept is not explicitly mentioned in the text. Shhhh . . . .


Universities and the So-Called Customer

After a longer than expected hiatus while I transitioned to new institutional setting in Germany, I have some thoughts to share about the plight of higher education, which has been much under discussion lately (see this overview of a number of recent books on the topic). I have this creeping sense, as I do about a number of other things such as politics or income inequality, that things are changing around me in significant ways, but I lack the perspective to see enough of them or sufficient insight to understand what they mean or how to affect their direction. Recently, the authors of a study—which has generated its own discussion about the failures of education—wrote an Op-Ed that both cites to the statistics demonstrating that “a large number [36 percent after four years] of the students showed no significant progress on tests of critical thinking, complex reasoning and writing,” and attributes a cause to this failing.  In “Your So-Called Education,” they cite as a significant cause the turn away from educational spending by colleges and universities to expenditures on counselors, administrators, recreation centers, and the like. In the process, a particular view of education has taken hold:

“The situation reflects a larger cultural change in the relationship between students and colleges. The authority of educators has diminished, and students are increasingly thought of, by themselves and their colleges, as “clients” or “consumers.” When 18-year-olds are emboldened to see themselves in this manner, many look for ways to attain an educational credential effortlessly and comfortably. And they are catered to accordingly. The customer is always right.”

Yet, as the Chronicle reports, there are political forces agitating to entrench this losing practice further, seeking to empower the student, not the professor, in order to “make students the actual customers for higher education.”  They propose seven solutions without identifying a real problem in need of solution. Texas looks to be the next battleground to test this issue, but less ideologically driven voices have also called for changes in line with the so-called “customer’s” wishes. More focus on teaching, less emphasis on research, and superficial calls for reducing costs by ending tenure (as if tenured professors were the source of ballooning higher education costs rather than the recreation centers, the administrators, the counselors, etc.) are components of a new view of higher education—one that is deeply problematic. And, one that is at odds with giving serious consideration of the future of the social sciences and humanities.

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Private Manning and the Law Professors

Are there some core claims about the rule of law that every lawyer, and more particularly, every law professor knows? To give an affirmative answer to this question would seem to be relatively unproblematic. Moreover, a paradigmatic example of such shared knowledge is the principle that accused criminals are innocent until proven otherwise. In a recent interview, President Obama challenges the universality of this claim. Speaking about Private Bradley Manning’s continued pre-trial detention, he said: “We’re a nation of laws. We don’t let individuals make their own decisions about how the laws operate. He broke the law.” Of course, the Commander in Chief cannot proclaim that “he broke the law” and also affirm the principle that every law professor knows. One of these is inconsistent with the other.

Professors Bruce Ackerman and Yochai Benkler published an open letter in the New York Review of Books with signatures from many law professors (including the present writer), calling for the administration to justify publicly the precise grounds for Private Manning’s extraordinary conditions of detention (which include forced nudity, regular sleep disruption, and solitary confinement) and to end any procedures not justified. In so doing, they remind President Obama that he “was once a professor of constitutional law, and entered the national stage as an eloquent moral leader. The question now, however, is whether his conduct as commander in chief meets fundamental standards of decency.” The question sets up the opposition between what every law professor knows and what President Obama, the former professor, does. The assumption is that President Obama views the initial claim—innocent until proven guilty—as unproblematic. There is another sentence in his claim that no one else has discussed that provides an interesting clue about the viability of this assumption. President Obama also said “We don’t let individuals make their own decisions about how the laws operate.” Who is the “we” who has power to “let” or not, and who are the individuals whom “we” do not “let” make their own decisions about laws?

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South Carolina’s Light Bulb

South Carolina is contesting federal authority—again. And, once again, it is not alone. Legislators are considering a Bill that would permit local producers to manufacture and sell incandescent light bulbs so long as both the production and sales occur within the state.  The Light Bulb Freedom Act passed the House with overwhelming support. The claim is that a purely local economic activity would be beyond the power of Congress and federal agencies to regulate. This is a clear constitutional loser. (But I also think the challenge to the health care mandate is a clear loser as well). What is unclear to me is why, in the second decade of the new millennium, these basic issues of federal power presumed largely settled during the New Deal and subsequent civil rights legislation have been placed in question again. These are not relatively tertiary issues about whether the Tenth Amendment provides any limitations on federal power to “commandeer” state officials. The light bulb is about core federal power. Rep. Bill Sandifur (R) sums up the view: “This bill is about taking a stand against government intrusion in our everyday lives. I am championing this bill because I believe that we must fight for limited government, personal freedoms, and the free market.”

That a supposedly local economic activity would be beyond the reach of congress is an issue that was settled in Wickard v. Filburn, and reaffirmed more recently in the California medical marijuana case, Raich. South Carolina is clearly wasting its time, but why? One reason may be that the State fosters political attitudes resistant to federal power that remain substantially unchanged since pre-Reconstruction times. The opportunities to resist may be truncated, but the attitudes are unreconstructed. South Carolina legislators are also entertaining the idea of printing their own precious metals-backed currency. Such notions sustain a fantasy of state independence from long established national monetary policy.

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What “a Mess”–The KSM Trial

After announcing in November, 2009 that Khalid Sheikh Mohammed (“KSM”) would be tried in federal court in New York, Attorney General Eric Holder announced last week that KSM would now be tried in a Military Commission at Guantanamo. This stark reversal, which also follows a failure to close the Guantanamo detention facility in the first place, continues to make true the description President Obama gave to the detention policies he inherited: “We’re cleaning up something that is, quite simply, a mess—a misguided experiment . . .” In some respects, the cleanup is as big a mess as the original because the continued detention of persons at Guantanamo combined with the inability to conduct trials in the U.S. means that the administration is continuing practices it does not think are in the best interests of the U.S. At this point they have no choice. Holder reiterated his belief that “the best venue for prosecution was in federal court.” That being no longer possible, the experiment therefore continues.

Holder also stated that Congress had “taken one of the nation’s most tested counterterrorism tools off the table and tied our hands in a way that could have serious ramifications.” One aspect of this on-going mess is how checks and balances have worked in surprising ways.

An executive branch chastened by the Supreme Court into seeking congressional approval for Military Commissions not only obtained stronger constitutional support for newly constituted Commissions, but has now been forced by Congress into utilizing them, if—and this is a big if—the executive branch wishes to enforce laws violated by the detained individuals (as opposed to detaining them indefinitely). The President’s power has been limited, but not in a way that channels it into ordinary governing form. Rather than rely on Article III courts as the default, the President must now utilize Military Commissions in ways that interfere with prosecutorial discretion. The irony here is that the end result—military trials—is an outcome favored by Dick Cheney and other presidential unilateralists achieved by a means—tying the AG’s hands—restrictive of presidential power that they ordinarily contest. Such a result may make little practical difference regarding the substance of policy to future Cheney-inspired executive officials. But for the present Attorney General this is an extraordinary situation. He must proceed with a legal course of action that he thinks is decidedly inferior (untested venue, unresolved evidentiary issues, undesirable signals internationally, etc.) where a better course should be available (tested, resolved, and legitimate Article III courts).

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Moral Idiocy

If you are like me, you all too often encounter arrogant incompetence in our once-lauded service economy: wrong answers delivered with the conviction of certainty, or incomplete services rendered as if they were fully performed. If you are like me, you are also sometimes puzzled at the wide circulation of political falsehoods parading as truth but held as articles of faith. What accounts for these and other phenomena of error and indifference?

In his “pop” philosophy book, Shop Class as Soulcraft: An Inquiry into the Value of Work, Matthew Crawford examines the entangled relationship between moral virtue and intellectual virtue. Crawford is a motorcycle mechanic and philosopher, and draws much from Robert Pirsig’s similar encounters with others who hold themselves out as mechanics, but who lack the virtues necessary for commitment to their craft.

Recounting an episode in which the putative mechanic took no care in what he did, and did his work badly, causing further damage to the motorcycle, Crawford writes:

Here is the paradox. On the one hand, to be a good mechanic seems to require personal commitment: I am a mechanic. On the other hand, what it means to be a good mechanic is that you have a keen sense that you answer to something that is the opposite of personal or idiosyncratic; something universal. In Pirsig’s story, there is an underlying fact: a sheared-off pin has blocked an oil gallery, resulting in oil starvation to the head and excessive heat, causing the seizures. This is the Truth, and it is the same for everyone. But finding this truth requires a certain disposition in the individual: Attentiveness, enlivened by a sense of responsibility to the motorcycle . . . The truth does not reveal itself to idle spectators.

Pirsig’s mechanic is, in the original sense of the term, an idiot. Indeed, he exemplifies the truth about idiocy, which is that it is at once an ethical and a cognitive failure. The Greek idios means “private,” and an idiotes means a private person, as opposed to a person in their public role—for example, that of a motorcycle mechanic. Pirsig’s mechanic is idiotic because he fails to grasp his public role, which entails, or should, a relation of active concern to others, and to the machine. He is not involved. It is not his problem. Because he is an idiot.

I want to share some thoughts about moral idiocy after the break.

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McDonald’s Living Constitutionalism

The Supreme Court’s awaited case in McDonald v. Chicago answered affirmatively the question whether the right announced in District of Columbia v. Heller would apply to the states. In so doing, the opinions raise a number of questions about constitutional method and interpretation. I want to focus on the opinion’s living constitutionalism. Others such as Reva Siegel and Jack Balkin argued that Heller, which announced the existence of a personal right to gun ownership in the home, was itself an opinion employing living constitutional methodology: it canvassed post-enactment state constitutional provisions, post-enactment commentary, post-enactment state court cases, and ignored/distinguished prevailing Supreme Court precedent to the contrary. Hardly the evidence required for a so-called “originalist” interpretation. The right being established, Justice Alito’s task was to say whether it could be “selectively” applied to the states.

Contrast the following two statements from Justice Alito’s opinion in:

(1) “ During the 1788 ratification debates, the fear that the federal government would disarm the people in order to impose rule through a standing army or select militia,” motivated Federalists and Anti-Federalists alike to believe that “the right to bear arms was fundamental to the newly formed system of government.” (slip op. 21).

(2) “By the 1850’s, the perceived threat that had prompted the inclusion of the Second Amendment in the Bill of Rights—the fear that the National Government would disarm the universal militia—had largely faded as a popular concern, but the right to keep and bear arms was highly valued for purposes of self-defense.” (slip op. 22).

How do we move from the first rationale to the second? The answer requires us to examine Justice Alito’s living constitutionalism.

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Why We Have a Senate

The passing of Senator Robert Byrd brings with it the acknowledgment of the federal largesse he brought to the state of West Virginia. From Senator Byrd, we heard no complaints about federal earmarks or redistribution of wealth. As the Times relays, Senator Byrd used his position in the Senate to aid the lives of West Virginians, improving the infrastructure and institutions of his state. To do this, he was an unapologetic practitioner of wealth redistribution. In 2004, for every dollar West Virginians spent in federal taxes, the state received $1.83 in federal funds (see the Tax Foundation Report here). Not a bad deal for West Virginia, and one that is only possible because other states receive less than they pay. Because political opposition to the idea of wealth redistribution is primarily aimed at the conferral of benefits on individuals, we do not often hear much complaining about the redistribution of federal funds at the state level (which may or may not trickle directly down to individuals). For a Senator whose early career was marked by claims of states rights, Senator Byrd became comfortable not only with Civil Rights legislation, but with the development of a strong federal role in creating a more equitable distribution of national benefits. Some states have more to offer the nation than others, and in order to counteract the effects of maldistribution, powerful Senators such as Robert Byrd champion the interests of the state they represent.

I wonder how much Senator Byrd’s achievements on behalf of West Virginia serve as a partial response to Sanford Levinson’s provocative and powerful argument that the Senate is a anti-democratic body whose time is passed. For all the bridges to nowhere powerful Senators have funded for their states, and from which their Governors have benefited, the Senate, which begins as an institution tethered to preserving the interests of their state legislatures, becomes in part an institution committed not only to locality but to the very idea of one nation indivisible. No doubt, as Levinson drives home, there is something deeply undemocratic about the Senate’s maldistribution of voter representation where California’s 36 million (who receive $0.79 on the dollar) get the same representation in the Senate as North Dakota’s 650,000 (who receive $1.73) or Alabam’s 4.7 million (who receive $1.71). The proof will be in the details, but it may be that the skewed distribution of democratic representation, may make possible a beneficial redistribution of wealth and resources that makes possible a more cohesive national unity. The Senate helps make relevant to Californians what happens in West Virginia or South Carolina. If any of this is plausible, then one irony is that the Senate does more to undermine the idea of “states rights” or “states autonomy” than it does to promote it, by demonstrating the political and practical interdependence of each state on the others. We tolerate the redistribution of wealth, aided greatly by the Senate’s equal representation of states who have less to offer the national body, because it is untenable that some have so much while others have so little. Senator Byrd undoubtedly improved the lives of West Virginians through his commitment to the practice of redistribution. And for this, we all benefit.


Civilian Control and the Unitary Executive

Who sets military policy under our constitutional system? The answer is one that is (largely) free from any ambiguities of constitutional interpretation: the President is Commander in Chief. Beginning with the President, our constitutional tradition has firmly entrenched the idea of military policy chosen by politically accountable civilian actors. Although controversial expansive domestic law enforcement powers have been asserted by the past Administration under the Commander in Chief power to conduct activities such as electronic surveillance of Americans outside of statutory authorization, there has never been any doubt about the President’s authority over military policy. In this, the executive is truly unitary. This unity is why General McChrystal’s comments, and those of his staff, are so abrasive. They suggest a lack of respect for this fundamental feature of our system and a division within the executive branch that should not exist. Add to that, the increased politicization of military officers, and we get a glimmer of shifting attitudes and priorities within our constitutional system that we would do well to confront.

Writing in the L.A. Times, Bruce Ackerman proposes creating a presidential commission on civil-military relations tasked with formulating a new canon of military ethics to clarify principles of constitutional governance in the modern world, and writes about these issues in his forthcoming book. Given the enormous amount of national resources the military consumes, and given the ability of policy to follow resources, the militarization of our politics risks distorting the order of priority in constitutional governance. Do military officers exist to serve civilian leaders and national policy, or do civilian leaders and national policy exist to serve military interests? The answer should be clear, but the more military officers become active in everyday politics—and I take McChrystal and his staff to be openly doing just that in its most bare-knuckled form—the more we risk inverting the proper answer. I would not be the first to observe that the rationality of war has a way of organizing the rationality of everyday political practice. Military interests all too easily can become the interests of all political policy. Civilian control of the military, however, at least guarantees that such rationality will be employed by politically accountable actors, making possible alternative ways of organizing our collective political life. General McChrystal’s actions, and those of his aides, challenged these settled constitutional governing principles. It is therefore good for the nation that McChrystal resigned today—but this is not enough.  I think it is important to implement something like Ackerman’s proposal to avoid relying on faith that McChrystal’s case is sui generis and does not reflect growing  attitudes and  tendencies within the military that might further distort the rationality of our politics and the integrity of our constitutional system.

Update after the break.

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