On Christmas Eve, my son Ted, 27, placed family gifts under the tree, and at dinner, son Rick, 23, asked whether Constitutional Law involved much politics. Can one study Constitutional Law without getting into political discussions, he asked.
Well, I suppose you can take some Con-Law subjects and study them without getting into the politics of the thing. In studying the Fourth Amendment protection against unreasonable search and seizure you can discover the current state of the law on searching persons, homes, automobiles, etc., without knowing or caring much about politics.
But when studying Con-Law in a year long class in law school, it does help if at least one person in the class, the professor, is somewhat aware of the attitudes that gave rise to the politics that resulted in the Court deciding, as a matter of fundamental legal policy for the Nation, that the police will be allowed to have the right to stop-and-frisk a person on the street, provided they have a specifically articulable reason for needing to do so. Random frisking of disfavored minorities, in other words, for no reason or on a hunch, in short, are not enough to make the practice legal. Stops for DWB, Driving While Black, aka Racial Profiling, in other words, are wrong, illegal, unconstitutional, not that they don't occur often enough to have become an issue.
Yet, when the cops spot a car driven by a black at night in a white neighborhood, what bit of sociologocal reasoning do you think goes through the white cop's mind? How about "Hmmm, burglaries lately, what's this dude doing here this time of night; let's check him out." Driver may turn out to be a new homeowner or a new burglar.
Housing patterns being what they are, the result of centuries of segregated living, the odds are often enough with the cop's suspicion to make the stop pay off for the cop. Drives the blacks nuts, of course. Something about consititutional right to be let alone while minding their own business. What happens in Walnut Creek and in the Pillared Temple can be two different things.
Yet here is where the politics comes in. In a hypothetical case of a police stop of an automobile for no reason other than DWB, in other words a given bad-stop, say one which results in a search of the trunk that produces evidence of a large quantity of dope, or worse yet, the body of a murder victim, there is apt to be (1) a criminal prosecution, and (2) a great deal of pressure on the local judge to uphold the search, without which the dope dealer or murderer walks.
Suppose the search is ruled admissible in the trial court and (let's make him) the murderer is sentenced to death. The conviction, based on the bad-search given in the hypothetical, is appealed to the U.S. Supreme Court. The Court decides to take the case, in light of the importance of the issue, let us say.
Is it clear that the murderer walks in the Supreme Court? Or is there pressure on the justices to uphold the search?
Suppose the minority driver is not black but Arabic, and the evidence found in the trunk leads to the arrest of an important conspirator in the 9-11 attacks. Do you think there would be some pressure on the Court to uphold the search? Perhaps to carve a "national security" exception to the Fourth Amendment?
Would political attitudes of the justices play a role in their decision-making? Who would be more apt to try to uphold the search, a liberal or a conservative justice? Which do you think are more supportive of the efforts of law enforcement, Republicans or Democrats?
The Warren Court, led by Earl Warren, the former Alameda District Attorney and California governor, who was appointed Chief Justice by President Dwight D. Eisenhower, together with, especially, Justices William O. Douglas and William J. Brennan, led a revolution in criminal procedure that provided more protection to the individual against powerful governments, state and federal, when it came to rights to counsel, improperly obtained confessions, bad searches, and the like.
In 1968, when Republican President Richard M. Nixon, appointed as Chief Justice Warren Burger, the court began to avoid adopting new protections for the criminally accused, and to decline to expand existing protections. The criminal justice revolution ended, not with its repeal, but with its containment.
Wasn't that the result of politics? By 1968 the nation had experienced the assassination of President John F. Kennedy, the inauguration of Vice-President Lyndon Baines Johnson, the Civil Rights Revolution, and now the Vietnam War, which was not going well. Protesters were taking to the streets. Dope-smoking, acid-rock loving, tie-dyed, long-haired, counter-cultural Hippies riding around in VW vans with peace sighs were protesting the war. And that was just the white children of the political elite in Washington. You should have seen them during the Summer of Love in 1967 in San Francisco, where they came to load up on supplies. And of course there was Woodstock, in New York.
Respectable people, the older generation, didn't know what was going on. Their kids and the kid from down the block were freaking out, tuning-in, turning-on, and dropping out. Their long-hair gave them away, Man, along with that funny smell that was either marijuana smoke or the patchouli oil used to mask it. It was like, crazy. A book about Janis Joplin has her allegedly doing heroin with a guy who later becomes district attorney of San Francisco.
There were demonstrations, and riots. Abbie Hoffman and the Chicago police riot under Mayor Richard Daley against the Yuppies, at the Democratic National Convention, resulted in the Chicago Seven trial and ongoing publicity.
Anti-Vietnam War protesters in New York drew the ire of construction workers, who became known as Hard-Hats, politically, from their protective headgear. Nixon played to the Hard-Hats. Protesters called the cops, "Pigs." The Pigs were Hard-Hats, too.
The Nation was at war with its young, and with itself.
How was the Burger Court going to respond to all this?
The Court was supposed to be an island of calm in the eye of the hurricane swirling around them.
And then came Watergate, where crime-in-the-streets, which most people decried, found a home in the White House.
There were more criminal defense lawyers surrounding President Richard M. Nixon, Vice-President Spiro T. Agnew, and Attorney-General John Mitchell, than are usually seen in a Public Defenders Office. When the Watergate Prosecutor, Harvard Law Professor Archibald Cox, was fired by President Nixon, acting through Ass't. A-G Robert Bork, whose predecessors had refused to wield the ax on principle, and were themselves fired, the result was the Saturday Night Massacre.
The next Watergate Prosecutor, Leon Jaworski, continued the work of Cox by subpoenaing the White House tapes, the proof of a criminal conspiracy to re-elect President Nixon by burglarizing Democratic National Headquarters offices located in the Watergate complex in Washington, and then to cover it up.
The unraveling of all this by Woodward and Bernstein of the Washington-Post, with the help of Deep-Throat, their informant, after a certain movie. The White House protested the subpoena on national security grounds, giving rise to U.S. v. Richard M. Nixon, the Watergate Tapes case. The Court did what the country expected it to do: tell the president, as we once told King George, that he's not above the law, anymore than George III was, and to hand over the tapes. A week later Nixon resigned.
Is Con-Law the product of politics?
Political attitudes are shaped into law.
Political attitudes determine the shape and extent of doctrine.
Unless you have some idea of what was going on around the time a decision is made, and why the matter was of such importance that it took the highest court in the land to smite the Gordian knot, you won't know what gave life to the decision and to the doctrine supporting it, doctrine that is supposed to decide future similar situations as they arise in the future, unless, of course, some significant difference appears, that pushes the doctrine into a new shape by adding to it or carving an exception from it.
So, to my son, Rick, who asked whether one could study Con-Law without getting into the politics of the thing, I could only reply, "Maybe, but not the way I think it should be done."
At which point Ted asked what I thought about Justice Scalia.
Probably the most interesting justice on the Court, I replied, in fact I used his views as the basis for an exam question this semester, because he provides a clear-cut view of one way that the Constitution ought to be interpreted.
"Good," said Ted, "You'll like your Christmas present."
The next morning I unwrapped Scalia Dissents, a book of the writings of guess who, edited by Kevin A. Ring, Regnery Press, 2004, which I've just begun.
Ted was right, I do like the book, because it is such food for thought.
But enough for now.
I'm stuffed.
