How Many Constitutional Amendments Are There?

The short answer: the number of times the Supreme Court has ruled on a constitutional question. Every time the Supreme Court grants certiorari, allows a case to move ‘upwards’ from state and Federal courts to its chambers, and then proceeds to rule–keeping in mind the supposedly relevant precedents, and on the basis of a coherent theory of the interpretation of legal texts–it offers us an amended constitution. Every act of interpretation–sometimes plain literalist, sometimes originalist, sometimes purposive–adds meaning and texture to the text of the articles of the Constitution. Thus the content of the Fourth Amendment is not to be found in the Constitution; it is to be found in the cumulative history of all Supreme Court rulings on cases that have rested on contested interpretations of the Amendment. What does ‘unreasonable’ mean? What does ‘search’ mean? What does ‘seizure’ mean? What does ‘persons’ mean? What does ‘effects’ mean? What does ‘probable cause’ mean? To decipher this meaning, scattered over thousands and thousands of pages of Supreme Court rulings is an almost insuperable and intractable task; it is much easier, therefore, to fall back on the simplest formulation of all: ‘The Fourth Amendment says that…’. But the filling out of that particular that-clause will call for the expenditure of considerable ink, and in the end, it will appear that the protections of the Fourth Amendment are considerably more ambiguous–in several dimensions–than previously imagined, by both its detractors and proponents alike.

These considerations show that talk of ‘constitutional protections’ must always proceed hand in hand with talk of constitutional interpretation, with the history of actual supreme court rulings on the constitutional question under discussion. Such inclusion is especially necessary when giving someone legal advice; as Justice Holmes sagely pointed out many years ago, the law is what the judges say it is: “The prophecies of what the courts will do in fact, and nothing more pretentious.”

Our nation is entering a period of great legal uncertainty; there is much talk of taking cover under constitutional protections, of seeking refuge from an authoritarian government under the covering canopy of the Bill of Rights. But the text of the Bill of Rights is not sufficient to provide such protection; the Supreme Court rulings on Bill of Rights cases are far more germane. To look only to the Constitution is dangerously complacent; talk of legal rights without actual legal protections is hollow.

Many a patriot is disappointed and disillusioned to find out that in point of fact the Fourth Amendment is almost hollow in content; its protections systematically eviscerated over the years by repeated weakenings through selective, ideological, and politically motivated interpretation. Mass surveillance; warrantless searches; stop and frisk; the list goes on. Where is the Fourth Amendment?, the patriot asks. The answer is: not in a small booklet, but in that section of the law school’s library that deals with constitutional law.

Constitutional conventions, two-thirds majorities, ratifications by state legislatures–such is the machinery of the constitutional amendment by legislative fiat. Such convolutions are kludgy compared to the awesomely efficient method of Supreme Court rulings; there, in the foundry of the Supreme Court’s chambers, new meanings are forged every year, every Supreme Court season.

The Legal Protection Of Armed And Deadly Assault By The Police

There are, supposedly, many legal protections to guard a citizen’s interaction with law-enforcement agencies and their officers: you may not be detained without cause (‘Am I under arrest?’ ‘Am I?’ ‘If I’m not, may I go?’); you and your personal spaces and possessions may not be searched without cause (‘Do you have a warrant?’); you may not be coerced into making confessions or incriminatory statements (‘I’m not talking.’); you have the right to an attorney (‘I want to see a lawyer’); heck, you even have the right not to be assaulted or shot dead during the course of an interaction with a police officer.

So say the books. Courts sing a slightly different tune. There, all manner of exceptions may be found: law enforcement officers may detain, search, and question you in ways deviating from the prescribed code and conduct of behavior if they were ‘acting in good faith’; they may suspend their reading of your rights if they were acting under similar motivations and had reason to suspect some law-enforcement imperative could be compromised otherwise; and of course, in the course of performing their duties and protecting their own lives, they may use deadly force in interactions with citizens in many different ways.

The Fourth Amendment’s protections of US citizens are effectively eviscerated by the legal standards used to evaluate police behavior in seizure, search, and armed response scenarios:

The Fourth Amendment inquiry focuses not on what the most prudent course of action may have been or whether there were other alternatives available, but whether the seizure (in this case, the shooting) was objectively reasonable to someone standing in the officer’s shoes—and it was.

Excerpt from Smith v. Freland
“Under Graham, we must avoid substituting our personal notions of proper police procedure for the instantaneous decision of the officer at the scene. We must never allow the theoretical, sanitized world of our imagination to replace the dangerous and complex world that policemen face every day. What constitutes ‘reasonable’ action may seem quite different to someone facing a possible assailant than to someone analyzing the question at leisure.”
—excerpted from Smith v. Freland, 954 F2d 343, 347 (6th Cir. 1992)

And so, it must come to pass. Police officers can shoot and kill a twelve-year old boy playing with a toy gun in a children’s playground, two seconds after their arrival, because in their judgement of what constituted ‘reasonable action,’ it was reasonable to shoot and kill such a boy. Such a standard has been in place with us ever since the Supreme Court ruled in Graham v. Connor ruling that “cops can shoot you dead as long as their sense of self-preservation is “reasonable” in the face of your perceived dangerousness.”

The gap such rulings and interpretations have opened have resulted in a chasm, a gaping maw into which we feed, without ceasing, the bodies of innocent citizens–mostly black and brown men–year and year. The feverish fears of policemen are the only regulators of their trigger fingers.

A policeman feels unsafe; he fires. His safety has been addressed; what about ours?

Random Searches on the New York Subway: A User’s Story

Today’s post will simply make note of an interesting (and alarming) email I’ve received from a reader. Please do share this widely.

Some time ago I was researching the random bag check policy for the NYC subway system and stumbled across your blog posting [on random searches on the New York subway].

Until today I had never been singled out for a random bag check nor had I ever been arrested.  When I entered the subway on 58th street/Columbus Circle today at around 1pm a police officer approached me and asked to search my backpack.  I thought about it for a moment and then declined.  He told me that since I declined I would not be allowed to enter the subway.  I told him that that was fine with me and that I would simply exit and take a taxi.  I exited and began to make my way down eight avenue on foot to flag a taxi.  Along the way, instead of researching the matter on my phone more extensively as I should have done, I pondered the logic and fairness of the situation.

Even though I had nothing to hide, for some reason I did not feel like having my privacy invaded.  I also questioned the efficacy of the search strategy.  I wondered what exactly the officer meant when he told me I could not enter the subway.  Did he mean I could not enter at the exact spot where he was conducting the search?  Did he mean I could not enter that particular line at any other entrance?  Did he mean that since I had declined the search I could never ride the subway ever again on any other day and on any other line?  The vagueness of his statement puzzled me.  Surely as a metro card carrying resident of NYC I would not be required to suspend all access to this vital means of public transportation simply because I had declined this one bag check.  Following this train of thought I figured that if I entered at another station where no bag searches were being conducted I might be able to lawfully enter since I would be doing so without declining a bag check.

Remembering your story and some other information I had recently read about the legality of declining bag searches in public spaces I felt compelled to put my theory to the test.  I proceeded to head back a block north to 54th street and entered the subway from a different station.  When I made it to the turnstiles there was no bag search being conducted.  I swiped my card and entered the station.  Roughly thirty seconds after I entered the station I was approached by a different officer.  It immediately became clear that the original officer had put out an A.P.B. on me.   I was arrested and taken to the 58th street/Columbus circle subway police station.  The arresting officer instructed me to stand and face the entry counter where a duty officer and his sergeant were sitting.  As I waited there patiently and silently the sergeant and duty officer began discussing a strange smell that they detected in the air.  They continued by directing sarcasm my way and eventually asked me if I had been smoking Marijuana.  I said no and told them that the reason I had declined the search was not because I had anything to hide but rather that I did not feel like having my privacy invaded.  They laughed and suggested that I was lying.  I was then put in a cell with Steve, a man of multiple prior arrests who had decided earlier this morning to enter the station without paying.  I spent the next four hours learning all about Steve’s life story while waiting to be processed.  Finally, after having my mug shot and finger prints taken I was released.  I had a brief courteous discussion with the booking officer about the charges and my court date.  He informed me that because the NYC subway station is owned by a private company and because I had entered the station after declining the search I was being charged with trespassing (in fact, the subway is a publicly owned system that is leased to the New York City Transit Authority).  Furthermore, because I had entered the station after having been told not to I was also being charged with disobeying a lawful order.  He further stated that both charges are violations, lesser than misdemeanors.

That said, I am baffled by the vagueness of this law.  Why did the arresting officer arrest me rather than simply insisting on searching my bag?  Even though I was located it stands to reason that the ease with which I could have entered elsewhere renders the system contradictory and innefectual.  Your personal experience is a testament to this very idea.  The fact that I was arrested does not support the theory that the system works.  It simply seems to illustrate that much time was wasted and that I was arrested without probable cause.  I was not arrested because I was suspected of being a terrorist.  Instead I was arrested because I declined to have my privacy invaded.

I’m not totally sure what compelled me to enter the subway so quickly and so near to where I had declined the search.  For sure curiosity played a major role.  Before I decided on that course of action I did consider the wisdom of waiting a little longer, walking a little further, or simply taking a taxi as I had originally intended.  On the one hand, I am glad that the police force exists and that they are actively trying to avert another disaster.  On the other hand, if I was a terrorist or a drug trafficker or anything else unsavory I certainly would not have been so stupid as to enter the train so close and so quickly after my initial brush with the law.  I am simply a law abiding resident of this great city who was trying to make my way home.

Just some food for thought as you ponder entering the subway system so soon after and so near to your next declined bag search.

From: Matthew Akers

Orin Kerr Thinks Executive Branch Searches of The Press Are a ‘Non-Story’

Orin Kerr suggests the story of the US Department of Justice seizing AP phone records isn’t one, wraps up with a flourish, hands out a few pokes at anti-government paranoia, and then asks a series of what he undoubtedly takes to be particularly incisive and penetrating questions:

Based on what we know so far, then, I don’t see much evidence of an abuse. Of course, I realize that some VC readers strongly believe that everything the government does is an abuse: All investigations are abuses unless there is proof beyond a reasonable doubt to the contrary. To not realize this is to be a pro-government lackey. Or even worse, Stewart Baker. But I would ask readers inclined to see this as an abuse to identify exactly what the government did wrong based on what we know so far. Was the DOJ wrong to investigate the case at all? If it was okay for them to investigate the case, was it wrong for them to try to find out who the AP reporters were calling? If it was okay for them to get records of who the AP reporters were calling, was it wrong for them to obtain the records from the personal and work phone numbers of all the reporters whose names were listed as being involved in the story and their editor? If it was okay for them to obtain the records of those phone lines, was the problem that the records covered two months — and if so, what was the proper length of time the records should have covered?

I get that many people will want to use this story as a generic “DOJ abuse” story and not look too closely at it. And I also understand that those who think leaks are good things will see investigations of leaks as inherently bad. But at least based on what we know so far, I don’t yet see a strong case that collecting these records was an abuse of the investigative process.

This summation and dismissal of the ‘non-story’ of a major news organization having its phone records seized by the legal wing of the executive branch is remarkable for its straightforward intention to treat the questions above as merely rhetorical: Of course, the DOJ is not ‘wrong’ to investigate aggressively, using all means at its disposal, whistleblowers providing information to the press. It should therefore seek to identify them relying on problematic doctrines of search and seizure of personal information provided to third-parties. These searches should be broad and extensive, casting as wide a net as possible.

In this conception of executive power, there is a visible asymmetry: the threat might be perceived dimly, but the response is clear and powerful, with few limits on its application.

For Kerr, therefore, it is a ‘non-story’ when a massive exertion of executive branch power is directed at a component of the polity vital to its information gathering and reporting functions, one of whose central functions has been exercising vigilance and oversight on that same power; it is a ‘non-story’ when exercises of executive power directed toward dubious ends such as prosecuting whistleblowers might result in an attenuated and impaired  domain of political discourse. This is of little concern to Kerr in his reckonings of whether legal propriety has been kept, of whether there has been an ‘abuse of the investigative process.’ But how could there be one, when the context of the ‘investigative process’ matters so little?

The Closing of the NYPD’s Mind

Today, Brooklyn College hosted a panel titled ‘Are We Safer? Costs, Benefits, and Alternatives to 20 Years of Aggressive Street Policing” (organized by the Herbert Kurz Chair in Constitutional Law and Civil Liberties, Professor Anna Law.) The panel’s discussants were: John DeCarlo, Michael Powell (New York Times), Alex S. Vitale, and Franklin E. Zimring.  The range of topics covered in this discussion between three academics (DeCarlo has served in the police in the past) and one journalist were wide-ranging: the significance of statistics pertaining to police-citizenry contact (racial divisions, nature of contact, outcomes of contacts etc); the gap between academic and press coverage of police and criminology issues; the insularity of the New York City Police department; the tactics and strategies of New York City policing; their effectiveness in reducing crime in New York City; hidden causal factors in crime reduction; the constitutionality of the NYPD’s tactics; and so on.

I will not try and recapitulate the entire discussion as I did not take detailed notes. Here, however, is what stood out for me the most.

Both Powell and Vitale reported on a culture of seclusion that exists within the New York City Police department: it does not reach out to make, or invite, contact with journalists or academics who might be reporting on, and studying, it. There is no attempt by the department to offer insight or perspective into its decisions, to clarify and elucidate its  responses to past events, to engage in debate with scholarly or informal analysis about their operations and methodologies. It is, in sum, a closed and opaque system: it does not seek transparency in any way. Perhaps its members might complain of being misunderstood as a result of the lack of any meaningful full duplex communication, but this is a situation that  the department seems to have willfully created. Vitale reported that while he occasionally receives requests for copies of his writings on the NYPD, he has never been able to enter into a dialog with police officers; this is in sharp contrast to his interactions with other police departments elsewhere–both in the US and overseas–who have organized conferences and meetings with their officers for him, and thus sparked off an ongoing conversation, one hopefully educational for both parties. (On a side note: Professor Law invited the NYPD to participate in today’s panel and they either declined or did not return her email.)

The culture of seclusion at the NYPD is alarming in several dimensions. For one thing, it contributes to groupthink within the department; it remains embroiled in an echo-chamber of its making, content to suspiciously peruse the offerings of those who would dare write on it, but never bothering to engage in argument with them, either to change their minds or to entertain the possibility of having theirs changed. Engagement with commentary on the NYPD should not be viewed by it as an optional, supererogatory public relations exercise; rather, it should be understood as an essential part of its communications with the ‘community’ it polices. This is what one segment of the community thinks and understands about it, this is what it reports to its remaining members; it behooves the NYPD to be part of this conversation. Both parties would be enriched by the other’s perspective.

The NYPD and the communities it polices, are hurt by its barricading itself in its precincts and the subsequent closing of its mind.

Ozzie Guillen, the First Amendment in the Workplace, and Bromance

The Florida Marlins’ suspension of its manager Ozzie Guillen for his ‘pro-Castro’ remarks provides yet another teachable moment about the First Amendment and its relationship to the workplace. (Guillen has been suspended for five games.)  Guillen’s original remarks read:

 I love Fidel Castro. I respect Fidel Castro. You know why? A lot of people have wanted to kill Fidel Castro for the last 60 years, but that [expletive] is still here.

(As always with deleted expletives, I’m curious: What did he say? Anything worth reusing?)

After a storm of outrage from Miami’s Cuban community, the most ardent ‘anti-communists’ in the US (* see note below), and a quick suspension later, another familiar storm of outrage: How could this be possible in the US? Don’t we have free speech? What about the First Amendment, eh? Land of the free, Schmand of the Free!

In response to which: The Florida Marlins are private actors; they can abridge speech in their workplace as a condition of employment; and Guillen, if he doesn’t like it, is free to move to another employer more tolerant of his professed opinions. Employees have very few constitutional protections in the workplace; it is where we go to cease being citizens and start being minions. This confusion occurs most commonly with regards to the First and Fourth Amendments (“You mean my employer can search my stuff without a warrant?” Yes, they can). For some reason, most folks don’t think of Fifth Amendment protections in the workplace. Has anyone ever complained that he was forced to ‘testify’ to his boss? Has anyone ever tried taking the Fifth in a work meeting? Abandon all Constitutional Rights Ye Who Enter Here, indeed.

Of interest to me, too, was Guillen’s ‘defense,’ offered, in his own words, on his knees (can you back-pedal on your knees?):

This is the biggest mistake of my life…I’m on my knees. When you make a mistake this big, you can’t sleep. If I don’t learn from this I will call myself dumb. Today is the last day that this person talks about politics. Everyone in the world hates Fidel Castro, myself included, and I hate him for all the damage and all the hurt. I was surprised he’s still in power – that’s what I was trying to say.

I find Guillen’s clarification of his remarks quite convincing. This is because Guillen like many men, likes to express his maverick, contrarian self, his individuality, as it were, by expressing a kind of grudging admiration for other men found ‘too hard’ by the soft, weak, masses: ‘You all say he is an asshole, and I agree, but let me tell you, he’s one tough asshole, you gotta give him that! Don’t get me wrong; I don’t like the guy. But you gotta admit, he’s a tough dude.’ Or something like that.

Note: Two anecdotes: First, many years ago, a Cuban friend of mine bought a Yugo (don’t ask). His mother refused to ride with him in the car; not because she thought it was unsafe, but because it was manufactured in a communist country. Second, another Cuban friend of mine threw out her Billy Joel records–a good move in general, I’d say–after he toured the USSR. If it isn’t obvious, these stories date back to the 1980s, when anti-communist sentiment among Miami Cubans was–if it can be imagined–even more visceral than it is today.

Random Searches on the New York Subways: Getting Used to the Stop-n-Frisk

New York City residents are, by now, used to the subway version of the stop-and-frisk, to the sight of policemen manning the turnstiles to the city subway, subjecting passengers to ‘random’ searches of their bags and belongings. The rules are quite simple: if you don’t subject yourselves to the search you don’t get to enter and ride. Many of the city’s residents, however, do not realize the option to refuse the search exists. (I have never looked closely enough to verify whether this option is made clear to the potential passenger; rather, the subway rider becomes aware of the impending search when a policeman menacingly waves you toward his partners with the irritatingly faux-polite “Sir, would you step this way?”)

Over the past few years, in the course of teaching the privacy portions of my Computer Ethics class at Brooklyn College, I became aware of a rather depressing fact when discussing the Fourth Amendment: not a single student in my classes was aware of the fact that they could decline a search and simply leave the subway station instead. When I informed them that on two separate occasions–once at 42nd Street station and once at Atlantic Avenue–I had said, “No thanks” and walked out–on the latter occasion, I walked up the stairs, crossed Atlantic and Flatbush Avenues and then entered the same station at the unmanned Hanson Place entrance–I was greeted with cries of disbelief: “Really?” “No way! You can do that?”

This little discussion is quite useful in enabling a segue into a discussion of the ludicrous rallying cry–If You’ve Got Nothing to Hide, You Shouldn’t Mind a Little Stop-n-Frisk Action–of the pro-search brigade. I ask my students whether concealment of a crime is the only reason that someone might give for refusing a search, and ask them to suggest situations where someone might quite reasonably decline a search in order to keep something entirely legal private. (Unsurprisingly, some of the examples involved pornography: one student suggested a closeted gay man going home with recently purchased gay porn; another student said he wouldn’t want his hetero-porn purchases to be visible to other passengers; others disliked the idea of police looking through their clothes; and some students, because of their own personal history of encounters with the police, simply disliked the idea of police, once again, subjecting them to an atmosphere of intimidation.) Many of my students quite like the sound of a great line I got from Marc Rotenberg: If I’ve Got Nothing to Hide, Then Why Do You Need to Search Me?

During this discussion, I also ask my students what they think is being achieved by these random searches in the subway system. As my example of entry and re-entry to the Atlantic Avenue station suggested, the system is easily co-opted (when I declined my search at the 42nd Street station, I walked eight blocks and entered the subway at 34th Street); moreover, someone actually planning to do harm to the city subways would not plan an operation that could preempted by a mere search at the turnstiles. The answer to this question emerges quite quickly: this system of searches does nothing to increase our security; it does however, ensure that the citizens of this city (and certainly those who visit it), increasingly get used to a world in which armed representatives of the state are present in public spaces, ready to inspect, regulate, and commandeer. Gradual conditioning like this can do wonders to ensure the steady, relentless erosion–one enabled by the acquiescence of the citizenry–of legally sanctioned and protected civil liberties. These searches are not tactics of protection; they are strategies of subversion.