Dred Scott v. Sandford by Justice Roger Taney

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Guest Essayist: Jeffrey Reed, former Constitutional Law Professor, Western Kentucky University, Bowling Green, Kentucky

On March 6, 1857, the United States Supreme Court handed down a ruling that would forever tarnish its reputation and that would help ignite the fires that led to the Civil War. That decision, Dred Scott v. Sandford, 60 U.S. 393 (1857), held that African-Americans were not United States citizens and that the federal government had no power to regulate slavery in territories acquired after the creation of the United States.

The facts leading to the decision are a bit convoluted, but necessary to understand the case. Dred Scott was born a slave in Virginia. Read more

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Amendment IV of the United States Constitution

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Guest Essayist: Jeffrey Reed, a professional orchestra conductor, holds a degree from the Louis B. Brandeis School of Law, and has taught constitutional law at Western Kentucky University in Bowling Green, Kentucky

Amendment IV

The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized

The Fourth Amendment to the United States Constitution is the part of the Bill of Rights which guards against unreasonable searches and seizures. It also requires warrants issued by courts to be supported by probable cause.

Debates surrounding Fourth Amendment law involve balancing an individual’s right to privacy against law enforcement’s need to aggressively investigate crime. As crime rates soar, the legal trend has been to give police more leeway under the amendment.  However, it has not been without debate. One only need point to the controversy surrounding the Patriot Act, where police were granted expanded powers to wiretap phone conversations, intercept emails, etc., without a warrant. No doubt, the Fourth Amendment has created a growing body of law, affecting all Americans.

The text says:

The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.

The framers of the Constitution adopted the amendment in response to the writs of assistance (a type of blanket search warrant) that were used during the American Revolution.

Before one can answer whether a search is reasonable, it must be established that there was, indeed, a search under the meaning of the Fourth Amendment. In Katz v. United States, the Supreme Court ruled that there is a search if a party has a “reasonable expectation of privacy” in the area searched.

In Katz, the government wiretapped a telephone booth. The court found that it was an unreasonable search because the defendant expected his phone             conversation to be private. The court used a “reasonable man” standard. Would society believe that Katz’s expectation of privacy was reasonable? The court held that the government should have obtained permission from a court, via a search warrant, before wiretapping the phone booth.

In order to obtain a warrant, an investigating officer must state, under oath, that he has reason to believe that the search will uncover criminal activity or evidence of a crime. A judge must find that probable cause exists to support the warrant. The Supreme Court has ruled that the term probable cause means that there is a “practical, nontechnical” probability that incriminating evidence is involved.”

The standards of probable cause differ for an arrest and a search. A “seizure” under the Fourth Amendment occurs when a person is arrested and taken into custody. The officer must have probable cause to seize the person. Police have probable cause to make an arrest when the facts they possess, based on “reasonably trustworthy information” would lead a reasonable person to believe that the person arrested had committed a crime.

Not every incident involves an “arrest” requiring probable cause. Under Terry v. Ohio, police may conduct a limited warrantless search (frisk them) on a level of suspicion less than probable cause when they observe “unusual conduct” that leads them to reasonably believe “that criminal activity may be afoot” and that the suspect is presently dangerous to the officer or others.

The Fourth Amendment also prohibits the unreasonable seizure of personal property without a warrant. A seizure of property occurs when there is meaningful interference by the government with an individual’s possessory interests.

Courts enforce the Fourth Amendment via the exclusionary rule. Any evidence obtained in violation of the amendment cannot be used to prosecute the defendant at trial. The defense attorney must move the court to suppress the evidence.

Like any rule, there are exceptions. No warrant is needed if a person agrees to the search. Likewise, if an officer is legally in a place and sees objects in “plain view” that he has probable cause to believe are evidence of a crime, he may seize them without a warrant. “Open fields” such as wooded areas or pastures may be searched without a warrant (there’s no reasonable expectation of privacy in them). And so on and so forth.

The most recent exception was handed down by the Supreme Court on May 16th.  In a case originating in my state of Kentucky, the Court created a new exception to the warrant requirement. Now, police may enter a home without a warrant when they have reason to believe that drug evidence is being destroyed. The Kentucky police acted properly when they smelled marijuana at an apartment door, knocked loudly, announced themselves, and kicked in the door.

Jeffrey Reed, a professional orchestra conductor, holds a degree from the Louis B. Brandeis School of Law. Before beginning his music career, he practiced law and  taught constitutional law at Western Kentucky University in Bowling Green, Kentucky, where he resides.

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Federalist No. 81 – The Judiciary Continued, and the Distribution of the Judicial Authority, From McLean’s Edition, New York

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Guest Essayist: Jeffrey Reed is a professional orchestra conductor, holds a degree from the Louis B. Brandeis School of Law, and has taught constitutional law at Western Kentucky University in Bowling Green, Kentucky

It’s easy to think that the Federalist Papers, written 222 years ago, are dusty, outdated ramblings of men in wigs. The truth is, its issues still arise today. In his fourth of five essays on the judiciary, Hamilton addressed concerns that the proposed Supreme Court might become the supreme branch of government because it had the power to interpret laws passed by Congress in any way it thought proper. Opponents feared that the court’s decisions would not be subject to revision by Congress.

Hamilton pointed out that nothing in the Constitution empowered the federal courts to “construe the laws according to the Constitution.” He said that “the general theory of a limited Constitution” meant the courts must overturn a law if it violated the Constitution. Hamilton called it a “phantom” to expect that the Supreme Court would become the supreme power. True, the Court may get it wrong from time to time, but it could never rise to an alarming level of judicial activism. And, anyway, the legislative branch could overrule an objectionable court decision through subsequent legislative acts.

Unfortunately, history has proved Hamilton at least partially wrong. The Supreme Court has done quite a bit more than strike down unconstitutional laws or misinterpret others. Take segregated schools, as an example.  In Brown v. Board of Education (1954), the Supreme Court held that separate but equal public schools violated the Fourteenth Amendment Equal Protection Clause.  No one but a racist would argue that Brown’s public policy outcome was not the right one. Students should not be assigned to a school because of race. The question, however, is whether the Supreme Court’s decision was a proper exercise of its powers, or a case of judges making law.

Authors Woods and Gutzman in Who Killed the Constitution?, point out that Justices Frankfurter and Jackson conceded that they could not find  anything in the original purpose of the Fourteenth Amendment that warranted the Court’s decision in Brown. Jackson said that the Court should just admit that it was “declaring new law for a new day.”  At least according to these jurists, Brown was definitely not a case of simply declaring a law unconstitutional.

In Brown II (1955), the Court decided how to solve the problem of segregated schools declared unconstitutional in the first Brown case. The Court ruled that segregated state schools should be ended “with all deliberate speed.” But how?

North Carolina’s answer was to make school assignments based on residence, not race. In Swann v. Charlotte-Mecklenburg Board of Education (1971), the Court held that racially identifiable schools could not exist. Students must be bussed according to race to achieve integration in the schools. In other words, if a school was clearly black, white children would be bussed to that school to balance the racial inequity, even if the school’s neighborhood was identifiably black.

Unfortunately, the Swann court ignored the plain language of the 1964 Civil Rights Act, where Congress defined “desegregation” as “the assignment of students to public schools…without regard to their race [and] shall not mean the assignment of students to public schools in order to overcome racial imbalance.” [Italics mine]

To be clear, integrated schools are desirable. But was it within the Supreme Court’s constitutional power to achieve that end through racially-based bussing? If Hamilton was right, and we need not fear the Court construing laws according to its own whim, then the Court acted unconstitutionally. Congress clearly acted to prevent bussing according to race when it passed the Civil Rights Act. Hamilton warned us that Congress could always overcome an objectionable court opinion by passing laws. But that’s exactly what Congress seemed to be doing. The Court ignored Congress’ definition of desegregation, preferring instead its own definition.

Isn’t this much ado about nothing? After all, the Court arguably accomplished the right result, only faster than Congress could do. It does matter. The issue goes to the heart of our republican form of government. The United States is not an oligarchy, where power is vested in a small group—in this case, the United States Supreme Court. Such forms of government are dangerous and have resulted in disastrous consequences. In fact, author George Orwell warned of such danger in his novel 1984. No, the United States is a republic, where officials are representatives of the people, who must govern according to the limits of the Constitution. That includes the United States Supreme Court.

Wednesday, August 18th, 2010

Jeffrey Reed, a professional orchestra conductor, holds a degree from the Louis B. Brandeis School of Law. Before beginning his music career, he practiced law and  taught constitutional law at Western Kentucky University in Bowling Green, Kentucky, where he resides.

 

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