WASHINGTON YANKEES IN KING ARTHUR'S COURT: The Supreme Court Journeys To Eighteenth Century England To Define The Rights Of Twenty-first Century Americans

By MICHAEL C. DORF
Wednesday, May. 02, 2001

Many Americans were no doubt surprised to learn recently that the Fourth Amendment's prohibition against "unreasonable searches and seizures" permits the police to arrest them and take them to jail for committing misdemeanors such as not wearing a seatbelt — even where the maximum statutory penalty is a $50 fine.

Almost as disturbing as the result in Atwater v. Lago Vista, however, is the reasoning process the majority used to arrive at it. The crucial factor in the majority opinion was the determination that eighteenth century English and American statutes and precedents generally permitted peace officers to make warrantless arrests for misdemeanors. Consequently, the Court reasoned, twenty-first century Americans have no constitutional protection against such arrests.

The case is practically a primer on the pitfalls of the "originalist" approach to constitutional interpretation. Remarkably, the author of this primer is someone who has been a foe of originalism: Justice David Souter.

[citizen getting 'stocked' by a police officer]

The Dispute in Atwater

In 1997, Gail Atwater was driving her pickup truck with her two small children in the front seat. None of the three were wearing seatbelts, a misdemeanor under Texas law. Rather than issuing Atwater a citation, however, Lago Vista police officer Bart Turek arrested her and took her to jail.

The experience disturbed Atwater and traumatized her children. She ultimately pled guilty to the seatbelt offense and paid the maximum fine of $50. She then sued the police department for violating her Fourth Amendment rights.

The Fourth Amendment, which the Supreme Court has long held applicable to the States via the Fourteenth Amendment, begins: "The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated."

An arrest, all agree, is a "seizure" of the "person." So the question in Atwater's case was solely whether her arrest by Turek was "unreasonable."

An Unreasonable Arrest?

Atwater argued the arrest was indeed unreasonable, because the underlying offense is not punishable by imprisonment and involves no breach of the peace. Four Justices agreed with her, and thus would have ruled that her arrest violated the Fourth Amendment, but a majority disagreed.

The majority opinion authored by Justice Souter (and joined by Chief Justice Rehnquist and Justices Scalia, Kennedy, and Thomas) acknowledged that "Atwater's claim to live free of pointless indignity and confinement clearly outweighs anything the City can raise against it specific to her case." In other words, the majority recognized that Atwater's liberty and dignity had been unjustly invaded. Nevertheless, the Justices declined to fashion a general constitutional rule barring arrest for minor offenses.

Why not fashion such a rule? The Court provided a number of practical reasons, but the heart of the opinion turned on the original understanding of the Fourth Amendment. That understanding, in turn, according to the Court, can be derived from the common law and statutes in force in England and America just prior to and at the time of the adoption of the Bill of Rights in 1791.

What Originalism Means

The view that the Constitution should be interpreted to reflect the original understanding of its framers and ratifiers is known as "originalism." While the term is often invoked — sometimes to praise, and sometimes to vilify — its precise meaning is not often made clear.

Virtually all judges and constitutional scholars agree that the original understanding is at least one relevant factor in constitutional interpretation. If nothing else, it provides useful context and a starting point for seeing how the meaning of a provision has developed over time.

But people who call themselves originalists give original understanding a more prominent place. For them, the original understanding is either always dispositive, or creates a strong presumption that can only be overcome by very powerful arguments.

Justice Souter, Originalist?

The majority opinion in Atwater adopts the strong presumption approach. In an important footnote, Justice Souter's majority opinion takes issue with the claim, made by Justice Sandra Day O'Connor in dissent, that history is just "one of the tools" relevant to a Fourth Amendment case. According to the majority opinion, there is a "heavy burden" on any litigant urging a departure from the original understanding.

These are strong claims, especially coming from Justice Souter, who is not easily classified as an originalist. In the 1997 case of Washington v. Glucksberg, for example, Justice Souter wrote a separate opinion endorsing the view of the late Justice Harlan. There, he approvingly quoted Justice Harlan's famous statement that the process of elaborating constitutional rights involves finding the appropriate balance between liberty and order, "having regard to what history teaches are the traditions from which [the balance struck by society] developed as well as the traditions from which it broke. That tradition is a living thing."

Possible Explanations for the Souter Switch

Souter's invocation of the "living" Constitution in Glucksberg is anathema to self-styled originalists like Chief Justice Rehnquist and Justice Scalia, each of whom has criticized this idea. Why then did Justice Souter author an originalist opinion in Atwater?

One possibility is that he did so to attract the votes of the Chief Justice and Justice Scalia, as well as Justices Kennedy and Thomas. Perhaps thinking that Atwater should lose even if the Fourth Amendment is understood as a living thing, Justice Souter might have been willing to add arguments he did not fully believe in order to forge a compromise.

Another possibility is that Justice Souter was simply responding to Atwater's own claims. She argued in her brief that the original understanding actually supported her position.

Thus, it is possible that the Atwater case does not imply Justice Souter's conversion to originalism. But the express language of the opinion certainly suggests such a conversion. If true, that is terribly unfortunate, for Atwater itself illustrates a number of the difficulties that plague originalism.

The Problem of Discretion

Proponents of originalism contend that it constrains judges. They point out that many of the issues addressed by the Constitution arouse contentious debate. And they argue that if unelected judges are to invoke the Constitution to displace the policies of politically accountable actors, they should at least do so on the basis of more than their own subjective values.

Originalists believe that a judge who interprets a constitutional provision in accordance with the original understanding avoids the danger of subjectivity. Such a judge relies not on his or her own views, they claim, but rather on the views of those who enacted that provision. The inquiry is objective, not subjective.

Arguments like these offer originalism as a solution to what Alexander Bickel referred called the "countermajoritarian difficulty" in constitutional interpretation. The difficulty, which has troubled constitutional scholars for generations, is that even though we live in a democracy, our constitutional system includes a distinctly unmajoritarian aspect: a life-tenured federal judiciary that can invalidate statutes and other actions of elected officials.

Yet originalism frequently fails at its own game of suppressing subjectivity and individual judicial discretion. Atwater itself is a good example. As Justice Souter frankly admitted, the historical evidence about the permissibility of arresting minor offenders is ambiguous. Many prominent legal historians writing in the nineteenth and twentieth centuries took the view that traditional common law principles barred such arrests, as did no less an eighteenth century authority than Sir William Blackstone.

Justice Souter recognized that opinion was divided but he nonetheless concluded that the weight of authority supports the police. Others may draw different conclusions. And in doing so, they inevitably exercise discretion, and act subjectively.

The larger point that originalism overlooks is that many of the issues addressed by the Constitution were contentious even when the Constitution was adopted. The Revolutionary Era was a time of great social, political, and intellectual tumult during which there were strong disagreements about the nature of government and rights. The ratification votes in some states were exceedingly close, with Federalists and Anti-Federalists often expressing radically different views of what the Constitution's text means.

For this reason, searching for a consensus of meaning in the eighteenth century will often prove more rather than less difficult than searching for a contemporary consensus, because judges must rely on an imperfect historical record of a world that is long gone.

Professional historians differ sharply in interpreting the very same evidence. It is no wonder that judges, who typically lack professional training in history, do too.

Changed Circumstances

Furthermore, even when judges can confidently reconstruct the past, interpretive puzzles abound. The world inhabited by the framers and ratifiers of the Constitution and Bill of Rights is profoundly different from our own. In Fourth Amendment cases, this fact is particularly salient because so much of contemporary police work would have been impossible in the eighteenth century, as two cases from the current Supreme Court term illustrate.

Earlier this year, in Ferguson v. City of Charleston, the Supreme Court ruled that, absent consent, warrantless drug testing of hospital patients for law-enforcement purposes violates the Fourth Amendment. Unsurprisingly, none of the Justices in either the majority or the dissent addressed the question of whether such drug testing was generally considered permissible in the eighteenth century. Such an inquiry would, of course, have been fruitless, as modern drug-testing techniques were unavailable then.

In Kyllo v. United States (a case recently analyzed by Sherry Colb for this site), the Court will soon decide whether using a thermal imaging device to detect heat emerging from a home constitutes a "search" within the meaning of the Fourth Amendment. What did eighteenth century English and American cases have to say about thermal imaging? The very question is preposterous.

Indeed, Atwater itself presents a case of profoundly changed circumstances. Automobiles did not exist in the eighteenth century. One might be tempted to look to analogies, such as the horse and buggy, but the horse and buggy played a different role in eighteenth-century America from the role played in modern America by the automobile, to put it mildly.

Moreover, organized police forces as we now know them did not come into existence until well into the nineteenth century. During the Revolutionary Era, law enforcement was a largely volunteer undertaking. Granting the police the power to arrest people for minor offenses may work a much more profound invasion of personal security in the modern world than it would have in the days when criminals were apprehended by the hue and cry and the posse comitatus — that is, the volunteer police.

To be sure, it is not obvious which way the changed circumstances cut in this case. Automobiles can travel at greater rates of speed than horses, and accordingly one might think that the safety interest in law enforcement is greater now than in the eighteenth century. So too, one might think that an organized police force poses less of a threat of arbitrary power than a volunteer force.

But the important point is that drawing analogies and distinctions is not simply a matter of reading the historical record. The process involves subtle value judgments of precisely the sort that originalism is supposed to, but does not in fact, eliminate.

Changed Values

Even when the evidence of the original understanding is clear, and even when it is simple to locate an appropriate analogy, originalism may still yield bad answers because values change.

For example, the people who wrote and ratified the Equal Protection Clause of the Fourteenth Amendment in 1868 thought it was consistent with separate spheres for men and women. In the nineteenth century, and well into the twentieth, women were denied the most basic rights and opportunities because their proper role was understood to be that of wife and mother. Yet the modern Supreme Court has quite correctly held that, given modern understandings, official sex discrimination is presumptively unconstitutional.

Here, too, the Atwater case is instructive. The very eighteenth-century statutes that Justice Souter cites as evidence of the broad arrest power could not withstand scrutiny under modern vagueness doctrine. These eighteenth-century statutes authorize the arrest of "vagrants," "vagabonds," and "night-walkers," among others. Yet just two years ago, in Chicago v. Morales, a majority of the Court (including Justice Souter), invalidated a Chicago prohibition against "gang loitering" on the ground that it vested too much discretion in the police to decide who is illegally loitering, and who is simply innocently standing around.

Police discretion to arrest a citizen for the most minor misdemeanor is liable to be abused. That fact puts everyone's liberty in jeopardy. But expanding the scope of arrest authority is likely to have its greatest impact on those most likely to be singled out for mistreatment by the police. As the dissent in Atwater pointed out, the majority's decision will therefore exacerbate the problem of racial profiling.

Would the framers and ratifiers of the Fourth Amendment have worried about racial profiling? That seems unlikely. Many of them owned slaves. However, that should hardly count as a reason to write the prejudices of a bygone age into our constitutional doctrine.

It is true that in a few instances, the framers chose constitutional language that would appear to lock in their own understanding. The Seventh Amendment, for example, states that the right to a civil jury trial "shall be preserved."

Accordingly, the Supreme Court has interpreted the civil jury trial right as co-extensive with the jury trial right in the eighteenth century — inferring that the Constitution sought to "preserve" the right just as it was then. In light of changes in civil procedure, that interpretive enterprise is quite tricky, but at least it appears faithful to the constitutional text.

For the most part, however, the Constitution does not ask us to preserve the past, but simply to make our own best judgment. The Fourth Amendment's prohibition on "unreasonable searches and seizures" invites us to figure out for ourselves what searches and seizures are unreasonable, not to ask what people long gone would have thought about problems they never envisioned.

We are enormously lucky that our forebears wrote most of the Constitution in language that did not lock in their own view of the world. Originalism would rob us of one of the Constitution's great virtues, its adaptability.

A Methodological Objection, Not a Political one

Because originalism tends to favor past views over present ones, it is "conservative" in the literal sense of the word. However, it does not necessarily lead to politically conservative results.

For example, in the 1995 case of Wilson v. Arkansas, the Court unanimously held that police must generally "knock and announce" before executing a search warrant at a home. This conclusion was based on an evaluation of the common law of the eighteenth century.

The fact that originalism can be used to produce liberal as well as conservative results does not, however, justify the leading role the Court gave to historical arguments in Wilson or in Atwater. Any sincere method of constitutional interpretation can produce a variety of results. But a method such as originalism that places so much weight on the past is likely to miss many of the most important aspects of contemporary problems.

Originalism is a seductive philosophy because it offers judges the possibility of resolving difficult cases without making difficult choices. Ultimately, however, originalism does not deliver on its own promises, and the promises it makes are often not worth keeping. In the words of the late Justice William Brennan, originalism "is arrogance cloaked as humility."


Michael C. Dorf, a FindLaw columnist, is Vice Dean and Professor of Law at Columbia University. He teaches Constitutional Law, among other subjects, and is co-author, along with Laurence H. Tribe, of the book On Reading the Constitution

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