When Rights Are Wrong
April 1, 1999
With Responses From
Apr 1, 1999
29 Min read time
The difficult choices surrounding building searches, curfews, anti-loitering provisions, and the like should be made by the individuals with the biggest stake in them.
Many tenants within CHA housing, apparently convinced by sad experience that the larger community will not provide normal law enforcement services to them, are prepared to forgo their own constitutional rights. They apparently want this court to suspend their neighbors' rights as well.... This Court has faith that parents and grandparents living in and around CHA housing will reclaim their families and restore to their children self respect and respect for other human beings. If they do, government efforts will succeed; if they do not, all efforts of government, whether within or without constitutional restraints, will fail.
-Judge Wayne Anderson, granting motion to enjoin mass searches of public housing
I understand the right to privacy, but when my baby can't play outside and your baby can't go to school without being shot and killed, what about their rights?
-Alverta Munlyn, resident of public housing
Thanks to the American Civil Liberties Union and a federal district court judge, residents of Chicago's low-income housing projects currently have the right to be free from mass building searches. The ACLU challenged the legality of such searches in a class action lawsuit filed on the residents' behalf. Judge Wayne Anderson agreed that the building searches violated the residents' constitutional rights.
The decision sounds like the rare case of a judge protecting a vulnerable population from police coercion, but for one important detail: an overwhelming majority of the residents opposed the ACLU's effort to block the building searches. The Chicago Housing Authority (CHA) adopted its building-search policy as an emergency response to the deadly outbursts of gun fire associated with incessant gang warfare; in one four-day period near this time, the police recorded more than 300 gun-fire incidents in the Robert Taylor Homes and Stateway Gardens projects. When the ACLU filed suit, the elected representatives of 18 of CHA's 19 projects intervened to support the CHA.1 But Judge Anderson dismissed the residents' willingness to consent to building searches as evidence of the corrosive effect of poverty and crime on their own "self-respect."
Judge Anderson's ruling was certainly paradoxical. We ordinarily think of rights as belonging to individuals. Rights express the respect owed to each of us as autonomous actors whose choices about how to secure our own well-being shouldn't be second-guessed by political officials. Yet in the CHA case, Judge Anderson invoked the residents' rights to overrule their choices on the ground that he knew better than they what policies treated them with respect.
As strange as this story seems, it is no aberration. The CHA building searches are only one of many law-enforcement policies attacked by civil libertarians and invalidated by courts on the ground that they violate the rights of the very individuals who support them. Before it derailed the CHA's building searches, for example, the ACLU sued to block the installation of metal detectors requested by project residents. It has also attacked youth curfews and gang-loitering provisions on the ground that these policies promote harassment of inner-city residents-even though residents of the inner-city have in fact been the driving political force behind many of these measures.
Problems of inner-city crime defy easy solution. Reasonable people can (and often do) disagree on whether building searches, curfews, anti-loitering ordinances and the like work at all, and-more pointedly-whether they will work well enough to justify the burdens they impose on individual liberty. What is unreasonable, however, is to assume that the individuals most intimately affected by these policies are not smart enough or are not informed enough or do not value liberty enough to decide these issues for themselves.
Why do some civil libertarians and courts feel constrained to override these persons' freedom in the name of respecting their rights? The answer is that they subscribe to an anachronistic and unduly abstract understanding of individual rights-one fashioned to address political conditions that, by and large, no longer characterize American society. Contemporary political conditions require a new conception of rights-one that assures that the difficult choices surrounding building searches, curfews, anti-loitering provisions, and the like are made by the individuals with the biggest stake in them.
Rights 1960s Style
Rights have histories. They are fashioned in a particular social and political context for the purpose of achieving particular ends. The prevailing understanding of rights in American criminal law was fashioned in the 1960s, as a response to the problem of institutionalized racism.
As is well known, in the decades between the post-Reconstruction years and the civil rights movement, African-Americans were excluded from meaningful participation in American political life. The South used a host of techniques-poll taxes, literacy tests, malapportionment, and outright physical intimidation-to deny African-Americans a voice in electoral politics. Things were little better in the North, where machine politics of the kind made famous by the elder Richard Daley in Chicago effectively excluded legally enfranchised African-Americans and other minorities from meaningful influence on the political process in America's inner-cities.
Law-enforcement institutions played a vital role in reinforcing American apartheid. The horrific television images of blacks in Birmingham, including children, being attacked by police dogs and police officers wielding high pressure water hoses and clubs are indelible and poignant reminders of the South's violent resistance to civil rights progress. But Northern urban minorities were also frequently subject to violent abuse. In the late 1960s, for example, Chicago police led the nation in the slaying of private citizens, who were euphemistically characterized as "fleeing felons" to mask the routine use of excessive force by police against racial minorities. The police also exploited seemingly benign offense categories, such as disorderly conduct, vagrancy, and loitering to bully minority youths and adults who had the audacity to challenge police authority.
Excluded from politics and harassed by police, African-Americans were also denied adequate police protection. In the mid-1960s, African-Americans were an especially vulnerable population: they comprised more than half of the known homicide victims, and were nearly twice as likely as whites to be the victims of robbery, rape, aggravated assault, burglary, and auto theft.
How did police respond to these problems? They didn't. Throughout the country, the criminal justice system paid much less attention to violent crimes committed against minorities than to those committed against whites. In addition, the police systematically disregarded more common "disorder" offenses in minority communities, dismissing prostitution, public drinking, gambling, and even simple assaults as "typically Negro." This toleration of crime and disorder helped to accelerate urban decay, driving critical commercial establishments, as well as working-class residents with the resources to leave, out of poor inner-city neighborhoods.
Against this background, the Warren Court fashioned its well-known array of procedural rights in criminal law. From the Miranda rule, to detailed search-and-seizure guidelines, to the "void for vagueness" doctrine (used to invalidate vague regulations on the grounds they leave too much room for abuse), these guarantees were animated by two principles-"community distrust" and "discretion skepticism"-that together can be characterized as the 1960s conception of rights. To be sure, that conception is often presented in very abstract terms, as if it descended directly from first principles of political theory, and as if anyone who believes in rights at all must embrace that particular conception of them. But the 1960s conception is best understood contextually, as a program to counteract the distorting influence of institutionalized racism on America's criminal justice system and, more generally, on American democracy.2
The 1960s conception of rights showed distrust for communities insofar as it licensed relentless judicial second-guessing of judgments about the appropriate balance between order and liberty arrived at through normal democratic process. Of course, all rights reflect some degree of community distrust because they protect the interests of vulnerable minorities from majority overreaching. What made the 1960s conception of rights uniquely distrustful was its extension of searching judicial scrutiny to basic neighborhood policing techniques that historically had been viewed as important to promoting the welfare of the community at large.
Institutionalized racism fully justified this wariness of familiar techniques and of the capacity of normal democratic politics to protect citizens from police abuse. However widely felt it may have been previously, the coercive impact of neighborhood policing was by the 1960s obviously concentrated on African-Americans, who by virtue of their exclusion from the political process had little or no say on the justice of particular law-enforcement practices, and little or no recourse when standard practices were abused. Under these circumstances, democratic approval did not signal that the individuals most affected by an invasive procedure or law viewed its impact on liberty as justified by its contribution to order. That's what searching judicial review was meant to guarantee: by expanding rights against the police, it would correct for the failure of the democratic process to take into account the views and interests of African-Americans.
In a famous 1960 Yale Law Review article, Justice William O. Douglas leveled exactly this critique against anti-loitering laws, then a staple of American policing. It was naive to defer to the majority's approval of vagrancy and loitering laws, Douglas asserted, because those arrested under such laws typically came "from minority groups" with insufficient political clout "to protect themselves," and without "the prestige to prevent an easy laying-on of hands by the police." Douglas later authored the Court's opinion in Papachristou v. Jacksonville, which invalidated anti-loitering laws as unconstitutionally "vague."
Papachristou embodies the "discretion skepticism" characteristic of the 1960s conception of rights. In this decision, and others like it, the Supreme Court insisted that the authority of law enforcement officials to arrest and search be defined with exacting precision.
This jurisprudential innovation, too, was motivated by anxiety about institutionalized racism and associated with these failures of democracy. While discretion advances the public interest by giving law enforcers the flexibility to respond to circumstances too numerous and diverse to be addressed in detail by legislative rulemakers, it also threatens the public good by giving law enforcers the latitude to abuse their power for personal ends. The primary check against such abuse is the accountability of law enforcers to the community's political representatives. In the political context of the 1960s, however, law enforcement officials were accountable only to representatives of the white majority. For precisely this reason, the police predictably used their discretion to harass and repress minorities.
Insisting that law-enforcement authority be exercised according to hyper-precise rules was a device for impeding the responsiveness of law enforcers to the demands of racist white political establishments. Such rules also made it much easier for courts to detect and punish racially motivated abuses of authority. Impeding political responsiveness is not always a good thing. But under the circumstances, an expanded set of rights was a necessary corrective for the failure of the democratic process to represent the interests of all citizens and monitor abuses of power.
The 1990s World
Given its historical context—the nature of the problems that then confronted African-Americans, and the Court's own institutional capacities—the 1960s conception of rights deserves admiration. The same cannot necessarily be said, however, for its continued enforcement. For the 1990s present a dramatically different set of social and political conditions.
To begin, African-Americans are no longer excluded from the nation's democratic political life. Voter registration levels among African-Americans skyrocketed almost immediately after the enactment of the Voting Rights Act. And in all regions of the country, African-Americans have translated voting power into political representation. Never higher than three percent before 1970, the size of the African-American contingent in Congress grew to nine percent by the mid 1990s-close to the proportion of African-Americans in the population. Between 1970 and 1983 the number of black representatives to state governments doubled. The number of African-American mayors increased more than five-fold during the same period, and the number of city council members quadrupled. During the 1980s and 1990s, many of America's largest cities-including New York, Los Angeles, Chicago, and San Francisco-have been run by African-American mayors.
Growth in African-American political strength has also changed the faces of urban police forces. In Chicago, 25 percent of police officers are African-American; in Washington D.C. a majority are. New York, Washington, and Los Angeles have all employed African-American police chiefs. It's no longer plausible for courts simply to assume a deeply antagonistic relationship between the police and minorities, or simply to assume that the democratic process is still so dominated by racial exclusion that courts must substitute for it as monitors of police practice.
Crime in minority communities has also changed dramatically since the 1960s: it has grown substantially worse. While national crime rates have been steadily declining during the past decade, they have been increasing in the predominantly minority neighborhoods of America's inner cities. Because most crime is intraracial, disproportionate victimization of minorities goes hand in hand with involvement of minorities in the criminal justice system. Fully one-third of African-American men between 20 and 29 are currently incarcerated, on probation, or on parole.
The high proportion of African-American men who have been convicted of a crime, moreover, is a cause, as well as a consequence, of the inner-city crime problem. As more persons are convicted of crime, less stigma is attached to law-breaking. The higher the number of men incarcerated, the greater the number of single mothers, whose own economic struggles deprive them of the time needed to shield their children from the pressures that draw them into crime. The perception that African-American men are disproportionately involved in crime breeds distrust and suspicion of all African-American men, putting even law-abiders at a disadvantage in the employment market and eroding the neighborly bonds essential to community self-policing.
In short, crime enfeebles social structures, enfeebled social structures produce more crime, and crime destroys African-Americans' wealth and security. This self-reinforcing dynamic constitutes one of the largest impediments to improving the economic and social standing of African-Americans today.
How well does the 1960s conception of rights fit the political reality of the 1990s? In a word, horribly.
To begin, community distrust and discretion skepticism address problems that no longer dominate American political life. Only someone who fails to read the newspapers could think that racially motivated police brutality is a thing of the past. But only someone who reads the papers with astonishing selectivity could believe that the problem of police racism today is indistinguishable from what it was thirty years ago. In 1968, Frank Rizzo emerged as a national political figure by orchestrating racial terrorism as police commissioner (and later mayor) of Philadelphia. By 1998, ambitious urban mayors like New York's Rudolph Giuliani were making a public point of energetically disciplining racist cops. Meanwhile, police chiefs overseeing racist forces, such as Daryl Gates in Los Angeles, were finding themselves unceremoniously forced out of their jobs.
This welcome change is a consequence of decisive reforms secured by the civil rights revolution. Exercising the powers secured to their constituents by the Voting Rights Act, African-American political leaders have demanded and obtained more effective bureaucratic procedures for punishing police brutality.
These procedures do not completely eliminate the risk of harassment associated with aggressive order-maintenance policing. But given the opportunities that African-Americans now have to protect themselves from state abuse through politics, it's perfectly reasonable for them to believe, as Harvard's Randall Kennedy has written, that "the principal injury suffered by African-Americans in relation to criminal matters is not over-enforcement but under-enforcement of the laws."
Ironically, the 1960s conception of rights now poses a significant impediment to vanquishing this particular legacy of racism. Reduction of crime is one of the primary purposes to which minority communities are putting their new-found political power. Instead of shunning the police, inner-city residents are demanding that police give them the protection they have historically been denied. Yet professed civil libertarians-including the ACLU-have repeatedly invoked the 1960s conception of rights to block efforts by inner-city residents to liberate themselves from the destructive effects of crime.
The invalidation of the CHA's building-search policy is one striking example of the mismatch between the 1960s conception of rights and the political reality of the 1990s; another is the invalidation of Chicago's "gang-loitering" ordinance. Enacted in 1992, this law was designed to restrict known gang members from congregating on street corners and other public ways. The ACLU attacked the ordinance as a throwback to the pre-Papachristou era, when police officers used vague loitering ordinances to intimidate and harass racial minorities. A state court (in a case now on appeal to the Illinois Supreme Court) agreed, describing the ordinance as an exercise of power reminiscent of a police state.
The picture of Chicago's gang-loitering ordinance that the ACLU and the court painted is simply false. The law was enacted not to oppress the City's minority residents; rather, it sprang from the grievances of these very citizens, who demanded effective action to rid their neighborhoods of drive-by shootings, fighting, and open-air drug dealing. The ordinance was passed by an overwhelming margin in the Chicago City Council, with key support from Aldermen representing the city's most impoverished, crime-ridden districts, whose residents are predominantly racial and ethnic minorities.
The claim that the ordinance invited arbitrary or discriminatory enforcement was also unfounded. In fact, the ordinance was accompanied by a carefully considered set of guidelines. For example, only a small number of officers in each police district were permitted to enforce the ordinance. They could do so, moreover, only in specified areas of a district with demonstrated gang activity. Before specifying enforcement "hot spots" district commanders were to consult with community residents.
What's more, it appears that the ordinance succeeded in decreasing crime before the courts intervened. Police data indicate that aggressive enforcement of the ordinance had led to substantial decreases in gang- and narcotics-related homicides and aggravated batteries in the districts with the most serious problems. Blocking the policies makes law-enforcement protection less effective while adding no new political checks against law-enforcement abuses.
Another effective law-enforcement policy that has fallen victim to the 1960s conception of rights is the youth curfew. More than half of major cities in the United States have enacted curfew legislation since 1990. They have been fought every step of the way by civil libertarians who argue that curfews interfere with the choices of individual teens and their parents, and invite racially motivated harassment by the police. Some (though not all) courts agree.
But again, the civil libertarian critique defies political reality. African-Americans, far from opposing curfews, have supplied much of the political energy behind their resurgence. Edna Pemberton-an African-American mother of 10 who spearheaded the campaign for a Dallas curfew-described the charge that curfews fuel racial harassment as "an ACLU scare tactic that polarized the community." Even inner-city teens generally favor curfews. One poll showed that 70 percent of African-American teens in Washington, D.C., supported that city's curfew.
The claim that curfews interfere with individual choice is naive. It overlooks the degree to which juveniles' decisions to participate in inner-city night life are constrained by unchosen and widely resented norms. Willingness to venture into the dangerous after-hours world can be seen as a sign of toughness among inner-city teens, and the reluctance to do so as a sign of weakness. Even youths who prefer not to participate in such behavior-and whose parents desperately prefer the same-can thus find themselves pressured to join in. Curfews help to extricate juveniles from these pressures.
Ironically, inner-city curfews are frequently opposed by residents of affluent, largely white, suburban communities. These suburbanites fear that curfews will be used against their children, who occasionally come to the city for entertainment and don't face the pressures that curfews are meant to counteract. The puzzle is why civil libertarians and the courts side with the suburbanites, who have much less at stake in the crime problems of the inner city than do inner-city families.
Civil libertarians and courts offer several justifications for overriding the decisions of inner-city residents, none of them satisfying. One is that individuals choose building searches, curfews, gang-loitering ordinances and the like only because society at large refuses to address the social inequities at the root of inner-city crime. It is true that society at large now refuses to address social inequities-and true, too, that residents of the inner-city face unfairly truncated options. But what follows? That those residents should live with gangs, murder, and drugs until justice rolls down like the waters? That they should be made to accept the one option-rampant crime-that they prefer least, and about which they might try to do something?
Another version of this argument is strategic: courts shouldn't let the residents of the inner-city choose "quick-fix" law-enforcement policies because that reduces society's long-term incentive to remedy inequity. This claim is exceedingly dubious. Thirty years of real-world experience belie the idea that spiraling inner-city crime will somehow force powerful interests outside the inner city to revitalize those communities. The only thing that can force such change is sustained community-level political organizing. That organizing is going on, and it is often just these organizers who argue in support of curfews, building searches, and gang-loitering ordinances.
But the real question for civil libertarians is this: Why can't we trust residents of the inner-city to decide for themselves whether the strategic objection makes sense? Shouldn't these individuals be allowed to determine whether this is the most sensible way to improve their lives?
Civil libertarians have an answer to these questions, too: no. The judgment and "self-respect" of inner-city residents, they sometimes maintain, have been deformed by social deprivation. Consequently, they lack the capacity to make critical assessments of curfews, gang- loitering ordinances, building searches, and other similar policies.
This contention is rife with self-contradiction. Civil libertarians usually take immense pride in their resistance to paternalism. Respecting individual dignity, they maintain, requires society to refrain from forcing an idealized set of values and preferences on its citizens. Yet upon the discovery that inner-city residents favor policies that the ACLU believes violates rights, too many civil libertarians resort to the very kind of paternalism they ought to abhor. The support of inner-city residents for building searches, loitering ordinances, and curfews, they argue, should be ignored because it is a product of the debasing influences of crime and poverty. The appropriate way to show respect for these individuals is to enforce the rights they would value had they formed their preferences in a better environment. To treat them with dignity society must-in the words of the notorious anti-liberal Jean-Jacques Rousseau-"force them to be free"!
But the civil-libertarian claim that inner-city residents lack critical judgment is not just paradoxical-it is manifestly false. When the ACLU filed suit in the building-search case, CHA residents were vigorously debating the appropriateness of the policy. Although many residents supported the existing CHA policy on searches, many others advocated guidelines to restrict the searches to the hours immediately following a report of gun fire. The heated debate concerning the CHA building searches among CHA residents demonstrates that these individuals do not just accept rules uncritically. Rather, like other self-respecting persons in a tough situation, they reflect, they complain, they demand, they argue, they fight, and they ultimately decide what the best course of action is-unless, of course, the power of self-government is taken away from them.
Indeed, the worst consequence of the ongoing commitment to the 1960s conception of rights may be its disempowering effect on inner-city communities. Criminologists have long recognized that inner-city crime both creates and is sustained by atomization and distrust, which in turn make it harder for individuals to engage in the cooperative self-policing characteristic of crime-free communities. A healthy democratic political life can help to repair these conditions. That is precisely what residents of the inner city enjoy when they are free to decide for themselves whether to adopt building searches, gang-loitering ordinances, curfews and the like. Thus, in addition to standing in the way of potentially effective law-enforcement policies, the 1960s conception of rights pre-empts deliberative experiences that reduce crime through their effect on public dispositions and habits.
Rights 1990s Style
What is to be done? Abandoning rights of criminal procedure altogether is obviously not the answer. No one believes that rights are unimportant. Moreover, it would be silly to argue that the legacy and teachings of the 1960s conception of individual rights have no relevance today. At the same time, it is equally clear that a rigid application of those views is no longer appropriate. We need a new conception of rights, informed by premises that fit the unique political conditions of the 1990s, including the emergent political power of African-Americans in the inner-cities, and the devastating effects of inner-city crime on the social and economic prospects of African-Americans today.
A 1990s conception of rights should be informed by two principles: community burden-sharing and guided discretion. The first determines when courts should relax their individualist distrust of community judgments, while the second assures that the trust extended to exercises of community power is not abused.
Start with burden-sharing. It's commonplace to describe constitutional rights-particularly those that relate to criminal justice-as guaranteeing a reasonable balance between liberty and order. "Burden sharing," a principle associated primarily with the constitutional theory of John Hart Ely, helps courts to determine whether the balance struck by any particular policy is reasonable. If the coercive incidence of a particular policy is being visited on a powerless minority, courts make an independent assessment of whether the benefits in terms of order outweigh the costs in terms of liberty. This explains why courts strictly scrutinize policies that discriminate on the basis of race, restrict "dangerous" speech, or impose special obligations on account of religion.
But when a community can be seen as sharing in the coercive burden of a particular policy, courts are much less likely to second-guess political institutions on whether the tradeoff between liberty and order is worthwhile. This explains the deference courts afford to generally applicable laws under a host of constitutional provisions, including the Privileges and Immunities Clause, the dormant Commerce Clause, and the Free Exercise Clause. When courts defer to the political process in those contexts, they are not saying that the majority gets to decide what rights minorities have, but rather that the willingness of the majority to bear a particular burden suggests that the policy in question doesn't embody the political undervaluation of liberty that "rights" are meant to prevent.
The broad, 1960s conception of rights rested on a presumption that white communities never shared in the burdens of law-enforcement techniques that restricted the liberty of African-Americans because members of the white- majority community could use their political power to protect themselves from discretionary coercion. That assumption made sense in the 1960s, given racism and the virtual disenfranchisement of African-Americans in the South.
But it makes a lot less sense today given the political strength of African-Americans and their own legitimate concern to free themselves from the ravages of inner-city crime. So instead of viewing all law-enforcement techniques with suspicion-adopting the strong presumption that democratic process is unable to monitor the exercise of police power-courts should ask whether the community in question is participating in the burden that a particular law imposes on individual freedom. If it is, the courts should presume, as they do in myriad other settings, that the law does not violate individual rights.
Building searches easily pass the burden-sharing test. The burden of unannounced mass searches falls on everyone who lives in the projects, not just on persons suspected of wrongdoing. The political representatives of these individuals, moreover, have unambiguously expressed their support for the searches. To be sure, not everyone who lives in the projects approves of the tradeoff between submitting to this intrusive law-enforcement technique and the increased security it delivers. But such disagreement comes with the territory of democracy. Because the dissenting individuals have every chance to voice their opposition in the political process, and because there is every reason to believe that the majority-whose members were affected in exactly the same way-give due weight to the dissenters' interests, there is no good reason for courts to second-guess the community's determination that building searches strike a fair balance between liberty and order. To be sure, reasonable people disagree about the proper way to strike that balance. But the role of democracy is to settle such disagreements. Unless the process itself is deficient, the courts should defer to those settlements.
Gang-loitering ordinances and curfews likewise pass the burden-sharing test, albeit in a less straightforward fashion. These laws do indeed burden the liberty of only a minority-gang members in the one case, and juveniles in the other-many of whom might be disenfranchised. But this minority is by no means a despised group, whose legitimate interests are disregarded by the process. Inner-city teens and even gang members are linked to the majority by strong social and familial ties. It is precisely because they care so deeply about their welfare that residents of the inner-city favor relatively mild gang-loitering and curfew laws-as alternatives to draconian penalties for gang-related crimes, severe mandatory minimum prison sentences for drug distribution, and similarly punitive measures, which inner-city residents view as intolerably destructive. The pervasive sense of linked fate between the majority of inner-city residents and the youths affected by curfews and loitering ordinances furnishes a compelling reason not to second-guess the community's determination that such measures enhance rather than detract from liberty in their communities.
Indeed, there is a profound tension between individual liberty and judicial decisions striking down such laws. Many inner-city residents view gang-loitering ordinances and curfews as tolerably moderate ways to steer youths away from criminality. They realize that when courts prohibit such crime-preventive measures, legislatures compensate with longer prison terms for law-breaking. If the police cannot order kids off the streets today, they will end up taking them to jail tomorrow. The self-defeating result is a society that shows its respect for individual liberty by destroying ever greater amounts of it.
Now consider the principle of guided discretion. The 1960s conception of rights insists on hyper-specific rules because it assumes that white political establishments can't be relied upon to punish law enforcers who abuse discretion to harass minorities. That anxiety is no longer so well founded: law enforcers in America's big cities are accountable to political establishments that more fairly represent African-Americans. Uncompromising hostility to discretion is therefore inappropriate.
That doesn't mean that the law should regard discretion as an unvarnished good. Even assuming political accountability, unbounded discretion creates a risk that individual law enforcers will be able to disregard the will of the community without detection. It also creates the risk that officials will concentrate burdens on a powerless or despised segment of the community, thereby undermining the principle of community burden-sharing. Hyper-specific rules are unnecessary under the principle of "guided discretion," but this principle does require communities to allocate authority in a manner that minimizes these risks.
Chicago's anti-gang loitering ordinance is a good example of a law-enforcement policy that satisfies the guided-discretion principle. That law was implemented through regulations that clearly specified who counted as a "gang member," what kinds of behavior counted, which officers could enforce the law, and in what neighborhood areas it could be enforced. When evaluated against these regulations, misuse of the ordinance would have been easy to spot. Given these safeguards, courts should have upheld the gang-loitering ordinance, whether or not it satisfied the demand for hyper-precision associated with the 1960s conception of rights.
The CHA building searches present a closer case. The policy involved little risk of selective enforcement precisely because it consisted of indiscriminate, mass searches. Nevertheless, the policy placed no limits on when such searches could be conducted. Indeed, officials sometimes failed to carry one out until several days after gun fire had been reported. As a result, nothing prevented use of the sweeps as a prophylactic, rather than as an emergency measure. Thus, the principle of guided discretion might have supported requiring the CHA to develop guidelines on the timing of building searches-a result that would have tightened the fit between this law-enforcement technique and the desires of the residents. Judge Anderson, in contrast, ruled that even such guidelines wouldn't have solved the conflict between building searches and the residents' "rights."
The Tyranny of Legal Abstraction
In his 1960 Yale Law Journal article, Justice Douglas complained that "a disproportionate part of the energies of [the legal] profession is devoted to the semantics of the law." He continued, "[T]he discourse with which we tend to preoccupy ourselves," he continued, "is pretty much in the pattern of theological discourse. The priests of the profession argue and debate about nice points of law that may seem important to those who lead smug lives in ivory towers but quite unimportant in the life of the nation." The specific targets of Douglas' fire were courts that had invoked colonial precedents to uphold anti-vagrancy laws.
Though civil libertarians view themselves as Douglas' heirs, they misperceive the forest of his critique for the trees. Douglas criticized vagrancy laws on the ground that the legal abstractions used to defend them were out of keeping with contemporary circumstances-namely, the discriminatory enforcement of vagrancy laws against effectively disenfranchised minorities. But circumstances have changed since 1960. Today African-Americans exercise considerable political clout in our nation's inner-cities; and far from being terrorized by anti-loitering laws, curfews and building searches, many inner-city residents support these measures as potent weapons against the crime that drastically diminishes their economic and social prospects.
The courts and civil libertarians who invoke the outmoded 1960s conception of rights are now the ones guilty of reducing law to a "theological discourse" divorced from "the life of the nation." Such scholasticism, moreover, has very real and painful consequences. Defenders of liberty can do much better.
1 Each CHA development has a Local Advisory Council (LAC), the members of which are elected by that developmentÕs residents. The presidents of each LAC serve on a Central Advisory Council, which adopted a resolution officially approving the building -search policy and authorizing LAC presidents to intervene against the ACLU lawsuit.
2 The Supreme Court's equal protection jurisprudence explicitly reflects the idea that courts should prevent majorities from singling out politically powerless minorities for special burdens (see John Hart Ely, Democracy and Distrust, 1980). But the same idea implicitly animated much of the rest of the Warren Court's expansive jurisprudence of constitutional rights. The Court, of course, played a conspicuous role in the movement to purge American institutions of the contaminating influence of racism in the 1950s and '60s. The Court's leading race-equality cases, including Brown v. Board of Education, 347 U.S. 483 (1954), and the apportionment case of Baker v. Carr, 369 U.S. 186 (1962), provoked intense political controversy. Confronted with a sustained attack on its own legitimacy, the Court changed its tactics. Rather than meet racism head on, the Court began to fight it indirectly through general constitutional standards that did not explicitly address race but that were nonetheless calculated to constrain racially motivated policies. Harry Kalven, in his classic The Negro and the First Amendment (1965), documented the contribution that this strategy made to modern free speech jurisprudence. The Court's death penalty jurisprudence in the late 1960s and early 1970s likewise reflected a (largely) unspoken concern with race. See Carol S. Steiker and Jordan M. Steiker, "Sober Second Thoughts: Reflections on Two Decades of Constitutional Regulation of Capital Punishment," Harvard Law Review 109 (1995).
While we have you...
...we need your help. Confronting the many challenges of COVID-19—from the medical to the economic, the social to the political—demands all the moral and deliberative clarity we can muster. In Thinking in a Pandemic, we’ve organized the latest arguments from doctors and epidemiologists, philosophers and economists, legal scholars and historians, activists and citizens, as they think not just through this moment but beyond it. While much remains uncertain, Boston Review’s responsibility to public reason is sure. That’s why you’ll never see a paywall or ads. It also means that we rely on you, our readers, for support. If you like what you read here, pledge your contribution to keep it free for everyone by making a tax-deductible donation.