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April 1, 1999
With Responses From
Apr 1, 1999
12 Min read time
Rights don't determine their own content.
Rights don't determine their own content. Some institution-meaning some person-must decide whether inner-city curfews, gang-loitering laws, and building searches unreasonably subordinate liberty to order. So who should be empowered to make that moral judgment? Who has the experience, the values, and the stake that qualify her to judge?
Our answer is that the residents of the inner-city themselves do. They are the ones who face the deadly risks associated with gang criminality.1 But equally important, they are the very individuals whose apartments are subject to emergency searches and whose sons and daughters, neighbors, and friends are subject to curfews and anti-loitering laws. Because these citizens are reasonable people, because they have every incentive to consider all the relevant interests, and because in the end it is their safety and freedom that is on the line, there's no reason to think that anyone else-whether professional civil libertarians, academic philosophers, or politically insulated judges-is in a better position to decide whether these policies strike a reasonable balance between liberty and order.
That was the nerve of our essay. Many of the criticisms of it seem to be founded on misunderstanding. But at least some of the commentators' objections strike us as profound and important, and well worth the attention of anyone who is interested in how the law should take account of the political dynamics now reshaping inner-city policing. We address here the points on which the commentators lay their primary emphasis.2
1. Majoritarianism vs. rights. Several commentators accuse of us of ignoring the countermajoritarian logic of rights. Thus, Dershowtiz upbraids us for advancing the "proposition-rejected by all rights theories-that a majority can consent for an unwilling minority." Steiker lectures us about the dangers of allowing "strong majoritarian sentiment to prevail [over] constitutional freedoms."
These criticisms rest on confusion. Of course, majorities can't override minority rights; that's what it means for an entitlement to be a right. But whether there is a right against housing searches, curfews, or gang-loitering laws is exactly the issue here. To answer that question, the effect of these policies on the majority is plainly relevant: because they in fact burden the majority as well as the minority, it doesn't make sense to view these policies as reflecting the disregard for minority liberties that rights are meant to prevent. 3
This theory of rights is in fact well established in the American constitutional tradition. In its interpretation of a diverse array of constitutional provisions-from the Free Exercise Clause to the Free Speech Clause to the Equal Protection Clause to the Takings Clause-the Supreme Court has recognized that there is less need for setting into motion the elaborate judicial institution of rights, with all that entails, when majorities are sharing in burdens that they are imposing on minorities. For example, in the recent right-to-die cases, the Supreme Court acknowledged that there are important questions of liberty at stake. But the Court refused to constitutionalize the issue, in part because the terminally ill were not a group against whom democratic majorities should be thought to be biased or indifferent-precisely the kind of argument we are making here. Metal detectors in airports and sobriety check points on highways likewise burden the liberty of the majority as well as the minority and thus raise no issue of constitutional rights. Our argument is that the changing politics of inner-city law enforcement-which Skogan describes to in his response4 -now make it thinkable to apply this same mode of analysis to various inner-city policing strategies that impose significant burdens on the community at large.
2. Whose community? Whose burdens? Pildes and Dershowitz wonder how to determine whether the burden associated with a law-even one that applies on its face to all citizens-is really being "shared" by the community at large. This is an important and difficult issue that goes to the heart of our argument. Dershowitz is surely right that no court should accept the claim that a largely Christian community is sharing in the burden associated with a mandatory Christian prayer, since the members of that community wouldn't necessarily see that requirement as burdensome and couldn't be assumed to care about the sensibilities of the non-Christians who do. But if that's so, why say that the majority of the residents of Chicago Housing Authority (CHA) projects are "really" sharing in the burden of emergency building searches when they don't experience those searches as being nearly so burdensome as does the minority of residents who oppose them?
This critique shows that the burden-sharing test turns as much on normative criteria as on factual ones. We can say that a political community is genuinely sharing in the burden associated with a particular policy only if we think that the average member of that community is affected by the policy in a way that entitles her appraisal of it to moral respect. The average member of a predominantly Christian community isn't affected in that way by a mandatory Christian prayer, given the negligible impact of that policy on her, and her indifference to its impact on her, non-Christian neighbors. But the average resident of the inner-city is affected that way, in our opinion, by building searches, curfews, and anti-loitering laws, given the real impact of those polices on her and her affinity to her children and her neighbors.
But how do we know that? In the end, there's no algorithm or abstract theory that can be used to determine whether the average citizen is affected in a way that warrants deference to her appraisal of the right balance of liberty and order. All one can do is decide, based on a vivid and rich reconstruction of that actor's circumstances, whether one has confidence in that citizen's judgment.
Again, there is no perspective-free vantage point for assessing what rights citizens have. Those who say that the average inner-city resident is not in a position to assess whether particular policing strategies impose an acceptable burden on liberty are necessarily saying that judges and civil libertarians-who represent the perspectives of even more remote, and less meaningfully affected communities- are. We think anyone who listens to project resident Alverta Munlyn's explanation of why she supports building searches, to Dallas mother Edna Pemberton's defense of youth curfews, or to the South Side residents' testimony in favor of Chicago's gang loitering law will come away with immense respect for their local knowledge. We challenge anyone who has read Judge Anderson's opinion in the CHA case, or who has heard civil libertarians explain why they side with the suburbanites who opposed inner-city curfews in Washington, Dallas, and San Diego, to explain why we should respect their perspective more.
3. But is it good for the blacks? We draw fire from all sides on the question of whether our position conduces to the well-being of African-Americans. Dershowitz, for example, ridicules us for presenting an "Afro-centric" account of rights, while Steiker contends that the policies we defend are inimical to the interests of African-Americans and, in the case of the gang-loitering law, actually opposed by most of them. Other commentators chide us for implying that African Americans speak with a "single voice."
This collection of arguments reflects more confusion. We do not propose to decide whether a policing strategy violates rights by considering how it affects the welfare of African-Americans. The standard we do use is whether the coercive incidence of the policy is being visited on a powerless minority or is instead being shared in by the larger community. We emphasize the significant support of minority inner-city residents for gang-loitering laws, curfews, and building searches to show that these policies, unlike an earlier generation of public-order laws, are not aimed at reinforcing the exclusion of minorities from the nation's political and economic life.
Steiker disputes this, but her account of the politics behind the Chicago gang-loitering law is flawed. As recently as May 1998, a majority of African-American Alderman voted in favor of the ordinance. Likewise, when the City Council initially voted in 1992, the ordinance would have been defeated by a wide margin rather than passed by one had it not had the support of Aldermen representing twelve of the city's highest crime minority neighborhoods. 5
None of this is to say (nor did we ever say) that African-Americans speak with a "single voice" on any of these issues. Of course, there are differences of opinion among African Americans-as there are among whites, Latinos, and every other group of citizens-about whether such policies are a good idea. But the very fact that such disagreement is now occurring within and across ethnic and racial communities, and not simply between them-the very fact that these policies raise issues that are vexingly gray, and not starkly black and white-underscores how dramatically the political context has changed since the Supreme Court fashioned the 1960s conception of rights. That's all our 1990s conception presupposes.
4. Deformed preferences. Dershowitz purports "never" to have "heard a genuine civil libertarian make the absurd and demeaning paternalist argument attributed to us by Meares and Kahan." He'll be edified, then, when he reads the critiques of his fellow commentators. From Handler he'll learn what "scholars and activists working with dependent people have known for a long time," namely, that the expressed preferences of these people are not a reliable measure of what they "really want." From Steiker he'll learn that the support of inner-city communities for curfews, gang-loitering laws, and building searches should be disregarded because the choices they face are too "hard" for them to make for themselves. Are we really supposed to believe that the cartoonish hypotheticals served up to first-year law-school students teach us anything about the competence of inner-city residents to make up their own minds? These are the exactly the sorts of rhetorical moves that Elshtain has in mind when she complains of "liberal condescension."
5. Shifting Preferences. Harcourt, in contrast, suggests a variant of the "deformed preferences" argument that deserves to be taken seriously. He doesn't attack the competence of inner-city residents to decide for themselves right now whether the impact of building searches, curfews, and gang-loitering laws exact an unreasonable toll on their liberty. But he does worry about the effect such policies might have in enervating citizens' resistance toward invasive policies in the future. "We are all shaped by the policing techniques that we, as a society, condone, witness, experience, and inflict," he writes.
Interestingly, Harcourt has an improbable ally in this argument: Justice Scalia. Expressing skepticism that "the fiercely proud men who adopted our Fourth Amendment would have allowed themselves to be subjected" to the "indignity" of protective stop-and-frisks, Scalia has taken the position that the Fourth Amendment should be read to lock in the framers' intolerance of invasive policing "even if a later, less virtuous age should become accustomed to considering all sorts of intrusion 'reasonable.' " On this account, rights don't embody the obligation of the state to respect individuals' own preferences; instead, they are an instrument for sustaining in them the supposedly ideal dispositions of the framers.
We don't view the Harcourt-Scalia position as a reason to back off our initial arguments. Their anxiety that admittedly "reasonable" policing techniques-such as curfews, gang-loitering laws, and building searches-might nevertheless erode our society's "virtuous" resentment of state authority is speculative. We can't disprove it. But only someone who is complacent about the status quo would treat such speculation as sufficient grounds to abort experimentation with milder public-order alternatives to the crack-down policies that dominate law enforcement today.
6. More democracy? Farley, too, worries about the civic capacities of inner-city residents, and concludes that curfews, gang-loitering laws, and building searches should be on the agenda "only as part of an overall strategy of radical democracy in which we end the entire war on drugs and begin again the 1960s War on Poverty." We agree with him that more democracy rather than less is the best way to assure that citizens in the inner-city, and elsewhere, develop the dispositions on which democratic citizenship depends. We hope that he and others who see things his way understand, though, that denying these communities the opportunity to approve the policies we've defended makes revitalized democracy less likely, not more, by stripping community activists of a critical focal point for mobilizing local residents.
Conceptions of rights have life cycles. They are born of practical need, flourish in an atmosphere of general utility, and decline as changing conditions drain them of their vitality. When the contradiction between a view of rights and social necessity finally becomes too intense to be endured, that conception expires-sometimes peacefully, sometimes convulsively-and is superseded by another one that is fated to enjoy the same career.
The 1960s conception of rights has outlived its utility. It is now time to construct a new conception, one uniquely fitted to the conditions that currently characterize American social and political life and that are likely to characterize it into the foreseeable future. n
1 Zimring notes that the homicide rate for African-Americans has declined in the 1990s. This is true in aggregate, but the declines are unevenly distributed. See Pamela K. Lattimore, et al., Homicide in Eight U.S. Cities: Trends, Context, and Policy Implications 1 (U.S. Dept. of Justice, December 1997). Indeed, many urban centersÑfrom Atlanta to Detroit to Miami to Indianapolis to New Orleans-have seen increases in homicide for young African-American men during this period. See id., p. 33. In many cities where violent crime has declinedÑincluding New York and BostonÑorder-maintenance policing strategies similar to the ones we are defending deserve at least part of the credit. See Tracey L. Meares and Dan M. Kahan, "Law and (Norms of) Order in the Inner-City," Law & Society Review (forthcoming 1999). In any case, it would be ludicrous to dispute that our nationÕs predominantly minority inner-city neighborhoods remain dangerous places to live, both in comparison to other communities and in absolute terms.
2 We discuss these and other arguments in greater detail in Dan M. Kahan & Tracey L. Meares, "The Coming Crisis of Criminal Procedure," Georgetown Law Journal 86 (1998): 1153.
3 Burnham plainly misreads our argument. We aren't proposing that the "idea that insular poor black communities ... be allowed to opt out of constitutional rules"; our positions is that the burden of these policies on the majority's own liberty is a reason to conclude that such policies don't impose an unconstitutional diminution of liberty. aldron is likewise missing the point when he criticizes us for ignoring the difference between "waivers" and "abandonments" of rights. Because these policies, in our view, don't violate rights, the question of whether inner-city residents are "waiving" or instead "abandoning" them doesn't arise.
4 And which he and Susan Hartnett address in even greater detail in their book, Community Policing, Chicago Style (1997). 15 See generally Tracey L. Meares and Dan M. Kahan, "Black, White and Gray: A Reply to Alschuler and Schulhofer," University of Chicago Legal Forum 245 (1998): 246-51.
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