Non-Liberals vs. The Constitution
Via Uncle, Memphis Online has a story about the ongoing controversy surrounding the constitutionality of Helena-West Helena’s unconstitutionally inane name curfew. Like most media sources, its presentation is even-handed and takes no side on the merits or the constitutionality of the curfew in question. Like this byline:
Small Arkansas town divided over whether safety trumps Constitution
Nope, no side-taking there. None whatever. Move along, people, nothing to see here.
September 8th, 2008 at 12:38 pm
If this is not a violation of 18 USC 241, nothing is.
September 8th, 2008 at 1:08 pm
Huh? 18 U.S.C. § 241 is not part of the Constitution, of course, but more generally, huh?!
September 9th, 2008 at 1:12 am
It’s hard to see a “24-hour curfew zone” as being anything but overreaching and vague. With other sources saying that the Mayor called it “almost like marshal law” fondly, it’s a non-trivial concern.
Terry stops allow a pretty wide allowance on searches in public areas, but there’s still usually a requirement that the officer at least be able to say how the person might be armed or why he or she is dangerous or what law the police suspect is being broken. Searches like what seem to be going on here are well outside of that.
I can understand the urge for “Just the facts, ma’am,” from news reporters. That said, when neither side disputes the facts, and the legal theory is rather clear, I can’t see a bit of editorializing as unreasonable.
September 9th, 2008 at 7:13 am
Yup, if some illiterate dweeb who can’t even spell “martial” can write for Eyewitness News, that’s quite a non-trivial concern, indeed.
Those were the facts in Terry, sure, but I’m not sure Terry can reasonably be read to require those facts to always be specific to the individual, else DUI checkpoints would be illegal, too (or perhaps legal, but inadmissible in court).
I’m not saying the curfew necessarily is constitutional. I am saying that whatever this case is about, it’s not going to be about whether safety or “the Constitution” wins. If it were about that, there would be nothing for the courts to decide, as the Constitution wins every time.
September 9th, 2008 at 10:41 am
I’m not a lawyer, but I was under the impression that the Constitution doesn’t win every time, at least from a textual viewpoint. Even explicitly recognized rights lose if there is a compelling governmental interest in violating that explicitly recognized right, that the law or policy violating that right is narrowly tailored, and that the law or policy is the least restrictive means for achieving the compelling governmental interest. Less fundamental aspects of the Constitution require less than even that, and the Second Amendment seems to exist in a certain legal ghetto of its own.
Portraying it as a balancing act is horribly, horribly incorrect (If I understand it properly, it doesn’t seem to matter the significance of the government interest), but stuff apparently does trump the Constitution. I’m not sure I like the scope of situations where it does, but that shouldn’t be surprising.
I’m not sure I can really agree with Michigan v Sitz — any case that leaves the “achieving the compelling interest” prong of the test up to the police is questionable at best — or for that matter that it’s as relevant as first appearances look. The older Delaware v Prose was more similar, and the underlying facts of Brown v Texas; unlike Sitz we’re talking about far more invasive searches and far more potential for discriminatory searches even within the “search everyone you see”.
September 9th, 2008 at 11:05 am
Nothing trumps the Constitution. Compelling interests, balancing tests, etc. all go to the question of what the Constitution itself does or does not require.
September 10th, 2008 at 1:54 am
Huh? If the facts are as the newspaper reported them, how can this possibly not be unconstitutional? And why should the newspaper pretend otherwise? If the facts are not as alleged, then that’s what you should be arguing, but you don’t seem to be. If people are not free to go about their lawful business without having to justify themselves to a policeman, then this is no longer the USA, and it’s time for another revolution.
Terry absolutely requires reasonable suspicion, based on “specific and articulable facts”, and merely being on a certain street, especially if one lives there, is not enough for reasonable suspicion.
As for alcohol checkpoints, they are illegal for pedestrians; the only thing that makes them legal for drivers is that there is no general legal right to drive a motor vehicle on a public road — it’s a privilege granted by the government that built and owns the road, and it can be conditioned on consent to such measures.
September 10th, 2008 at 6:48 am
One of the first tricks they teach you in MBE review is to automatically write off any answer that has the constitutionality of anything depending on whether the affected conduct is a privilege or a right. Cops can’t open your trunk without consent or probable cause. The reason they can have sobriety checkpoints is because drunk driving is friggin’ dangerous. Walking down the street drunk, but not drunk enough for that to be obvious from a distance, not so much.
If the rule in Terry and its progeny were as crystal-clear as you suggest, and there were no reason to think today’s court might view the issue differently, then it might be justifiable for a newspaper to talk about the curfew as unconstitutional rather than merely allegedly so. It still wouldn’t make sense to cast it in terms of “whether safety trumps Constitution,” though. No court would ever rule that X is unconstitutional, but uphold it anyway citing safety concerns. It just doesn’t work that way.
September 10th, 2008 at 11:12 am
DUI checkpoints must still meet the reasonableness requirement of the Fourth Amendment. Among other things, they cannot 1) be capricious (random) or 2) totalitarian (subject every driver to a check anytime, anywhere). The nutshell test is, to what extent do they inconvenience innocent drivers?
As for statutes passed under the Fourteenth Amendment’s enabling clause ….
September 10th, 2008 at 11:33 am
P.S. As for Terry, extent of the search is one more factor. Don’t tell anyone, but I was Terry-stopped a lot in my teenage years. One time, the officer felt a knife and he reached into my pocket and pulled it out. Another time, another officer felt a nickel-bag in the same pocket, squeezed it a little and kept on going. A third time, detectives just asked me my name. I reached for my ID but they didn’t care — my innocent brown eyes told them that I was telling the truth.
September 10th, 2008 at 2:52 pm
It seems to me as that’s the very thing the justices deciding in the favor of Sitz held. Admittedly, I do seem to be working from an abridged version of the Constitution that left out the various levels of scrutiny.
September 10th, 2008 at 3:33 pm
If you think the issue is that cut and dried, your abridged version of the Constitution must have left out more than the various levels of scrutiny, which is a judicial intepretation of the Constitution and not a part of the text itself. I take it your abridged version of the Fourth Amendment reads something like this:
September 10th, 2008 at 5:40 pm
You either have strange definitions of the phrase reasonable, or of “persons or things to be seized”.
September 10th, 2008 at 9:26 pm
Not at all. There’s nothing odd about applying balancing tests to determine what is or isn’t “reasonable.” Of course you may disagree with the particular test, or how it is applied in a given instance, but that’s another matter. Everyone’s not going to agree on what is or isn’t “reasonable,” but someone has to decide.
September 11th, 2008 at 2:46 am
You’d argue that, under any standard the writers of the Constitution could possibly imagine, that detaining, searching, and questioning every individual to enter a multi-block area as being a reasonable search, I’ve got a long stretch of bridge in Texas to sell you.
I’m not an originalism fetishist — these sort of compromises between safety and Constitutionally recognized and protected rights are probably the only reason the 1st amendment hasn’t been serially flipped — but the idea that it’s what the Constitution means rather than what a bunch of old lawyers decided was a good idea is pretty laughable in the face of cases like Atwater or dozens of other cases.
September 11th, 2008 at 6:49 am
The First Amendment doesn’t have a “reasonableness” element, so it’s not inherently unreasonable to go originalist on that one and argue against balancing tests there. But where a law merely prohibits unreasonable X, as opposed to prohibiting X outright, and where the law provides no further guidance as to what is or isn’t considered “reasonable,” the only plausible “originalist” reading is that the framers intended this one to be left to future judges to decide what is or isn’t reasonable.