America's Unwritten Constitution: The Precedents and Principles We Live By (88 page)

21
  For the state figures, see Brief for Petitioner Clarence Earl Gideon, Nov. 21, 1962, 1962
WL
115120, 29–31;
McNeal v. Culver
, 365 U.S. 109, (1961) 120–121 (Appendix to the opinion of Douglas, J., concurring). The five outlying states were Alabama, Florida, Mississippi, North Carolina, and South Carolina.

22
  
Blackstone’s Comm
., 4:352 (emphasis added).

23
  
Regina v. Leatham
, (1861) 8 Cox Crim. Cas. 498, 501 (Q.B.) (Crompton, J.). On the absence of an exclusionary rule in state courts early on, it should be kept in mind that while the federal Bill of Rights did not directly apply against the states prior to the Civil War, most state bills of rights featured language paralleling the federal Fourth Amendment’s ban on unreasonable searches and seizures.

24
  The classic rebuttal is that the exclusionary rule does not truly benefit guilty defendants or create any windfall but merely restores the status quo ante: Had the cops followed the Constitution and refrained from the search, no evidence would have been found, and the exclusionary rule simply puts the defendant in the position he would have occupied had the Constitution been obeyed. This rebuttal ignores all the ways in which the evidence surely would have surfaced or might well have surfaced even had no Fourth Amendment violation ever occurred. In other words, there is a massive “causation gap” in the exclusionary rule as currently practiced. For example, if police could have obtained a needed warrant but did not, today’s judiciary excludes the evidence even though it would have been easy enough to get the warrant and with the warrant the evidence would have been discovered just the same. Although the Court has allowed in some evidence on an “inevitable discovery” exception to the exclusionary rule, the exception is currently far too narrow in application, leading to boatloads of exclusionary windfalls that make guilty defendants much better off than they would have been had the police fully complied with the Fourth Amendment.

25
  See
Wolf v. Colorado
, 338 U.S. 25, 33–34 (1949).

26
  
Elkins v. United States
, 364 U.S. 206, 224–225 (1960);
Mapp v. Ohio
, 367 U.S. 643, 651 (1961).

27
  Sometimes, the Constitution vests a defendant with a supplemental implicit right to do the opposite (testify) of what he has an explicit right to do (decline to testify). Similarly, a defendant has an explicit right to legal counsel and an implicit right to forgo all counsel and represent himself. He has an explicit right to compel and cross-examine witnesses and an implicit right to decline to do so. But not all of his explicit criminal-procedure rights are matched by supplemental implicit rights to the opposite thing. For example, a defendant has a constitutional right to a jury trial, but no constitutional right to insist upon a bench trial. Nor does he have an implicit right to an unspeedy trial or a nonpublic trial. Why the different standards for different rights when the Sixth Amendment’s text does not clearly signal these differences?

         
By now, the answer should be clear: The text must be read against various background legal principles derived from history, structure, spirit, justice, and common sense. In the domain of criminal procedure, for example, some rights are rooted in a vision of defendant autonomy and are thus best understood as giving each defendant a constitutional option to choose X or not-X. Other rights are not pure autonomy rights of the defendant alone, and thus are not best read to entail a defendant’s right to do the opposite thing. The people themselves—members of the general public apart from the defendant—have implicit constitutional rights to, or legitimate interests in, public trials,
speedy trials, and jury trials. Hence these areas are not governed simply by the preferences of the defendant.

28
  On assembly, see Amar,
Bill of Rights
, 26–32. On Fifth Amendment immunity, see Amar,
CCP
, 65–66. Douglas’s reliance on the Fifth Amendment self-incrimination clause built upon earlier cases that tried to read the clause as intimately interrelated with the Fourth Amendment. In particular, Douglas cited the Court’s then-recent decision in
Mapp v. Ohio
, which had relied on both the Fourth and Fifth Amendments, and quoted
Mapp’s
explicit affirmation of “a “right to privacy, no less important than any other right carefully and particularly reserved to the people.”
Griswold v. Connecticut
, 381 U.S. 479, 484–485 (1965) (quoting
Mapp v. Ohio
). For more discussion of this judicial attempt to fuse the Fourth and Fifth Amendments, and analysis of the basic errors of this effort, see Chapter 4.

29
  
Poe v. Ullman
, 367 U.S. 497, 554–555 (1961) (Harlan, J., dissenting). In
Griswold
, Justice Harlan in effect incorporated by reference his
Poe
opinion. See
Griswold
, 381 U.S. at 500 (Harlan, J., concurring in the judgment).

30
  
Griswold
, 381 U.S. 479, 481–482 (1965). For more on
Dred
and
Lochner
as
negative
elements of America’s symbolic Constitution—high-profile cases that help define the boundaries of modern American constitutional discourse by exemplifying what faithful interpreters should
not
say or do—see Chapter 6.

31
  See Amar,
Bill of Rights
. See also infra Chapter 4, text accompanying nn. 16–2.

32
  See Amar,
Bill of Rights
, 171–173.

33
  See, e.g,
McDonald v. City of Chicago
, 130 S. Ct. 3020, 3091–3092 (2010) (Stevens, J., dissenting); John Paul Stevens, “The Bill of Rights: A Century of Progress,”
U. of Chicago LR
59 (1992): 13, 20; John Paul Stevens, “The Freedom of Speech,”
Yale LJ
102 (1993): 1293, 1298–1299.

34
  According to the Eisenstadt Appellee Brief: “The prescription and use of contraceptive devices, at least under some circumstances, is now lawful in all fifty of the states. More significant [to] the issue here, in many states and localities the government operates positive programs to make contraceptive devices available for persons desiring to use them.” 1971 WL 133617.

35
  
Lawrence v. Texas
, 539 U.S. 558, 562–575 (2003) (“Freedom extends beyond spatial bounds. Liberty presumes an autonomy of self that includes freedom of thought, belief, expression, and certain intimate conduct.…Equality of treatment and the due process right to demand respect for conduct protected by the substantive guarantee of liberty are linked in important respects, and a decision on the latter point advances both interests.… When homosexual conduct is made criminal by the law of the State, that declaration in and of itself is an invitation to subject homosexual persons to discrimination both in the public and in the private spheres. The central holding of
Bowers
…demeans the lives of homosexual persons.”).

36
  See Laurence H. Tribe,
Abortion: The Clash of Absolutes
(1992), 13; for additional tallies, see Friedman,
Will of the People
, 297; Rosen,
The Most Democratic Branch
, 92–93.

37
  
Washington v. Glucksburg
, 521 U.S. 702, 710–711 (1997) (citations and footnotes omitted).
See also Michael W. McConnell, “The Right to Die and the Jurisprudence of Tradition,”
Utah LR
(1997): 665.

38
  
Gonzales v. Raich
, 545 U.S. 1 (2005).

39
  
DHRC
, 15:199 (Noah Webster, writing as “America,”
N.Y. Daily Advertiser
, Dec. 31, 1787).

40
  
Annals
, 1:759–760 (Aug. 5, 1789).

41
  For documentation of the expected progressivity of taxation under this amendment, see Amar,
ACAB
, 408–409.

42
  
Lawrence v. Texas
, 539 U.S. 558, 569–570 (2003).

43
  See
Storing’s Anti-Fed
., 3:58, 61 (“Essay of a Democratic Federalist”).

44
  
Entick v. Carrington
, 19 Howell’s State Trials 1029, 1066 (C.P. 1765); ibid., 1063;
Wilkes v. Halifax
, 19 Howell’s State Trials 1406, 1408 (C.P. 1769);
Beardmore v. Carrington
, 19 Howell’s State Trials 1405, 1406 (C.P. 1764), 95 Eng. Rep. 790, 793–794.

45
  Quoted in
Miller v. United States
, 357 U.S. 301, 307 (1958).

46
  On ideas of houses and homesteads in the 1860s, see Homestead Act of 1862, 12 Stat. 292; Eric Foner,
Reconstruction: America’s Unfinished Revolution
, 1863–1877 (1988), 70–71.

47
  Joan Williams, “The Rhetoric of Property,”
Iowa LR
83 (1988): 277, 326.

48
  See Amar,
Bill of Rights
, 62–63, 267; Laurence H. Tribe,
The Invisible Constitution
(2008), 190. On the way in which this amendment was, even at the Founding, understood as connected to sexual privacy issues, see, e.g., Robert A. Gross, “Public and Private in the Third Amendment,”
Valparaiso U. LR
26 (1991): 215, 219 (quoting colonist expressing hostility to Parliament’s Quartering Act placing soldiers “abed” with America’s “Wives and Daughters”). Note that an early version of Professor Tribe’s argument linking the Third Amendment to issues of domestic privacy occurred in his oral argument in the 1986 sodomy case of
Bowers v. Hardwick
—a case that rejected Tribe’s approach but that was later famously reversed in
Lawrence v. Texas
.

49
  
Griswold v. Connecticut
, 381 U.S. 479, 484–485 (1965). At this precise point in his opinion, Douglas also quoted earlier Court language explicitly building on the proto-privacy reasoning of
Entick v. Carrington
, a case discussed at text accompanying n. 44. For more on
Entick
, see Chapter 4, text accompanying nn. 41, 46–47.

50
  
Poe v. Ullman
, 367 U.S. 497 (1961). See also
Griswold
, 381 U.S. at 500 (Harlan, J., concurring in the judgment) (reaffirming his views as expressed in
Poe
). For a recent reminder of the importance of Harlan’s analysis, see Tribe,
The Invisible Constitution
, 189–190. For a more general analysis of the kind of argument Harlan here exemplifies—in which the constitutional interpreter identifies the constitutional “ethos” standing behind a particular patch of constitutional text—see Bobbitt,
Constitutional Fate
, 142–143. Note also how Harlan’s claim that Connecticut’s contraception law offended constitutional values even in the absence of a “physical intrusion” foreshadowed Harlan and the Court’s ultimate move in Fourth Amendment law away from physicalist ideas of trespass and toward a broader privacy approach in the 1967
Katz
case. See text accompanying n. 43.

51
  Seen from this perspective, Justice Kennedy’s opinion in
Lawrence
would seem more faithful to the paradigm-case method championed by Yale professor Jed Rubenfeld—
with
Griswold
functioning as a key paradigm and a landmark case—than Rubenfeld himself recognizes. See Jed Rubenfeld,
Revolution by Judiciary: The Structure of American Constitutional Law
(2005), 16, 184–190.

52
  In the Fourth Amendment case law, see, e.g.,
Payton v. New York
, 445 U.S. 573 (1980) (generally requiring warrants for home arrests, but not for arrests outside the home);
United States v. Dunn
, 480 U.S. 294 (1987) (reaffirming and defining special protection for curtilage around home);
Kyllo v. United States
, 533 U.S. 27, 38 (2001) (demonstrating special sensitivity to high-tech surveillance of homes, especially of bathrooms and bedrooms, and stressing that the high-tech search technique at issue would enable the government to determine “at what hour each night the lady of the house takes her daily sauna and bath—a detail that many would consider ‘intimate’”). On First Amendment rights at home, see
Stanley v. Georgia
, 394 U.S. 557 (1969). On the rights of parents to home-school children, cf.
Meyer v. Nebraska
, 262 U.S. 390, 399 (1923) (recognizing a constitutionally protected right to “establish a home and bring up children”);
Pierce v. Society of Sisters
, 268 U.S. 510, 534–535 (1925) (reaffirming that “under the doctrine of
Meyer v. Nebraska
, [there exists a] liberty of parents and guardians to direct the upbringing and education of children under their control”);
Wisconsin v. Yoder
, 406 U.S. 205, 217 (1972) (exempting Amish children from compulsory secondary-education laws in a context in which “modern compulsory secondary education in rural areas is now largely carried on in a consolidated school, often remote from the student’s home and alien to his daily home life”). Note that both
Meyer
and
Pierce
were prominently invoked in Justice Douglas’s opinion for the Court in
Griswold
, 381 U.S. at 481–483. On the rights of an extended family to live together as one household, see
Moore v. City of East Cleveland
, 431 U.S. 494 (1977). On the right of a homeowner to keep a gun at home, see
District of Columbia v. Heller
, 554 U.S. 570 (2008);
McDonald v. City of Chicago
, 130 S. Ct. 3020 (2010); cf.
Semayne’s Case
, (1604) 77 Eng. Rep. 194 (K.B.) 198; 5 Co. Rep. 91 a, 93 a (“The house of every one is his castle, and if thieves come to a man’s house to rob or murder, and the owner or his servants kill any of the thieves in defense of himself and his house, it is no felony and he shall lose nothing”).