City Journal

Richard E. Morgan
Sweeping Up After the Rights Revolution
Today’s justices won’t overturn the ‘rights revolution,’ but they could be persuaded to moderate some excesses, making a world of difference.
Winter 1995

For the past three decades, crime and disorder have plagued American citiesand the U.S. Supreme Court is partly to blame. The Court effected a "rights revolution" in the sixties and seventiesa constitutional transformation that established new rights the Constitution doesn't mention, that expanded free speech far beyond its traditional definition, and that freed individuals to sue state and local officials claiming a violation of legal rights. As a direct consequence, the Court has made it far harder for governments to enforce the law and maintain order in public spaces and institutions. Police officers, school principals, public housing managers, and other public servants now wrestle daily with convoluted legal procedures designed to limit their authority, and they know that a misstep could land them in court should they run afoul of judicially created rights. This revolution harmed life in inner cities most of all. As Justice Clarence Thomas recently observed (City Journal, Autumn 1994), "These decisions...have an enormous impact on the opportunities available to a community in solving the problems that plague the poorest of our citizens."

Critics hoped that the Reagan era's more conservative Supreme Court would roll back the rights revolution's excesses. No such thing. Although the eighties saw a slowdown in judicial creation of new rights, Reagan Court appointees Sandra Day O'Connor and Anthony Kennedy, along with Bush appointee David Souter, have proved unwilling to overturn major precedents. Together with Clinton nominees Ruth Bader Ginsburg and (probably) Stephen Breyer, they form the operational center of today's Court—a Court highly unlikely to favor major reversals. Thus all of the landmark decisions of the rights revolution will remain in force for the foreseeable future.

Even so, change for the better is not only possible but likely: every year, the rights revolution's damaging effect on American society's ability to maintain public order becomes plainer, and public concern about it grows broader, deeper, more mainstream. In response, without overruling any of the rights revolution precedents, the Court could accomplish a great deal by making modest retrenchments and modifying legal doctrines at the margins. What's more, such actions, which have an important, healthy impact on the real world, are likely to appeal to the "centrists" who control today's Court. Let me suggest six lines of argument likely to sway these centrists.

The Court should treat more seriously the commonlaw misdemeanors that are the bedrock of traditional methods of maintaining civic order. The ability of the police to keep streets, transit systems, parks, and other public spaces livable rests on a legal foundation of about half a dozen ancient commonlaw offenses that have been, in various ways, codified by states and municipalities—crimes such as disturbing the peace, disorderly conduct, use of obscene and abusive language, vagrancy, and obstruction of public ways. Over the past 30 years, the Supreme Court has struck down many such laws, making police and prosecutors reluctant to enforce those that remain on the books.

Two judicial doctrines particularly imperil these statutes: “vagueness” and “overbreadth.” Both doctrines may be wielded with circumspection and discrimination or with a heavy hand that can further enfeeble law enforcement.

The idea of vagueness derives from the due process clauses of the Fifth and Fourteenth Amendments, and it is an idea that the common law always took seriously. After all, the evil of a vague criminal statute is twofold: people receive inadequate notice that certain behavior is forbidden, and police have too much discretion in deciding how and when to apply the law.

Laws have to be clear, of course; but it is not always possible or necessary for them to be specific' which is a quite different thing. Legislatures can only address large areas of misbehavior in general terms. "Reckless driving" and "driving to endanger" are familiar examples, as are "cruelty to animals" and "neglect of children." In these cases, the ordinary use of language and common cultural experience provide sufficiently clear notice of the kinds of behavior that are illegal.

In other cases, legislatures could help matters by clarifying an old offense—for example, by changing a statute against "obstruction" to forbid "lying" in public ways. But even in this case, the Court should dismiss out of hand elaborate hypothetical arguments, smacking of medieval scholasticism, over whether sitting propped against a wall with legs extending onto the sidewalk really constitutes "lying." Instead, in timehonored fashion, the Court should judge the constitutionality of an allegedly vague law in light of the conduct to which authorities have applied it in the case at hand.

The real issue, of course, is how much discretion police on the street should exercise, always a vexing question. But we have passed (let us hope) through an era in which, among the legal elites and intellectual classes, every hand has been turned to limiting police discretion. It is realistic to urge the contemporary Court to seek finer balances.

Overbreadth is an idea that rests on the First Amendment's protection of free speech. The Court has used this concept to say that a statute that deals with utterance in broad, descriptive terms, such as "obscene and abusive language," is unconstitutional because it might conceivably be applied in ways that would limit constitutionally protected speech. By this approach, laws that can have both legitimate and illegitimate applications can never be applied at all because of the danger that someone somewhere might be intimidated ("chilled") and refrain from engaging in what would be protected speech.

Unlike vagueness, overbreadth is not a doctrine deeply rooted in our legal history, and its pernicious effects can be countered by the Court's being encouraged to take more seriously than it has done in recent years the older doctrine of "fighting words" that the 1941 case of Chaplinksy v. New Hampshire established. There Justice Frank Murphy, one of the strongest proponents of free speech to sit on the Court in the twentieth century, wrote that "there are certain well defined and narrowly limited classes of speech, the prevention and punishment of which have never been thought to raise any constitutional problem. These include the lewd and obscene, the profane, the libelous, and the insulting or 'fighting' words—those which by their very utterance inflict injury or tend to incite an immediate breach of the peace."

Much of the disorder in America's cities is the result of deinstitutionalization of the mentally ill, a process that accelerated in the midsixties and filled the streets and the parks with seriously disturbed people who are sometimes, as in the infamous case of Larry Hogue, dangerous. The Supreme Court's contribution to deinstitutionalization was quite measured and sensible, in contrast with the utopian enthusiasm of professional civil libertarians and many mental health specialists. O'Connor v. Donaldson, in 1975, held that a young man who had been adjudged mentally incompetent but never dangerous, and who was receiving no treatment, could not be indefinitely confined against his will. Addington v. Texas, in 1979, held that, given the magnitude of the "liberty interest" involved in civil commitment proceedings—since institutionalization amounted, in effect, to incarceration—due process required government to meet the standard of "clear and convincing evidence" rather than to meet the less demanding "preponderance of evidence" standard that is used in most civil lawsuits.

The problem is the way in which this new constitutional law has trickled down in state laws and regulations that make it extremely difficult to commit the dangerously mentally ill. New York provides a vivid example. In August 1994, a Manhattan jury voted to release Ronald Crumpley, a confessed killer who was, concededly, still mentally ill and dangerous, from an institution for the criminally insane. The jury felt it had no other choice because a 1981 New York State law appears to make continued incarceration possible only if the state can give positive answers to all of five interlocking questions: Has the prosecution shown that Mr. Crumpley suffers from a mental disease? Is psychiatric care or treatment essential to his welfare? Is inpatient care in a hospital necessary? Does he pose a physical danger to society? Have prosecutors shown that he does not recognize his own need for treatment?

Only to the last question did the jury answer nothat is, the State of New York had persuaded it that Crumpley was insane, dangerous, and in need of treatment and hospitalization. But the jury released Crumpley because the state had not persuaded it that Crumpley himself did not understand this.

A misunderstanding of the statute? Perhaps, but the kind of mistake the highly formalistic laws governing commitment invite. As psychiatrist Sally Satel points out (page 78), most mental health experts now agree that existing laws make it too difficult to commit those with serious mental illness. But skilled advocates resist reform, arguing that every legal jot and tittle put in place over the past 25 years is constitutionally required and therefore beyond the power of legislatures and judges to alter.

Here the Supreme Court can help by making clear that the constitutional test for civil commitment must take into account what lawyers call the "totality of circumstances." That is, no particular factor (such as the individual's understanding or lack of understanding of the need for treatment) should be decisive. Under this standard, a patient who is no longer dangerous once he has taken psychotropic drugs might be kept in a hospital if there were clear and convincing evidence (based, say, on past performance) that he would be likely to go off his medicine if not confined. Similarly, a dangerous patient would not be a candidate for release just because no effective treatment for him had been found beyond enforced custodial care. This would not involve overruling anythingonly reading the precedents sensibly.

The rights revolution also created obstacles to the enforcement of laws against serious crimes. One doctrine that deserves reexamination is the "exclusionary rule," which the Warren Court established by the famous 1962 case of Mapp v. Ohio. That decision required state courts to exclude from criminal trials evidence that police had improperly obtainedno matter how trustworthy the evidence or how small the officers' error. The Court reasoned that the only way to make police and prosecutors respect its interpretations of the Fourth Amendment's protection against unreasonable search and seizure was to punish them for violations by taking away the evidence. The exclusionary rule instantly created an inflexible national standard that replaced a multitude of statecrafted rules about the admissibility of evidence. And so today, to paraphrase justice Benjamin Cardozo, when the constable blunders, the criminal goes free.

No matter how compelling the arguments against the exclusionary rule, there is virtually no chance that the Supreme Court will overturn Mapp. But the rule need not remain quite so serious an obstacle to effective criminal prosecution as it has been. In 1984, the Court recognized a limited exception to the rule, allowing prosecutors to introduce evidence that had been seized on the basis of a defective search warrant, if the police reasonably believed the warrant was valid. The reasoning was clear: if the purpose of the exclusionary rule is to discourage police misconduct, and if officers believe they are playing by the rules, then it accomplishes nothing to exclude evidence simply because the magistrate made an error in issuing the warrant.

A similar argument could lead to a further exception, this time for searches without warrants. For warrantless searches to be constitutional at all, an investigator must have "probable cause" to believe that they will turn up evidence of a crime. In addition, the investigator must show that "exigent circumstances" made it imperative that he act on the spot rather than take the time to obtain a warrant. Probable cause and exigent circumstances are blurry legal concepts. If an officer makes a close call on one or the other, only to be overruled by a judge, does that mean that the evidence must be lost?

The televised drama of 0. J. Simpson's trial is instructive here. Legal experts interviewed on television split about evenly as to whether the officers who arrived at Simpson's gate fresh from the murder scene were right in thinking that exigent circumstances justified their warrantless entry onto Simpson's premises. Had Judge Lance Ito ruled that exigent circumstances did not exist, then under current Fourth Amendment doctrine the evidence would have been altogether lost. A more sensible approach would be to preserve the evidence unless the judge concludes that the officers acted in bad faiththat is, that reasonable, trained professionals could not have believed that exigent circumstances existed, and that the officers appeared to have resorted to such an argument only as a pretext to obscure their own carelessness or uncertainty about probable cause. There is a great difference between an officer making a judgment call and an officer cooking up a story to excuse his going where he knew he had no right to be. Such an approach properly places the burden of demonstrating a goodfaith mistake on the police, but if their position proves plausible, the evidence need not be excluded. The exclusionary rule would remain in place for the truly lawless law enforcers who moved the Court to adopt the rule in the first place, without senselessly penalizing the community by sacrificing trustworthy evidence.

The Court could similarly adopt a more reasonable view of what constitutes "reasonable suspicion." To understand how this concept can constrain law enforcement, consider a creative proposal that James Q. Wilson put forth in a recent New York Times Magazine essay. Since conventional gun control strategies are ineffective at combating urban violence—most of the weapons used are illegally acquired—Wilson suggests that police adopt an interventionist style of patrol, in which officers would approach and stop people in public places who they thought might be armed and frisk them for weapons. Right now, Wilson argues, most patrol officers don't really bother to look for illegal firearms. If they did so, it could have an enormous deterrent effect.

Eminently sensible, Wilson's proposal nevertheless could be problematic under current law. The Supreme Court's interpretation of the Fourth Amendment, beginning with the 1968 case of Terry v. Ohio, allows an investigative stop (very brief detention accompanied by a frisk for the protection of the officer) only if the officer has "reasonable suspicion" to believe that the suspect has committed or is about to commit a crime. Earl Warren, in one of the more mysterious utterances from the constitutional literature of the sixties, explained in the decision that reasonable suspicion must be based on "a specific and articulable fact," and, accordingly, judges have tended to set the standard for reasonable suspicion rather high. For instance, the fact that someone displays characteristics that match a police profile of, say, a drug courier or terrorist and is in a highrisk area (such as the Miami airport) is not enough to establish reasonable suspicion. The law is somewhat ambiguous, but it appears to require some individualized basis for the suspicionthat is, that the person being stopped has done something that justifies the stop.

But one may hope for improvement in this legal doctrine. The constitutional baseline is, after all, "reasonableness," and a proposal like Wilson's, entailing only limited invasions of privacy, is luminously reasonable. Law enforcement agencies should try to persuade the Court to approve modestly more interventionist patrol tactics, recognizing that, as a practical matter, a combination of appearance, demeanor, and setting may be powerfully suggestive to an experienced officer. Surely a policeman needn't have to testify to a telltale bulge or a flash of sunlight on nickel finish before approaching a suspicious person in public.

The rights revolution expanded procedural protections not only for suspected criminals but also for recipients of government benefits. justice William Brennan's 1970 opinion in Goldberg v. Kelly held that the due process clause of the Fourteenth Amendment requires that individuals receive a formal hearing before losing their welfare payments—or, by extension, other government benefits—for violating the rules of the program. Brennan argued that welfare, as a government conferred entitlement, is a form of property that the government cannot constitutionally take away without due process of law. In quick succession, the Court extended this logic, establishing elaborate hearing requirements for firing or demoting a government employee, suspending or revoking a driver's license, or disciplining a prisoner, parolee, or public school student.

In the abstract all this may sound benign enough. But consider it from the perspective of an enforcing authority, literally "on the spot." Imagine the manager of a public housing project faced with a problem of unruly tenants. It is the threat of eviction that gives force to the manager's efforts to persuade noisy, dirty, or socially hostile tenants to modify their behavior. If eviction is hedged about with procedural requirements (all of which mean time, money, and paperwork), the ordermaintaining authority of the manager is dramatically reduced. As a result, residents who follow the rules are left at the mercy of the unruly.

After its burst of enthusiasm for extending procedural due process to all sorts of administrative encounters between government and individuals, the Supreme Court drew back modestly, by giving more serious consideration to the question of when an entitlement existed. (For example, it rejected a state college professor's claim he had a property interest in the renewal of his one-year contract after it expired.) The Court should exercise even greater care in defining government benefits as property, coupled with equal care in deciding what process is due. Procedure, after all, comes in all shapes and sizes, and one can envision very simple notice and rightof-reply requirements that would not have the paralyzing effect on public authority that evidentiary hearings have. This kind of circumspection does not require reconsideration of Goldberg v. Kelly. But fewer required adversary proceedings before governmental action would mean more vigorous government.

Even more than the actual legal restrictions imposed by Goldberg was the message sent to publicsector managers: Keep your heads down. Many of our everyday order maintainers are riskaverse peopleschoolteachers and principals, for instance—and it has not registered in their occupational subcultures that the Court has already backed off a bit. Instead, they are impressed by such things as the extreme difficulty of applying any discipline to a student classified as "special" under the ponderous Developmentally Disabled Assistance and Bill of Rights Act of 1975. And they understand all too well that if someone whom they offend can argue, even implausibly, that they have violated a requirement of either a Supreme Court decision or a federal statute, they can be sued.

This brings us to that mother of debilities that hamstring operatinglevel public officials, a remnant of an old Reconstructionera statute known as Section 1983. Originally put in place to deal with the systematic denial by state officials of the basic civil rights of blacks, Section 1983 allows a person to sue someone who, "under color of state law," deprives him of rights secured by the Constitution or laws of the United States. Because this carried with it the obvious danger of turning every grievance against any state or local government into a federal case, the Supreme Court, for 90 years, interpreted the original language, dating to 1871, strictly.

All that changed with Justice Douglas's opinion in Monroe v. Pape in 1960. Here the Court held that the phrase "under color of law" could apply not just to official acts of the state but to isolated acts of misbehavior by state employees—even acts that violated state law and for which a state remedy existed. Subsequent decisions allowed plaintiffs to collect damages from municipal treasuries for employee misbehavior. By making it so easy to sue at the same time as it was creating a plethora of new rights, the Court created a legal bonanza in which state prisoners now rush to federal courts over lost mail or dull food, parents of unruly schoolchildren bully school officials, and incompetent or dishonest government employees endlessly avoid discharge or extort porcine severance settlements.

The result: the diminished effectiveness of officials from school board members to local clam wardens, who now must consider federal civil liability in any decision that will adversely affect anyone—a far cry from protecting the freedmen of the South against local officials who were systematically denying them federally protected rights according to an explicit or customary public policy. While individual justices have observed over the years that Section 1983 was never intended to provide a federal forum for all manner of claims against state officials, successive Court majorities have taken us far down the road toward that result. There is ample room, therefore, for the Court to make a course correction.

Nothing so radical as overruling Monroe v. Pape is needed. But state and local governments should urge two lesser adjustments. First, the Court should declare that Section 1983 suits can be brought only on account of a pattern of actions that could plausibly be characterized as state policy. Second, the Court should hesitate to allow Section 1983 actions based on claims that farfetched property or liberty "interests" are fundamental constitutional rights. A state or local government's actions should become a federal case only if basic constitutional or statutory rights are at stake.

The suggestions offered here are realistic for this Supreme Court—a series of adjustments rather than dramatic change. Not only would such relatively small alterations in emphasis have salutary legal impacts; they could perform an important signaling function as well.

Consider an example: Chief Justice Warren Burger's opinion for the Court in the 1973 obscenity case Miller v. California. In 1957, the Court had established a strict test that made it very difficult for government officials to show that material was legally obscene and therefore unprotected by the First Amendment. For the next decade and a half, the sex industry proliferated. Burger's 1973 opinion overruled nothing; it simply finetuned the legal definition of obscenity by allowing for some local variation in one element of the test. Under Miller, material may be judged obscene if it exceeds "contemporary community standards" of explicitness: what is acceptable in San Francisco need not be in Savannah.

Burger did not return the Court to anything like the definition of obscenity that had existed before 1957. But the Miller decision had considerable impact. Some jurisdictions moved to enact ordinances tracking Miller v. California; most did not. But there was a subtle shift in the relationships between the pornographers and public authority. No longer could one assume that the purveyor would always win. Now the legal system was creating incentives to circumspection, at least in those communities that cared about the problem.

Obscene movies are still around, of course—mostly in discreet containers in the back rooms of video stores. But the sex industry is considerably less obtrusive than it was in the late sixties and early seventies. This did not result solely from a decision of the Supreme Court; other political and technological factors also played a role. Still, no one who remembers the pornography industry at its blatant and bawdy worst can think that Miller v. California did not help tame and contain it.

Many of the cases that made up the rights revolution were wrongly decided on dubious constitutional grounds. In the long run, one may hope the Supreme Court will reverse some of these precedents, though assuredly, given the philosophical composition of the current Court, drastic changes won't come soon. But even marginal improvements like those I have suggested would go far to signal that the exercise of authority by public officials is not automatically suspect in America—that we as a nation can affirm and defend bounded spheres of discretion for the school principal and the beat cop. Such a signal would reverberate: it would shift the culture as well as the laws. And by restoring the authority and confidence of public officials who deal directly with crime and disorder, such Supreme Court actions would allow Americans to create stronger, safer, more civil communities.

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