Perspectives on the Fourth Amendment Anthony G
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University of Minnesota Law School Scholarship Repository Minnesota Law Review 1974 Perspectives on the Fourth Amendment Anthony G. Amsterdam Follow this and additional works at: https://scholarship.law.umn.edu/mlr Part of the Law Commons Recommended Citation Amsterdam, Anthony G., "Perspectives on the Fourth Amendment" (1974). Minnesota Law Review. 848. https://scholarship.law.umn.edu/mlr/848 This Article is brought to you for free and open access by the University of Minnesota Law School. It has been accepted for inclusion in Minnesota Law Review collection by an authorized administrator of the Scholarship Repository. For more information, please contact [email protected]. Perspectives On The Fourth Amendment Anthony G. Amsterdam* This Article is the text of the Oliver Wendell Holmes Lec- tures, delivered by Professor Amsterdam at the University of Minnesota Law School on January 22, 23 and 24, 1974. Oliver Wendell Holmes, Jr., left a large part of his estate to the United States at his death in 1935. By Act of Congress in 1955, the disposition of the property was entrusted to a Permanent Committee, which, among other projects, sponsors the annual Holmes Lectures by a distinguishedlegal scholar. I. INTRODUCTION: OF JUSTICES, THEIR CRITICS, AND THEIR MORE IMPORTANT VEXATIONS For clarity and consistency, the law of the fourth amend- ment is not the Supreme Court's most successful product. In Mr. Justice Frankfurter's graceful phrase, "[t]he course of true law pertaining to searches and seizures... has not... run smooth."' Professor LaFave, who borrowed that phrase to title an article, observed that "[n]o area of the law has more be- deviled the judiciary, from the Justices of the Supreme Court down to the magistrate .... '2 In a badly fractioned recent decision, one of the few passages that commanded a majority of the Court conceded "it would be nonsense to pretend that our decision today reduces Fourth Amendment law to complete or- der and harmony.' 3 A subsequent article concluded simply 4 that "[t] he fourth amendment cases are a mess!"' In one sense, all of these critical comments--even the last- are understatements. During many years as a fourth amend- ment buff, I have read Supreme Court search and seizure cases with the righteous indignation that only academics can consis- tently sustain. (Dissenting Justices occasionally achieve it but, with the acquisition of a few additional votes, they tend to lapse from skeptics to believers.5 ) Over the years, when I have heard tax lawyers complain that the Supreme Court should be relieved of jurisdiction over tax cases because the Court has never understood the tax laws, I have especially rel- ished my standing as a fourth amendment buff. It is seldom given to mortal man to feel superior to a tax lawyer. With what gratifying condescension, then-how like Captain Ahab's ghost hearing trout fishermen prattle of the big one that got - * Professor of Law, Stanford Law SchooL MINNESOTA LAW REVIEW (Vol. 58:349 away-have I listened to the tax lawyers' criticisms of the Su- preme Court! Yet I think that the Court's critics-and myself, when I am in this mood-are not entirely fair to the Court. When we fault the Court for its lack of clarity and consistency, we are inclined to forget that these are virtues in whose practice we have every advantage over the Justices. I speak not only of such mundane but vital advantages as leisure for reflection and free- dom to go outside the records of particular cases. Three basic constraints bind the Court that do not bind its critics. These constraints make it far more difficult for the Court than for its critics to produce "a single coherent analytical framework" for decisions that the Court must make. But they enhance the func- tioning of the Court in other, equally important dimensions. First, the Court is a committee. In various aspects of our social organization, decisionmaking power is given to commit- tees rather than to single men because a committee is less likely to be despotic than a single man, and more likely than a single man to ponder all relevant considerations before coming to judg- ment. These characteristics of a committee are indispensable to the role that the Supreme Court plays in American govern- ment. But they have their price. The wise joke that defines a camel as a horse drafted by a committee only begins to describe that price. Insofar as the Court observes-for excellent reasons-"series of rules under which it has avoided passing upon a large part of all the consti- tutional questions pressed upon it for decision,"7 and particu- larly the rule against deciding "constitutional issues . on a broader basis than the record . imperatively requires," the Court is in the unenviable posture of a committee attempting to draft a horse by placing very short lines on a very large drawing-board at irregular intervals during which the mem- bership of the committee constantly changes. In addition, un- like most committees, the Court is expected to write a reasoned opinion explaining the placement of each of these short lines without unduly extending the lines so as to make perfectly comprehensible why, in its judgment, the resulting camel is a horse. You will appreciate, I think, that I question the entire fairness of a critic who rides merrily up upon his own horse and deprecates the Court's camel by comparison. Second, the Court cannot always state openly all of the considerations that affect its decisions, For example, I am con- 1974] FOURTH AMENDMENT vinced that the major force shaping the evolution of Supreme Court confession cases from Brown v. MississippiO through Haynes10 and Escobedoll to Miranda2 was distrust of the fact- finding propensities of state trial courts.13 Doubtless, the same distrust accounts for the unexplained and intellectually unsat- isfactory "discretion" that Townsend v. Sain 14 allowed to federal habeas corpus courts to conduct new evidentiary hearings not- withstanding prior state-court hearings meeting every objective test of fairness. Yet obviously the Supreme Court could not talk about its distrust of state-court factfinding in these cases. Both decorum and the necessity of encouraging better perform- ance by state judges in the enforcement of federal rights for- bade the Supreme Court Justices "to put their brethren of the state judiciary on trial."'1 5 Instead, the Court responded to perverse factfinding by ex- panding constitutionally protective legal rules in a manner that made the suspect facts irrelevant. It did not announce outright that its reason for disregarding the facts was their susceptibility to manipulation by triers of fact who were not to be trusted. It simply treated apparently relevant facts as irrelevant. In so doing, of course, it exposed itself to the scourges of critics fore- armed with Henry Friendly's lashing quip about "the domino method of constitutional adjudication ...wherein every explan- atory statement in a previous opinion is made the basis for ex- tention to a wholly different situation."10 The quip is a mas- terful metaphor but betrays a certain lack of appreciation of the art of dominoes. Skillful domino players have a prescient pur- pose in the moves they make, however arbitrary these may seem to an observer lacking knowledge of their hidden pieces or their game plan. Third, the Justices of the Supreme Court, unlike their critics, bear the responsibility of decision. People who bear that respon- sibility soon learn that the welter of life is constantly churning up situations in which the application of clear and consistent theories would produce unacceptable results. The results are unacceptable not because of mere personal or emotional aver- sion to them, but because the case has stirred some profoundl countervailing principle. The contours of the principlen-d its rea fs to prevailing theories may be still obscure; it may lack a name, a nexus, or it may go forth in the guise of something it is not. Nonetheless, it speaks imperatively to the case and wrests it from the grip of all the theory that has been before. At the first stirrings of such principles, critics may postpone MINNESOTA LAW REVIEW [Vol. 58:349 their articles, change their topics, take a sabbatical, or other- wise procrastinate till muddy waters clear. The Supreme Court ordinarily must decide the case before it. It must do so even though it is not prepared to announce the new principle in terms of comparable generality with the old, still less to say how much the old must be displaced and whether or how the old and new can be accommodated. If the Court declines to give birth to the new principle, it will never acquire the experi- ence or the insight to answer these latter questions. If it at- tempts to answer them at the moment of the new principle's birth, it is not likely to answer them wisely. Clarity and consis- tency are desirable, certainly, to the extent that they can be achieved. But the temptation to achieve them by ignoring the complex and the unpredictable quality of real problems is for- tunately less beguiling to Justices perennially faced with re- sponsibility for solving those problems than to the Justices' academic critics. I make these points at the outset to explain both the objec- tives and the tenor of my lectures. What I should like to do dur- ing these three days is not to articulate any single, comprehensive theory of the fourth amendment. It is rather to identify and to discuss a number of basic issues that complicate the develop- ment of a single, comprehensive fourth amendment theory. Even for a lone theoretician-for a monarchal, everlasting fourth amendment enforcer-the complications would render a coher- ent construction of the fourth amendment exceedingly difficult.