The Windmills of the Academic Mind

Akhil Reed Amar has long had the reputation of being a liberal. And so it it with some perturbation that, in viewing reactions to Maryland v. King, discussed here, I read this half-baked drivel:

DNA is already revolutionizing law enforcement. The ability for police to use cheek swabs of arrestees rests on a threadbare majority. The closeness of the vote, and the unusual coalitions on either side, suggest that the matter is far from settled. Justice Samuel A. Alito Jr., who was part of the majority, rightly called the case, Maryland v. King, “perhaps the most important criminal procedure case that this Court has heard in decades.”

As prosecutors, police agencies and civil libertarians consider the ruling’s implications, Justice Scalia’s stark dissent — and the fact that President Obama’s two appointees to the court so far agreed with it — makes it worthy of scrutiny, even if he was on the losing side. His argument is deeply flawed, because he did not get his history quite right.

Justice Scalia summarized his scathing dissent from the bench — a rare act that signals sharp disagreement. His opinion opened with these lines: “The Fourth Amendment forbids searching a person for evidence of a crime when there is no basis for believing the person is guilty of the crime or is in possession of incriminating evidence. That prohibition is categorical and without exception; it lies at the very heart of the Fourth Amendment.”

But the Fourth Amendment’s text is not nearly so simple as he makes it out to be. It merely requires that all searches and seizures be not “unreasonable.” Its words do not distinguish between intrusions seeking “evidence of crime” and other sorts of intrusions — say, to collect revenue, or preserve public safety.

OK, seriously? Watch the conjuring trick at work here:

STEP 1: Amar is setting an artificially high standard here--he is stripping "unreasonable" of any context, and requiring Scalia (and Ginsburg, Kagan and Sotomayor)to find a specific statement form a specified founder, all the while assuming that he cannot, even though,

STEP 2: The Supreme Court uses common law reasoning to develop constitutional doctrine, especially in construing texts like the Fourth Amendment which are not, as Amar correctly notes, self-explanatory. In the Fourth Amendment context, for nearly half a century, the leading case of Katz v. United States (1967) has long set out the template:

Searches conducted without warrants have been held unlawful "notwithstanding facts unquestionably showing probable cause," Agnello v. United States, 269 U.S. 20, 33, for the Constitution requires "that the deliberate, impartial judgment of a judicial officer . . . be interposed between the citizen and the police. . . ." Wong Sun v. United States, 371 U.S. 471, 481-482. "Over and again, this Court has emphasized that the mandate of the [Fourth] Amendment requires adherence to judicial processes," United States v. Jeffers, 342 U.S. 48, 51, and that searches conducted outside the judicial process, without prior approval by judge or magistrate, are per se unreasonable under the Fourth Amendment [n18] -- subject only to a few specifically established and well delineated exceptions.

Now, as to searches of biological data--drawing of blood, for example, to test for alcohol in the wake of a drunk driving arrest--the Court has long found that such searches can only be justified when exigent circumstances, such as the deterioration of evidence of intoxication, made getting a warrant impracticable--an exception which the Court found just this year in Missouri v. McNeely is not a given in every case due to the greater facility in obtaining warrants as well as the increased sensitivity of blood testing. In particular, the Court in McNeely emphasized that the warrant requirement

applies to the type of search at issue in this case, which involved a compelled physical intrusion beneath McNeely’s skin and into his veins to obtain a sample of his blood for use as evidence in a criminal investigation. Such an invasion of bodily integrity implicates an individual’s 'most personal and deep-rooted expectations of privacy.' Winston v. Lee, 470 U. S. 753, 760 (1985); see also Skinner v. Railway Labor Executives’ Assn., 489 U. S. 602, 616 (1989).

Notably, the Court acknowledged that "blood testing is commonplace in society and typically involves virtually no risk, trauma, or pain," but nonetheless found that this does not diminish the Court's "recognition that any compelled intrusion into the human body implicates significant, constitutionally protected privacy interests."

STEP 3: Nor does the analogy to fingerprinting resolve the question; where a compelled intrusion into the body raises heightened Fourth Amendment concerns, the deposit of prints has been treated as raising less concerns; even then, it has become a regularly established incident to an arrest, which does not contravene the reasonable expectations of privacy, as long as the arrest is pursuant to a warrant. More here. That line may seem paper thin, but Scalia's argument is based on the common law of the Fourth Amendment, unpacking the meaning of "unreasonable" over two centuries. Amar, by slicing away this well-established approach to broad constitutional terms (dating back to Marbury v. Madison), tries to make Scalia look unreasonable.

STEP 4: Amar never addresses the opinion's reasoning, just the result. He likes the latter, but as pointed out eloquently in Scalia's dissent, nobody really believes the former--that the reason for the DNA sample is to identify the suspect. Of course it's not; it's to ship over to the Cold Case Unit, and see if we have any matches. The fact that Amar is comfortable with that outcome as a good thing doesn't make the search reasonable in terms of any standard criteria for determining the reasonableness of searches and seizures, oh, ever. That fact is rather supported by the fact that the only reason relied on by the majority is a transparent falsehood, never a good building block for constitutional analysis.

STEP 5: Ask where the dispositive quotes from the Framers are. Yeah, Scalia didn't need them, because he had the Court's own jurisprudence to build on, but c'mon, Tony, you're the history buff, Amar taunts, setting a new test.He should check out John Adams. (In fact, he probably has, since a part of the linked article takes Amar to task, quite properly, for his radically indeterminate Fourth Amendment analysis, which eschews any kind of standard other than incident-specific reasonableness, discerned from an after the fact standpoint.)

What is Amar really up to here? I'd suspect that his real bugbear is Scalia's (admittedly somewhat tattered by now) originalism--his resort to historical argument to address an ambiguity in the text. But the problem here is that Scalia's dissent isn't particularly originalist; it's a classic common law analysis, as John Jay Osborn describes in his 1979 novel The Associates:

Back in the dusty pages of a volume from 1899, you'll find an egg, ready to hatch, some judge with a new idea. In 1900, you'll find a case where the idea has broken out of its shell. It's sitting there, a sentence, words, a definitive statement, a rule. You catch glimpses of the rule as it flashes through the cases. . . . As it flashes through the cases, you see the rule grow or diminish. Say it grows. The descriptive side enlarges. More and more activity comes under the kind of conduct it outlines. "Do not discriminate." All right, what's discriminate, against whom, for what reasons? You start maybe with blacks, and a hundred years later everyone is included in the description--do not discriminate against the handicapped, women, homosexuals, children, the aged

This bog-standard common law reasoning Osborn describes is exactly what Scalia is engaged in here. It's routine, not remotely controversial.

Amar may be serving his own project of arguing that the Fourth Amendment has no answers for us, only questions. That does not, however, readily translate into a constitutional right--merely an unending "intellectual feast" that provides no guidance for law enforcement or protection for the citizenry. It's no way to do law, however interesting the seminar might be. Scalia has this one right.