In 2006 three Duke University students and lacrosse players were accused of rape by a black stripper named Crystal Mangum. Even though two of the students had rock-solid alibis for when the assault supposedly occurred, they were all indicted. After months of travesty, the accusations were revealed as outrageous lies. What then did the lynch-itchy crowd say? Next to nothing.

Lawsuits have surrounded the Duke lacrosse rape case since 2007. Three of them, taken collectively, constitute one of the most significant political and legal battles of our time. What have you heard of them? Next to nothing.

The Original Duke Case

Three young men were pitted against the entrenched corruption of a court system, an ambitious district attorney, a police department, and the left-biased academia to whom they had entrusted their futures. While DA Michael Nifong hid evidence and Duke University paid for an ad in which 88 faculty members denounced the accused, self-proclaimed civil rights leaders such as Jesse Jackson played the race card whenever Mangum’s shifting story was questioned.

All the students had on their side was truth, the support of family and friends, and the unflagging analysis of a handful of bloggers. Truth won.

But the win is being reversed by silence. Despite the three-ring circus that has ensued since charges were dropped, the normally scandal-hungry media remains mute. Those who cried, “Hang them now; try them later!” have moved on without apology.

If the current struggle to procure justice were allotted one-tenth the attention given to the false charges, the Duke case would shine a badly needed spotlight on some of the worst institutional wrongs in our society.

When the criminal case crumbled spectacularly, most people assumed the matter was over; after all, there was little in the media to suggest otherwise. Those few who still followed the case probably assumed that Nifong’s disbarment was the final chapter.

But from the moment all charges were dropped on April 11, 2007, those victimized by Duke University and the Durham police department have been seeking remedies for the burlesque of justice they endured. The victims include more than the three indicted students. For example, in 2010 ex-lacrosse coach Mike Presser settled a slander suit against Duke. Presser, who led the Duke team to national renown, was pushed out by the administration shortly after the accusations arose.

The media silence continued, even regarding the slow-motion train wreck that became Crystal Mangum’s life. She has been arrested on charges ranging from arson to child abuse, but the coverage generally has been either brief and matter-of-fact or sympathetic.

Now the silence may be breaking. Mangum’s current indictment on a murder charge has caused some commentators to revisit the parody of justice called the “Duke case.” The Atlantic, for example, is to be applauded for leading the discussion.

As for the rest of the media and the left, they have another chance to act with decency.

Law Suits Proceed

As for the three lawsuits wending their way through the courts since 2007, last month a federal judge gave them the green light.  Two were brought by most members of the 2006 Duke lacrosse team, who seek redress from Duke and the city of Durham. Among the charges: Police violated their constitutional rights by requiring the submission of DNA evidence based on false information provided by Duke.

The remaining suit was brought by the three indicted players. Because they settled with Duke earlier, the suit focuses on the misconduct of specific police officers in the department. For example, Sgt. Mark Gottlieb is being sued for violating Fourth Amendment rights, obstructing justice, and making false public statements.

The suits are a rare opportunity to lift the veils that protect academic, police, and court misconduct from public view. Any media outlet that considers police corruption and the ability of ambitious district attorneys to destroy the innocent to be newsworthy will follow the suits closely.

Or will journalism be left to the bloggers again?

At stake are billions of dollars and the creation of a new standard for certifying class-action lawsuits, which would make such suits far more common than they are now, increasing the potential for legal harassment. Walmart disputes the grounds on which class certification was granted to female employees at 3,400 stores.

In 2000 an ex-greeter named Betty Dukes sued Walmart under Title VII of the Civil Rights Act (an obvious intervention in the market) for lack of promotion. Walmart unsuccessfully argued that Dukes had received frequent reprimands for lateness from her female supervisor, which led to a demotion.

In 2001 Dukes and several other plaintiffs asked the U.S. District Court in San Francisco to “class certify” their case. Class-action lawsuits are a “procedural mechanism” through which individual claims based on a common interest are aggregated to ensure both judicial efficiency and the ability of low-income individuals to sue.

In 2004 certification was granted; Dukes became the largest class suit ever certified on the basis of a small number of reported incidents. Walmart appealed.

In February 2007 a three-judge panel of the Ninth Circuit Court affirmed certification. Walmart filed for a rehearing before the full bench.

In April 2010 the full court affirmed the certification, 6-5. The suit was then modified; for example, past employees were excluded without prejudice, allowing them to sue separately. (The number of plaintiffs is variably cited as 1.5 million or 500,000, depending on whether the past employees and their follow-on suits are included.)

Chief Judge Alex Kozinski voiced strong dissent, stating, “[N]o court has ever certified a case like this.” He said the decision invites other class-action lawsuits “based on nothing more than general and conclusory allegations, a handful of anecdotes, and statistical disparities.” The strength of Kozinski’s dissent reflected the political and legal stakes.

The case has been heavily politicized by labor advocates. For example, in her 2004 book, Selling Women Short: The Landmark Battle for Workers’ Rights at Wal-Mart, journalist Liza Featherstone excoriated the retail giant’s labor practices. In follow-up articles and interviews she likened Dukes to civil-rights heroine Rosa Parks.

Politics has obscured the more technical legal issues.

Legally speaking, the debate over Dukes v. Walmart revolves around the nature of evidence that could be properly admitted to justify class certification, and whether the nature of the suit itself satisfied the basic requirements of class certification.

In terms of evidence, the suit set a precedent on what is admissible to class-certify a “harm.” The labor law firm Littler Mendelson commented:

[T]he court credited plaintiffs’ sociology expert’s opinions despite acknowledging they were replete with conjecture . . . [,] allowed aggregation of the statistical data at the regional and national level, and accepted the use of a formula for determining damages instead of individualized findings. . . . Most ominous, the Dukes court gave short shrift to the multiple defenses raised in opposition. . . . Roadblocks that defendants have successfully used against other class certification motions were summarily brushed aside, making molehills out of what previously were mountains.

Grounds for Dissent

Two grounds on which Walmart contested the suit’s eligibility for certification were a lack of “commonality” and “manageability.”

Ideally, all members of a class suit should have a clear “commonality” of harm, such as acquiring a disease from toxic exposure. A class should also have “manageability” to ensure an effective defense is possible; otherwise the defendant’s Fourth Amendment right to due process is jeopardized.

Commonality. The 2004 certifying court had criticized Walmart’s “excessive subjectivity” of policy, which gave managers “substantial discretion” in promotion and salary. Ironically, “subjectivity” was a key point in Walmart’s defense. The corporation argued that each outlet operates as an independent business and so women alleging bias needed to file individual lawsuits against specific stores. In short, the plaintiffs did not share a common harm.

Kozinski echoed Walmart’s argument in his dissent:

Maybe there’d be no difference between 500 employees and 500,000 employees if they all had similar jobs, worked at the same half-billion square foot store and were supervised by the same managers. But the half-million members of the majority’s approved class held a multitude of jobs, at different levels of Wal-Mart’s hierarchy, for variable lengths of time, in 3,400 stores, sprinkled across 50 states, with a kaleidoscope of supervisors (male and female), subject to a variety of regional policies that all differed depending on each class member’s job, location and period of employment. Some thrived while others did poorly. They have little in common but their sex and this lawsuit.

Nevertheless, in the certifying court’s judgment, a typical class-plaintiff was defined by sociological analysis (known as “social framework testimony”), statistical aggregation, and the vagaries of “too much” managerial discretion.

Manageability. Walmart also argued that the suit’s sheer size prevented an effective defense. The company raised not merely constitutional due-process concerns but also the violation of its rights under Title VII. Under that title Walmart has the right to defend individual pay and promotion decisions, the exercise of which becomes a practical impossibility due to Dukes’s size and lack of individual hearings.

Thus the corporation’s lead counsel, Theodore Boutros, Jr., argued that class certification violated “both due process and federal class action rules, contradicting numerous decisions of other federal appellate courts and the Supreme Court itself.” In short, the case’s manageability does not conform to controlling law.

Oral arguments before the Supreme Court took place in March. Walmart is expected to prevail. Before the Supreme Court agreed to hear the case, Professor Deborah Hensler of Stanford Law School told UPI that acceptance would “signal this business-friendly court is hostile to class actions against corporate defendants.”

If review had been declined, Walmart would have been under extreme pressure to settle and an avalanche of similar lawsuits against corporate giants might have ensued, especially in the western states overseen by the Ninth Circuit. If Walmart does not prevail, that outcome becomes likely once more.

Every year, an estimated one million Americans are arrested on  DV charges. Typically they spend several days in jail. According to the Criminal Justice Review (pdf), only 30.5 percent of those arrested are convicted. The vast majority  of those convicted plead guilty to a lesser crime to avoid trial and possible imprisonment. Thus the percentage of those actually guilty of DV may be considerably lower than 30.5 percent.

If 70 percent of arrested muggers were released without charge, if most of the 30 percent detained were given plea deals, questions would arise about “overzealous” police and prosecutors. With DV the opposite happens. The low conviction rate brings cries for more aggressive policies and prosecution.

Why?

DV is a deeply politicized issue. Gender feminists cast it as a quintessential crime of male oppression; “get tough” prosecutors and politicians use it as a career path; and an “industry” of researchers, social workers, lawyers, therapists, and other experts acquire status and income from DV.

The incentives are for more and not less enforcement, and those accused become increasingly vulnerable to false accusations and the suspension of their due-process rights.

The Evolution of DV Arrest Policy

DV policies vary from state to state, but the general trend is common. Decades ago DV was usually classed as a misdemeanor, and an officer could not make a criminal arrest unless he witnessed the abuse or had an arrest warrant. Instead the emphasis was on separating the parties. In the early ’80s DV advocates protested this “leniency,” and states began to allow warrantless arrests for unwitnessed incidents. Probable cause was still required; typically it was based on the presence of physical injury.

The federal Violence Against Women Act of 1994 (VAWA) changed the landscape in at least two significant ways.

First, VAWA provided grants to states “to promote arrest and enforce restraining orders.” In 2007, for example, Alaska received almost $16 million in grants. (For information on VAWA grants to specific states click here.)

Second, VAWA endorsed “mandatory arrest” policies that legally require police to detain an accused even without clear  evidence.  According to the American Bar Association Commission on Domestic Violence, as of 2007 19 states and the District of Columbia had such policies. The concept of probable cause is not abandoned, but arrest practices often discard it in several ways, including: assuming abusers are male (for example, the Nebraska statute refers to suspects with the words “he” and “his”); counting vague concepts such as “fear of imminent serious physical injury” (as in the Oregon statute) as probable cause; and strongly advising police trainees to err “on the side of caution” and believe the accuser.

When VAWA was reauthorized it endorsed policies that preferred arrest, but did not mandate it; such policies were adopted by several other states. Nevertheless, because non-arresting officers usually need to file a report to explain their decision, both policies tend to function in much the same manner. (For a table of domestic arrest policies by state, click here.)

The Harms of Mandatory and Pro-Arrest Policies

Mandatory and pro-arrest policies inflict serious harms, from moral to utilitarian, including:

• The accused are often denied constitutional rights. The Fourth Amendment requires real “probable cause” before arrest rather than an officer’s discretion. The Fifth and Fourteenth Amendments prohibit government from depriving people of liberty “without due process.”
• No distinction is made between first-time and repeat offenders, between trivial and major incidents.
• The de-emphasis on evidence encourages false accusations and the use of tenuous arrests in divorce proceedings.
• Victims are marginalized. Since prosecution is at the sole discretion of legal authorities, true victims may be reluctant to report loved family members or bread-winners.
• Police services are misdirected. According to a study in one state, before pro-arrest policies, DV arrests accounted for 7-15 percent of total arrests; afterward they accounted for over 30 percent.
• The court system is burdened. According to one survey (pdf), 15 percent of cases in criminal court now involve contempt, typically from violating a DV restraining order.

No solid evidence indicates that current policies prevent domestic violence. Indeed, a former Ohio prosecutor expressed a common sentiment: “In the past, the officers would intervene or separate the parties to let them cool off. Now these cases end up in criminal courts. It’s exacerbating tensions between the parties, and it’s turning law-abiding citizens into criminals.” The criminalization of common conflicts should be a last resort.

No one wishes men to beat their wives (or vice versa) with legal impunity. But current DV arrest policies are unjust in the opposite direction. All arrests must respect due process for the accused and the wishes of the victim. All arrests must be based on evidence.

What is a fusion center?

The answer depends on your perspective. If you work for the Department of Homeland Security, it is a federal, state, local, or regional data-coordination unit, designed to improve the sharing of anti-terrorism and anti-crime data in order to make America safer. If you are a privacy or civil-rights advocate, it is part of a powerful new domestic surveillance infrastructure that combines data from both the public and private sectors to track innocent people and so makes Americans less safe from their own government. In that respect, the fusion center is reminiscent of the East German Stasi, which used tens of thousands of state police and hundreds of thousands of informers to monitor an estimated one-third of the population.

The history of fusion centers provides insight into which answer is correct.

Fusion centers began in 2003 under the administration of George W. Bush as a joint project between the departments of Justice and Homeland Security. The purpose is to coordinate federal and local law enforcement by using the “800,000-plus law enforcement officers across the country” whose intimate awareness of their own communities makes them “best placed to function as the ‘eyes and ears’ of an extended national security community.” The fusion centers are hubs for the coordination. By April 2008 there were 58.

The growth has continued under the Obama administration. Indeed, President Obama has also continued Bush’s concealment of domestic intelligence activity by threatening to veto legislation that authorizes broader congressional oversight or review of intelligence agencies by the Government Accountability Office (GAO). As a result of that threat, the GAO provision was removed from the Intelligence Authorization Act.

Due to secrecy, it is difficult to describe a typical fusion center. But if the Indiana Intelligence Fusion Center is typical, this is what one looks like:

Indiana’s center has essentially become an arm of Indiana law enforcement. . . . It has 31 full-time staffers and two part-time employees. Some . . . are state employees. Others are assigned to the center from other agencies, such as the FBI, Transportation Security Administration, and Marion County Sheriff’s Department. They are joined by workers from the Department of Correction, the Indiana National Guard, the Indiana State Police, the Department of Natural Resources and local campus police. . . . There are also private sector analysts on contract. Previously those analysts were from EG&G Technical Services of California. The most recent contract with EG&G called for payment of $1.1 million. . . .

Fusion centers invite reports from public employees such as firemen, ambulance drivers, and sanitation workers as well as from private-sector sources such as hospitals and neighborhood watch groups. They often operate tip hotlines; this means a “suspect’s” name could be submitted by a disgruntled employee, a hostile neighbor, or an ex-spouse who seeks child custody.

What or who is targeted by this sweeping coordination of data?

To get an idea, let’s look at the Los Angeles Police Department (LAPD) program, which the U.S. Office of the Director of National Intelligence said “should be a national model.” In June 2008 the departments of Justice and Homeland Security recommended expansion of the LAPD program to other cities.

In April 2008 the Wall Street Journal reported on a new LAPD policy that compelled officers to report “suspicious behaviors” to the local fusion center. LAPD Special Order #11, dated March 5, 2008, defined a list of 65 suspicious behaviors, including using binoculars, taking pictures or video footage “with no apparent esthetic value,” abandoning a vehicle, taking notes, and espousing extremist views. Local police were converted into domestic surveillance agents.

Voices of caution were present from the inception of fusion centers. Former U.S. Rep. Bob Barr stated: “Using the resources of federal and state law enforcement to encourage the citizenry to submit to the government information on the political, social and even religious views of other people, is in itself outrageous. For the government to then database that information, disseminate it widely, and clearly imply that views with which it may disagree provides an appropriate basis on which to surveil citizens and collect information on them, is beyond the pale. It is also a poor and inefficient use of police resources.”

Violation of privacy rights, excessive secrecy, lack of congressional oversight, the inevitability of inaccurate and noncorrectable information, the lack of due process for the accused, the encouragement of racial/religious profiling, the creation of a “snitch” nation, the political abuse of dissidents—the objections scroll on, followed by specific abuses that bear them out. Here’s a brief sample:

Specific Abuses

Maryland: Fifty-three nonviolent political activists, including antiwar and anti-death penalty activists, were labeled as terrorists and actively surveilled for 14 months.

Minnesota: Eight anarchist protesters who planned to protest the Republican National Convention in Minneapolis were preemptively arrested and charged with terrorism. In Minnesota, a crime can become terrorism if it disrupts the conduct of government.

Texas: A leaked intelligence bulletin from the North Central Texas Fusion System asked police officers to report on Islamic and antiwar lobbying groups.

Missouri: Supporters of third-party presidential candidates, pro-life activists, and conspiracy theorists were targeted as potential militia members.

Virginia: A terrorism threat assessment included certain universities as breeding grounds for terrorism, including historically black colleges.

A more comprehensive list of fusion abuse is available in the ACLU’s Survey of Reported Incidents [PDF]. See also the ACLU’s interactive map for what’s happening in your state [PDF].

Spying on the Peaceful

Clearly, the elaborate infrastructure of fusion centers has spied on peaceful citizens. Those who believe the abuses are aberrations, rather than an inherent or intended function, may argue that increased transparency will bring accountability and solve the problem. But that belief is naive. At least four reasons indicate that a lack of transparency and accountability are built into the system—the absence of real congressional oversight being number one.

Second, the ACLU and others have filed numerous Freedom of Information Act requests. They have had to fight tooth and nail for any scrap of information.

Third, as the ACLU notes, “[T]here appears to be an effort by the federal government to coerce states into exempting their fusion centers from state open-government laws. For those living in Virginia, it’s already too late; the Virginia General Assembly passed a law in April 2008 exempting the state’s fusion center from the Freedom of Information Act. According to comments by the commander of the Virginia State Police Criminal Intelligence Division and the administrative head of the center, the federal government pressured Virginia into passing the law. . . . [T]here is a real danger fusion centers will become a ‘one-way mirror’ in which citizens are subject to ever-greater scrutiny by the authorities, even while the authorities are increasingly protected from scrutiny by the public.”

Fourth, much of the information used by fusion centers comes from private databases such as Accurate, Choice Point, Lexis-Nexis, Locate Plus, insurance claims, and credit reports. Moreover, the centers access millions of government files like the Federal Trade Commission ID theft reports and DMV records. Why is this important? The federal government has adopted various laws to prevent the maintenance of databases on average Americans, but if fusion centers access the other existing files, they would bypass those laws.

A massive database on peaceful citizens, a tip hotline that encourages turning in neighbors, the casting of suspicion on daily activities, enlisting private workers as national surveillance agents—this is a police state in the making. And if its creation is invisible to most people, well, that is another characteristic of a police state. You are not a believer until it knocks on your door . . . in the middle of the night.

These days the Fourth Amendment to the Constitution means next to nothing. Consider, for example, the choice offered a few years ago: surveillance under routine, easy “warrants” from the drive-through FISA Court or warrantless surveillance at the whim of George W. Bush and his allegedly boundless reserve of unitary-executive authority. A January 2006 Justice Department memo (“Legal Authorities Supporting the Activities of the National Security Agency . . .”) explained the executive’s claims in mind-numbing and unconvincing detail. But the memo at least suggested how far below any practical service to Americans’ liberty the Fourth Amendment has fallen, and did so by heaping up available (and rather bad) search-and-seizure precedents, many of which arose from the terminally futile war on drugs (pages 37–38). The result is something like “your Constitution on drugs”—with the searchers and seizers on steroids.

Turning to the Fourth Amendment itself, we read: “The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.”

This sounds pretty good, doesn’t it? And solid, like it might actually mean something. Alas, no such utopian state of affairs actually obtains. It is possible of course that my elementary school teachers just plain lied to us when they spun golden tales about American freedoms.

Yet surely there is more to it. But if so, what doom befell the Fourth Amendment? We might try looking at various eventful periods when governments—state and federal—felt unusually strong needs to arrest, search, and seize, such as the Civil War, Reconstruction, World War I, Prohibition (see Lacey, in works consulted below), World War II, the Cold War, and (naturally) the war on drugs. It seems, however, that long-running negligence, evasion, and misinterpretation have done more harm to the Fourth Amendment than have various short-run authoritarian panics. Central to this slow but continuous process was the rise of modern policing in the nineteenth century, creating a new institution not foreseen in American constitutions (state or federal) and therefore largely incompatible with them and unaddressed by them (see Roots).

Gradualism and crisis, always headed the same way, have yielded a constitutional trail of tears catalogued in American state and federal case law. The U.S. Supreme Court hardly noticed the Fourth Amendment until the twentieth century. In the Prohibition-era case Carroll v. U.S. (1925), the Court sanctioned searches of private automobiles on the rather forced analogy of ships at sea. (The next time cops pull you over and search your car, you may blame Chief Justice William Howard Taft.) But the amendment’s core meaning survived awhile longer in areas where it was thought to have always applied.

Meanwhile, emboldened by the Fourteenth Amendment, the Supreme Court undertook to supervise state police practices from the late 1940s on; it would decide if the states were following the Fourth and other amendments. This new project annoyed the states but did little enough for the public. Examining federal search practices in U.S. v. Rabinowitz (1950), the Court declared the word “unreasonable” the key to the Fourth Amendment. Henceforth the Court would philosophize on the “reasonableness” of searches (“in the circumstances”) and periodically announce our ever-waxing-and-waning rights on the accordion model of civil liberties. Warrants pretty much disappeared.

We have been saddled with this unsatisfactory outcome ever since. The subjectivity of judicial balancing acts, along with fluctuating judicial moods, has made the Court’s understanding of “reasonable” rather less stable than that of the Oxford English Dictionary. The war on drugs has rendered the Court (particularly “conservative” justices) unsympathetic to complaints about searches. The upshot is that the Fourth Amendment is now mostly just another empty marker at which American politicians, bureaucrats, and ideologues can wave when praising the precious freedoms that supposedly cause Americans to be hated.

Legal History vs. Politicized Originalism

In constructing the above account, I have relied heavily on the work of Thomas Y. Davies, professor of law at the University of Tennessee. (The rhetoric is mine.) In essays running from 1999 to 2007 Davies painstakingly reconstructed the late eighteenth-century context of the Fourth Amendment, accounted for its later reinterpretation, and thus described its effective demise. At the same time, he assessed conservative constitutional “originalism,” which he finds harmful.

For Davies the key to Fourth Amendment mysteries is the displacement of eighteenth-century common-law rules by later legal tinkering. As “judge-discovered” law, common law constituted a whole system (albeit uncodified) able to address almost any issue that could get into court, naturally or under a legal fiction. It centered on private prosecutions between parties, who were often large landholders, and its rules aimed at protecting their rights and “quiet enjoyment” of their property. (The radical historian Barrington Moore, Jr., has noted the aristocratic origins of our civil liberties.)

Of course common law adopted, or was forced to adopt, a number of royalist and Parliamentary premises perhaps not essential to its workings, in such matters of State concern as sovereignty, treason, customs, and revenue. Given its environment, common law also incorporated social prejudices regarding women, employees (“servants”), and other disfavored classes, and remained mired in semi-feudal verbiage. Common lawyers worked new content into their “feudal” categories in a way that eased the transition from “feudalism” (for lack of a better term) to English agrarian capitalism and from one form of State to another. In the hands of Whig justices like Sir Edward Coke (1552–1634), locked in battle against Stuart royal prerogative, the common law became a potential weapon for individual and popular rights against State abuses. Coke’s views were very influential in revolutionary America.

In the nineteenth century, though, the common law came to be seen as a barrier both to industrial capitalism and to further expansion of the modern state; for these and other reasons it was interpreted into nothingness or quietly abandoned.

Common-Law Arrest, Search, and Seizure

With common-law rules in view, Davies sees the whole point of the Fourth Amendment as control of warrants to be achieved by defining them strictly. In the common-law environment of the late eighteenth century, warrantless searches—or arrests—were rare and subject to strict conditions. Thus confined, these few warrantless actions hardly threatened public liberty. Let us see why.

First of all, no one—constable or freeman—could arrest or search someone merely for looking “suspicious.” Accusers (public or private) had to have a case before applying for any kind of warrant. To have a case, an actual crime had to have been committed already. An accusation also had to include sworn testimony of one or more witnesses asserting direct, personal knowledge supporting the belief that a named defendant had done the deed. Strung-out informants selling hearsay “evidence” about crimes that might occur in the future were not consulted, although hearsay could be admitted to establish background facts. Judicial action—indictment, issue of warrants—rested on the kinds of evidence described above. Arrest warrants did not normally issue for misdemeanors. The defendant remained at large but would be wise to attend his trial. A search warrant gave permission to look only for the specific things named.

Further, a defendant never appeared as a witness, but could, with or without counsel, impeach the evidence against him and cross-examine witnesses. Accordingly, the rule against self-accusation (self-incrimination) did not protect a defendant’s trial rights, but meant instead that his diary, calendar, papers, and effects—as extensions of himself—were not subject to general ransacking and fishing expeditions. The other side had to make its case without such modern conveniences. Only Parliament claimed to be able to license fishing expeditions (such as the “general warrants” that so nettled colonial Americans) and mainly in the narrow areas of “treason,” customs, and revenue. (The last two items came under admiralty law with its civil [Roman] law rules.) The Fourth Amendment sought to limit the ability of Congress to play such games.

There was a short list of warrantless arrests and searches allowed under common law. An officer or freeman who saw a misdemeanor underway in his presence (affray or breach of the peace) could make an arrest. Someone traveling at night could be detained overnight to account for himself. In “hot pursuit” of a fleeing felon who had committed an actual crime, an officer or freeman could “break” (into) a house. Here again is the combination of actual crime and personal knowledge. There were a few other complications, but they and the above-mentioned practices were rooted in common sense and had definite boundaries.

Under common-law rules arrests were few and far between. In a system based on enforcement by private parties (freemen), or by constables with few additional powers, defendants could sue for “personal trespass” anyone who brought a bad prosecution. Logically enough, a right to resist false arrest also existed. (Nowadays the concept of false arrest is nearly dead and resistance is not generally recommended.) Damages for bad prosecutions were a useful incentive for keeping peace officers and private prosecutors reasonably careful. Tightly drawn warrants, where required, actually protected officers from resistance or suit.

Since arrests were few and generally followed indictment—and that on real evidence—defendants not formally accused were seldom detained. Hence modern dilemmas involving interrogation seldom arose. Asking questions was a judicial function carried out at trial. Constables, who were considered judicial (not executive) officers, had little discretionary authority and few occasions for third-degree Q&A sessions in the back room. And of course common law had no plea bargaining, that ubiquitous, contemporary solution of “overworked” courts that Paul Craig Roberts and Lawrence M. Stratton refer to as a form of torture.

In the United States, federalism set further limits. Only a few matters fell under federal jurisdiction, fewer still under exclusive federal jurisdiction. At the state level special language in revolutionary-era state constitutions about the “law of the land” or “due process of law”—“terms of art”—protected and perhaps “constitutionalized” common-law rules of arrest, search, and seizure. (“Due course of law” referred to trial procedures.) At the federal level specific constitutional language in the Fourth and Fifth Amendments and elsewhere served a similar purpose. And in practice America avoided what Jeffersonians most feared: a federal claim to enforce the whole common law, which potentially reached everything under the sun. The objects of federal action were limited in number, and the claim of extreme federalists to general common-law jurisdiction failed. But the common-law rules (“due process,” “law of the land”) seemed well entrenched at both levels of government. Could courts and legislatures legally (“constitutionally”) throw away these protections? It is hard to say what informed legal opinion would have said on this point in 1790. Later, of course, courts and legislatures contrived to do exactly that.

Rise and Fall of the Fourth Amendment

The framers’ quest to establish certain common-law rights largely failed. The disjunction between the clauses of the Fourth Amendment encouraged the leap to a “reasonableness” standard. In fact, as Davies shows, the words “unreasonable searches and seizures” were Revolutionary-era rhetoric condemning British general warrants of the 1760s and 1770s as without reason (outside of reason) and therefore illegal and unconstitutional; they were not meant to license future judicial speculation. The core ideas of the Fourth Amendment were better expressed in the Massachusetts Constitution of 1780 and the Ohio Constitution of 1802. Davies speculates that James Madison’s innovative phrase, “probable cause,” was meant to allow a little leeway for customs and revenue enforcement, which already enjoyed partial exemption from common-law rules. (A warehouse, for example, did not enjoy the same immunities from search and seizure as a private dwelling.) Still, even Madison’s slightly weakened version meant something, although “probable cause” (taken by itself) had a big future as a means of reducing restrictions on power to a nullity.

In Davies’s view the Fourth Amendment unraveled for several reasons. Judicial and legislative amnesia undercut the common-law rules. With growing industrialization, capitalists feared workers, Protestants feared Irish immigrants, and most people feared property crime more than they feared the State. To allay these fears and address some genuine problems caused by overcrowding, urban elites created police forces in major American cities by the 1830s. In eighteenth-century terms these new bodies were “standing armies.” Their practices brought about pressure for revised rules of arrest, search, and seizure, and new rules encouraged the new police practices. Davies speculates that the rise of “relativistic and probabilistic notions of truth and proof,” diminished reliance on oaths, and fear of too few convictions also eroded the old common-law regime.

Finally, state and federal courts rather forcibly dragged “due process” into property law—rather notoriously in Dred Scott (1857), with its substantive due process for slaveholders—with a little left over for trial procedures. “Due process” of arrest, search, and seizure receded into the shadows. In search of improved ideas, American state courts looked to Britain, where since 1780 judges had been adjusting the rules in favor of industrialism and modern State practices. (Right-wing commentators who gripe about “foreign law” influences ought to investigate this connection.) For once the federal government was fairly innocent. Precedents that undermined the old common-law regime largely trickled up from the states, especially in the second half of the nineteenth century. The upward trickle was slow at first: Down to 1935 federal marshals still had to have proper warrants to make an arrest.

Here then is today’s Fourth Amendment as seen by a life-form afflicted with supreme-judicial eye syndrome:

The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.

(As this ocular condition worsens, all but a few objects dwindle into dim grayness.)

On Davies’s argument the view that the Fourth Amendment came into its own from the mid-twentieth century forward, when reasonableness took center stage, puts the cart well before the horse. And yet the Fourth Amendment cannot really be recovered. This is where good legal history—concrete originalism—leaves us. Potentially beneficial constitutional provisions are of little use today, even when their meanings can be reconstructed in legal-historical context. We can’t go back, since “activist” judges and legislators have worked for almost 200 years to institutionalize a legal regime with only slight resemblance to any original plan.

Can Anything Be Done?

Oddly enough, nineteenth-century Anglo-American legal bragging about freedom crested at roughly the time when many common-law rules worth saving were on the way out. Common law had reactionary social biases, to be sure, but an accelerated “trickle-down”—to everyone—of important rights that common law protected might have been preferable to their elimination. Purging common law of its English royalist and absolutist accretions was precisely the goal of St. George Tucker’s annotated edition of Blackstone (1803). And there was no reason to stop with Tucker’s “republicanized” Blackstone. More right than wrong on this, Murray Rothbard wrote that the common law minus some “statist accretions” fairly approximated a libertarian law code. Thinkers outside the mainstream periodically rediscover the radical potential of English law: people like Gerrard Winstanley, John Lilburne, John Adams, Thomas Jefferson, Lysander Spooner, and others closer to our own time. They may not agree with one another, but their example is interesting.

This is the path not taken. Most arrests and searches today are without warrant, and getting a formal warrant is fairly easy. Concrete, sworn personal knowledge has yielded to vague (“reasonable”) suspicion or whimsy as a “standard.” Once we enjoyed rules that provided for concrete privacy. By the 1960s privacy seemed so imperiled that the Supreme Court with its usual jobbery was driven to invent an artificial “right of privacy” just to restore some balance. Later, “originalist” conservative justices wrathfully informed us that passage of a law by Congress is nine-tenths of “due process” (you voted, didn’t you?) and the rest is enforcement—stern law-and-order formalism indeed. Translated, conservative “due process” seems to leave us subject to arrest, search, or seizure at the whim of any functionary capable of forming a whim.

Americans have let themselves be systematically excluded from land, from effective political participation, and from effective legal participation. When collapse of the new-model system comes, as one day it must, we may perhaps give ourselves a new constitution. Where might we begin? Chapter XXIX of Magna Carta looks rather promising.

Works Consulted

Thomas Y. Davies, “Recovering the Original Fourth Amendment,” Michigan Law Journal (1999), and “Correcting Search-and-Seizure History: Now-Forgotten Common-Law Arrest Standards” [&c], Mississippi Law Journal (2007). (These two are essential. See also Davies in Wake Forest Law Review (2002), 239ff, Tennessee Law Review (2003), 987ff, Brooklyn Law Review (2005), 105ff, and Brooklyn Law Review (2007), 557ff.)
Morton Horwitz, The Transformation of American Law (1992).
Theodore B. Lacey, “The Supreme Court’s Fluctuating Reaction to National Prohibition in Fourth Amendment Decisions from 1920–1933” (Senior Thesis, Princeton University, 2005).
Roger Roots, “Are Cops Constitutional?” Seton Hall Constitutional Law Journal (2001).
St. George Tucker, “Of the Unwritten, or Common Law of England,” in View of the Constitution of the United States (1999 [1803]), 313–369.
(All the above except Horwitz may be found online.)

On September 29, 1962, Walker issued a public statement: “This is Edwin A. Walker. I am in Mississippi beside Governor Ross Barnett. I call for a national protest against the conspiracy from within. Rally to the cause of freedom in righteous indignation, violent vocal protest, and bitter silence under the flag of Mississippi at the use of Federal troops. . . .”

The campus demonstration led to a riot in which two people were killed and six federal marshals were injured. Importantly, according to a United Press report, “During a lull in the rioting, General Walker mounted a Confederate statue on the campus and begged the students to cease their violence. . . . His plea was greeted with one massive jeer.”

Unnoticed at the time and forgotten today is the fact that while the federal government used the military to guarantee Meredith’s constitutional right to equal protection of the laws, it used psychiatry to deprive Walker of his constitutional right to trial. This was another example of my long-held view that we are replacing social controls justified by race with social controls justified by psychiatric diagnosis.

Guilt by Diagnosis

Arrested on four federal charges, including “inciting, assisting, and engaging in an insurrection against the authority of the United States,” Walker was taken before a U.S. commissioner and held pending the posting of $100,000 bond. While he was making arrangements to post bail, Attorney General Robert Kennedy ordered Walker flown, on a government aircraft, to Springfield, Missouri, to be incarcerated in the U.S. Medical Center for Prisoners for “psychiatric observation” on suspicion that he was mentally unfit to stand trial.

Walker’s entry in Wikipedia mentions neither this nor the ensuing confrontation between Walker’s legal team and the government’s psychiatric team. The reader is told only that Walker “posted bond and returned home to Dallas, where he was greeted by a crowd of 200 supporters. After a federal grand jury adjourned in January 1963 without indicting him, the charges were dropped.”

How could this happen? Was it legal? It was legal, and in Psychiatric Justice (1965) I presented a detailed, documented account of how it happened. Here I wish to add a few personal details not previously reported.

News of Walker’s psychiatric incarceration had barely hit the newspapers when I received a telephone call from Robert Morris, then president of the University of Dallas, formerly chief counsel to the Senate Judiciary Subcommittee on Internal Security. He identified himself as one of Walker’s attorneys, explained he had been given my name by William F. Buckley, Jr., and asked me to help his team to free Walker from psychiatric imprisonment.

I flew to Dallas and spent a long afternoon and evening with Morris and his team of lawyers. They believed it was obvious that Walker was sane. They wanted me to examine him and say so in court. It was not easy to disabuse them of their conventional beliefs about mental illness as a medical disease and psychiatry as a medical specialty. I summarized the evidence for my view that psychiatry is a threat to civil liberties, especially to the liberties of individuals stigmatized as “right-wingers,” illustrated by the famous case of Ezra Pound, who was locked up for 13 years while the government ostensibly waited for his “doctors” to restore his competence to stand trial. Now the Kennedys and their psychiatrists were in the process of doing the same thing to Walker.

I reminded the attorneys that a courtroom confrontation concerning his “sanity” would not be a search for truth or justice (which they well understood), and noted that they were on the losing side of the civil rights battle (which they well knew). I urged them to avoid unnecessary dramatics and focus on freeing Walker from psychiatric detention as their sole goal. Finally, I persuaded them that in a Mississippi courtroom, I–with a foreign name and a foreign accent–would not be the best possible expert for Walker and talked them out of their plan to have me examine him and engage in a contest of “expert opinions” about the predictably dire diagnoses of the government’s psychiatric experts. Instead, I proposed that they “nominate” a prominent Dallas university psychiatrist as their defense expert–that is, a local, publicly employed physician who could ill afford to declare Walker insane on the basis of his “racist” views. (Before the Civil War, proslavery physicians in the South diagnosed black slaves who tried to escape to the North as mentally ill, “suffering from drapetomania.” In the Walker case, pro-integration psychiatrists in the North diagnosed white segregationists as mentally ill, “suffering from racism.”) Next morning I flew back to Syracuse.

For Whose Own Good?

A competency hearing was scheduled. Dr. Robert L. Stubblefield, chief psychiatrist at the Southwest Medical Center in Dallas, was to examine Walker and testify in his defense. The prosecution’s expert was Dr. Manfred Guttmacher, long-time chief medical officer at Baltimore City’s Supreme Court. Walker’s attorneys had no trouble exposing Guttmacher for the evil quack he was. Guttmacher kept referring to Walker as if Walker were his patient and supported the prosecution’s request that Walker be incarcerated (“hospitalized”) for up to three months, testifying under oath that doing so would be “for Mr. Walker’s own good from a medical point of view.”

In the end, the government’s psychiatric plot failed. Walker was declared mentally fit to stand trial, a federal grand jury refused to indict him, and the charges against him were dropped.

Less than two years later, my view that organized American psychiatry was becoming overtly political, seeking the existential invalidation and psychiatric destruction of individuals who do not share the psychiatric establishment’s left-liberal “progressive” views, received further dramatic support. In 1964, when Senator Barry Goldwater was the Republican candidate for president, 1,189 psychiatrists publicly declared–without benefit of examination–that Goldwater was “psychologically unfit to be President of the United States.” Many offered a diagnosis of “paranoid schizophrenia” as the basis for their judgment.

Psychiatry is despotism in the service of the Therapeutic State, rationalized as “progressive” science and “compassionate” medical care. In the past, racial stigmatization and segregation were indispensable for the political class and the State. Today, psychiatric stigmatization and segregation are indispensable for the political class and the State. This is why no exposure of brutal psychiatric injustices makes a dent in the mental health system’s lofty social status as a benevolent, ethical, scientific medical discipline.

We can assume it fell short since the federal government is ever incompetent and has been tight-lipped about how many miles it has completed.

More people cross this international boundary each year than any other in the world—250 million with government permission, a fraction of that without. (Estimates range from 400,000 to a million.) Patches of the border, particularly urban ones, have been fenced and policed for decades. But this dotted line inconvenienced rather than stopped folks who neglected to secure a bureaucrat’s consent for their trip: Travelers trying to exercise their inalienable right to free movement simply went around the barriers. The feds never like being outfoxed, so they extended the fencing beyond populated areas. This drove migrants into increasingly remote and hostile terrain. There they not only had to survive encounters with America’s Border Patrol but also dehydration and other dangers in the desert. No More Deaths, a group that caches food and water along routes migrants are likely to take, estimates that at least 238 travelers perished in Arizona alone in 2006, with more than 4,000 “men, women, and children [losing] their lives in the deserts of the US-Mexico borderlands” from 1998 to the present.

Walling off Rights

You might think that would be tragedy enough for anyone. But as former President George W. Bush said when he signed the SFA, “We have a responsibility to enforce our laws. We have a responsibility to secure our borders. We take this responsibility seriously.” Apparently far more seriously than we do corpses or constitutional limits on government. And so the Act “authorize[d] the Department of Homeland Security to increase the use of advanced technology, like cameras and satellites and unmanned aerial vehicles to reinforce our infrastructure at the border.”

Authorizing DHS to grab more power is about as necessary as authorizing sparks to fly upward. Nevertheless, Congress exempted DHS from all federal laws as part of its 2005 REAL ID legislation. All it has to do is claim that a law impedes progress on the wall. Section 102 (c)1 of the REAL ID Act says, “Notwithstanding any other provision of law, the Secretary of Homeland Security shall have the authority to waive, and shall waive, all laws such Secretary, in such Secretary’s sole discretion, determines necessary to ensure expeditious construction of the barriers and roads under this section.”

This immunity extends all the way to judicial review: Judges can’t “order compensatory, declaratory, injunctive, equitable, or any other relief for damage alleged to arise from any such action or decision,” according to Section 102 (c) 2B. So far the unrelieved victims have been mostly Americans whose property the agency has seized or destroyed. Surely even those most opposed to immigration would agree that stopping it does not excuse such tyranny and injustice against citizens.

Environmental Destruction

Among the many regulations DHS is ignoring are environmental ones. But Mother Nature isn’t as easily overridden. There are consequences for flouting the laws of physics, for example. And DHS’s insouciance towards things like gravity and water has already hurt the government’s own property.

On July 12, 2008, a heavy rain near Ajo, Arizona, clogged drains in completed sections of the fence, damming the downpour and flooding Organ Pipe Cactus National Monument, the only area in the United States where the plant grows wild. Park superintendent Lee Baiza told the Associated Press, “[We] had suggested that [DHS] take into consideration everything that can happen with a weather event. . . . We had a concern that this was going to happen.” And this storm wasn’t even a hurricane such as frequently roars through the Gulf and neighboring Texas.

The Rio Grande River separates Texas from Mexico for 1,254 miles before heading north. It waters a huge variety of wildlife, and that abundance draws conservancies to the area. Some are private, such as the Sabal Palm Audubon Center in Brownsville, Texas. Others are government-held lands that the U.S. Fish and Wildlife or National Parks Service manage. Over the decades, these organizations have cooperated with one another and the Mexican government to form a “wildlife corridor” so animals can range freely even if people can’t. The corridor also acts as a sanctuary for rare or endangered species. But DHS seems as hostile to animal life as it does to human life. It is hacking through this territory with a wide corridor of walls running parallel to one another, asphalt roads between, and hundreds of yards of cleared land to the north and south.

Barriers for stopping bipeds stop quadrupeds, too. This imperils animals that wander widely to feed or mate. Audubon Magazine points out that the inbreeding the wall compels will weaken if not exterminate America’s last colony of ocelots. This cat once roamed the Rio Grande and southern Arizona but now counts fewer than 100 members on the Texas side of the border.

A biologist at the University of New Mexico worries about other predators as well. Dr. Joe Cook told the Inter Press Service, “There is no quetion that jaguars . . . in the U.S. and northern Mexico would be significantly affected by the wall. . . . The only hope to preserve large carnivores in the wild is to have large areas of continuous, unfragmented habitat.”

The Mississippi and Central migratory flyways meet at the Rio Grande. Birds that once rested there during thousand-mile journeys will now contend with barren, paved land instead of trees, bushes, nuts, and seeds. Floodlights that turn desert night into day to discover migrants are already disorienting not only birds but bats and butterflies as well.

Financial Destruction

Matching the wall’s environmental disasters are its financial ones. In January 2007 the Congressional Research Service figured that 700 miles would cost about $49 billion, including maintenance. But as usual with the state’s estimates, this one probably isn’t worth the paper it’s printed on, especially if the rest of the barrier is anything like the 14 miles that wind inward from the California coast at San Diego. The first fence there—ten-foot-tall walls of welded steel—went up in 1993. Next came a “secondary” wall, this one 14 feet high, about 103 feet to the north. A chain-link fence runs parallel to that, with “stadium lighting” throwing every ugly detail into sharp relief. This monstrosity was supposed to cost $1 million per mile, but that skyrocketed to $3.8 million. And construction isn’t yet finished, in part because the California Coastal Commission frets about erosion. The bit that remains unfenced meanders through more challenging terrain, with construction estimated to reach $10 million per mile. If the price for the other 700 miles escalates proportionally, we are looking at an outlay of anywhere from $200 to $490 billion.

There are other, more hidden expenses. For example, the Fish & Wildlife Service has spent $100 million of our money over the last three decades to buy and replant land near the Rio Grande. The wall will ruin that investment. It will also end “eco-tourism” and the $125 million that 200,000 visitors annually spend in the hopes of glimpsing an ocelot or a Muscovy duck.

Naturally, while most Americans pay for the fence, a select few profit. DHS hired Boeing to implement its Secure Border Initiative (SBI) in September 2006. The company will install 1,800 towers as a “virtual fence” on our northern and southern borders within three years to “detect and track intruders through the use of cameras, sensors and motion detectors,” as Federal Computer Week puts it—all for only $2.5 billion. Needless to say, Boeing and DHS trumpeted their lucrative deal as a revolutionary, unprecedented, sure-fire solution for the “border problem” the feds have created. But the Washington Post took a more jaundiced view, citing the government’s “series of failures [in] control[ling] U.S. borders.” So did agents on the ground. Rich Pierce, executive vice president of the Border Patrol’s union, told Federal Computer News, “[SBI]—it’s been tried and it’s failed. . . . They’re not going to try anything new. . . . The people in the field know it’s not going to work.”

So did the legislators voting the funds. Rep. Harold Rogers was chairman of the Homeland Security Subcommittee from 2003 until January. According to the June 26, 2006 issue of Government Computer News, he “noted that spending on border security since 1995 has ‘quadrupled from $5.1 billion to over $17.9 billion,’ and the number of agents has jumped from 5,000 to 12,319. ‘However, during this same period, the number of illegal immigrants has jumped from 5 million to an estimated 12 million,’ Rogers said. ‘The policy of more money and no results is no longer in effect. We will not fund programs with false expectations.’” That would explain his subcommittee’s handing $39.9 billion to DHS in FY2009 with Rogers’s “support,” as he proclaimed on his website, despite the agency’s reputation even among the feds as one of their most wasteful and dysfunctional bureaucracies.

Sending Property Owners to Limbo . . .

Knowing that the fence won’t stop immigration, that it merely allows politicians to look as though they’re fixing an issue they’ve ginned up into a crisis, must particularly gall the property owners losing homes and businesses. Most of those victims live in Texas since the feds already own much of the land along the other states’ borders.

The barriers have always been more of a sieve than a fence since they proceed in fits and starts with long gaps between. The new miles of fence will not be much different, according to the Border Patrol: Tom Rudd, the Patrol’s chief in Brownsville, Texas, is “expecting a total of nine miles of fence segments,” according to PBS. “The segments, Rudd says, will act like funnels, pushing migrants into areas where his agents will be waiting to capture them.”

Those funnels bisect plenty of private property, including homes, farms, businesses, and nature preserves, as well as national parks and even towns. Stunningly, they don’t line the actual border. Some of the wall lies as much as two miles north of it. Landowners whose properties fall within that region face a bizarre limbo, severed from the rest of the country—and from the services their taxes supposedly buy them. Audubon Magazine quotes the Society’s executive director in Texas, Anne Brown, on the fate of its Sabal Palm Center: “From what we’ve heard, we’ll have to close. We can’t figure a way to keep it open, because we’ll be cut off from the rest of the United States. Will we be insured? Will we receive city services? We can’t let Ernie [the caretaker] live here anymore.” The magazine adds, “The sanctuary and its unique plants and wildlife will be taken from the American people, and what survives will be, for all intents and purposes, ceded to Mexico.”

Ordinary owners in Limbo Land also face extraordinary challenges. Pamela Taylor is an elderly émigré from England who married an American soldier 50 years ago, then moved to Brownsville with him. If anyone should welcome the protection the wall allegedly provides, it would be Mrs. Taylor. She once arrived home to find a migrant hiding from the Border Patrol in her living room. But she fears DHS and its fence far more than she does people looking for jobs and better lives. “They said the fence was gonna go right across the street,” she told PBS. “And . . . my son-in-law asked, ‘Well, do you mind, how are we going to get out?’ And the fellow from the Corps of Engineers said, ‘Well, you know, we hadn’t really thought about that. I guess you’re gonna have to follow the border patrol out.’” Obviously, that enormously complicates even the simple errand of buying groceries. And it could be fatal should Mrs. Taylor need a doctor.

PBS asked the Border Patrol’s Rudd about ingress and egress for the Americans caught in this quandary. Rudd said there will be “gates” and that “we’re still lookin’ right now—at different—locking mechanisms of what’s gonna work best in certain areas. . . . [O]ne approach that I’m lookin’ at . . . is—a push-key type, you know, the—the number system, a push pad . . . enforced with a camera—so we can make sure that that number or that combination—doesn’t get compromised . . . basically work with the owner to find out who’s gonna be in that area, what kinda vehicle they’d be driving.” The government hasn’t touched Mrs. Taylor’s property and so isn’t offering even eminent domain’s pittance, but it robs her nonetheless. Her land will be worthless. What buyer wants a hassle every time he needs a quart of milk?

DHS plans to swipe some properties lying directly in the fence’s path in their entirety, particularly when the parcel is small because the owner is poor. Other times, the fence threatens only a portion of the property—but it might as well take the whole piece because once again it’s destroying the land’s value. Leonard and Debbie Loop and their children own a 1,000-acre farm in Brownsville. But the wall will exile 800 acres to Limbo Land.

. . . Unless They’re Rich or Connected

Given that the wall doesn’t follow the border, as well as its frequent stops and starts, its placement is arbitrary at best. Many victims have noticed that while DHS expects them to sacrifice their interests, it is skirting property belonging to wealthy, politically connected neighbors. One victim, Eloisa Tamez, is a 72-year-old woman who still lives on some of the 12,000 acres her ancestors received in a Spanish land grant. She’s been down this road before. The feds stole more than half her holdings in the 1930s to build levees, and they didn’t pay a dime for any of it. The Texas Observer reports that now they want more. But the wall gobbling Ms. Tamez’s home stops short two miles down the road. That just happens to be the edge of Sharyland Plantation, 6,000 acres that billionaire Ray L. Hunt is developing into a luxurious, gated community of million-dollar homes. Hunt, of course, is not only George W. Bush’s buddy but his benefactor, too, since he’s kicking in $35 million toward the presidential library. The wall resumes on the other side of Sharyland.

Under former secretary Michael Chertoff, DHS refused to answer questions from folks like Ms. Tamez. But silence has long been one of the agency’s favorite tactics. It almost always withholds information on the grounds that telling the citizens who pay its bills what it’s doing with their money would jeopardize national security. It will neither confirm nor deny who’s on its notorious Terrorist Watch List, for instance, not even to the victims themselves. And so it goes with the wall. DHS refuses to verify its plans or discuss its rationale for the wall’s route. That leaves many owners grappling with rumors and stomach-churning uncertainty. Others are fairly sure DHS will steal their holdings because it has already ordered them to sign waivers allowing surveyors to measure their property. Those who refuse find themselves facing condemnation of their land.

Chertoff tried to cast cooperating with the agency’s theft as a patriotic duty. Despite abundant evidence to the contrary, he announced in February 2008, “I respect private property. But you cannot make border security and national security an individual choice for each individual landowner. . . . [W]hen people are smuggling drugs and human beings across the border, for an individual landowner to say, ‘I don’t care. I want to make sure that my view of the river is unobstructed,’ is not an acceptable answer.”

Dictatorical and Dishonest

That’s not only arrogant and dictatorial, it’s also profoundly dishonest. Protestors do not mourn vanishing vistas. They are instead defending their homes and businesses, some of which have been handed down through their families for generations. Meanwhile, the U.S. government’s unconstitutional jihads against those drugs and people it doesn’t like forces folks who want to transport either to smuggle them. Politicians have tried to control people’s movements and have failed at this immoral task; nevertheless, they expect the rest of us to cooperate with their new, desperate, criminal measures. Why?

Unfortunately, Leviathan has convinced most Americans that its campaign against “illegal” drugs justifies any and all abuses. So now it excuses its militarization of the Mexican border because of the marijuana crossing it. The feds take the same tack with “illegal” immigration. But they also spin things a bit differently to hide their heartlessness. They bewail the “smuggling of human beings,” conflating immigration with—incredibly enough—slavery.

In a speech on September 9, 2008, at the “Stop Human Trafficking Symposium,” conveniently sponsored by Customs and Border Patrol, Chertoff announced that “the line between so-called voluntary migration and human trafficking is not a very bold line. It is often the case that people who begin the movement across the border in a voluntary way . . . quickly turn into victims when they are held for ransom, or when they are required to work off the cost of the smuggling by paying off the vast majority of their wages to the smuggling organizations.” That may be exploitative, but it isn’t slavery since slaves seldom receive wages and so can’t “work off” any “cost.” And Chertoff ignores the fact that the government’s criminalization of migration gives those few entrepreneurs who do victimize their clients the chokehold they need: A “restaurant owner” who allegedly “trafficked hundreds of adults and children into the United States . . . threatened to turn them in to the authorities as illegal aliens if they tried to escape,” according to the Columbia (Missouri) Daily Tribune.

DHS portrays as vicious criminals guides who conduct people through hostile terrain and help them avoid the Border Patrol. The agency then presents its own ferocious attacks on immigrants, its armed patrols and cameras, its dogs, handcuffs, and holding pens, its hunts through the desert in air-conditioned ATVs for exhausted, fleeing families, as “rescuing” them from “human traffickers.” Odd, isn’t it, that migrants pay these “traffickers” to chaperone them across the border but try to fend off their “rescuers” by throwing rocks. They seldom succeed. Rather, they play right into the government’s hands: it charges them with the “crime” of self-defense, AKA, “assaulting a federal officer.” This inflates the number of “felons” crossing the border so that the feds “save” us from an even bigger menace.

An Unconstitutional Line in the Sand

Whether they’re between states or countries, borders soon cease to be noticed by most people living along them. They marry one another, establish businesses, visit, laugh, cry, agree, disagree, and dream together. So it is along the U.S.-Mexican boundary. The wall will sunder these families and friends as mercilessly as Berlin’s barricade did Germans.

The Founding Fathers understood government’s essence, its cruelty and callousness, far better than do modern Americans. That’s why their Constitution never empowers politicians to regulate anyone’s movement into or out of the country (except for slaves, fittingly enough: What else are we when we beg a bureaucrat, “Please, may I enter?”). Article 1, Section 9 bars Congress from “prohibit[ing]” the “Migration or Importation” of “such Persons as any of the States now existing shall think proper to admit” until 1808. If we dismiss the doctrine of enumerated powers, this implies that Congress may prohibit all the migrating and importing it likes thereafter. And if we also dismiss the literary and historical context that limits Article 1, Section 9 to slaves, it appears the feds may indeed control anyone’s immigration after 1808—but only in those states existing at the Constitution’s adoption. None of those border Mexico, and mighty few do Canada. DHS needs to relocate its wall down the Atlantic coast.

Nor does the Constitution deputize the central government to “protect” the country’s borders, much less build walls “funneling” migrants through deadly desert where cops lurk to kidnap them. Immigration ought never to have been federalized in the first place; government had no business arrogating an “interest” in it during the 1870s, then tightening its vise each decade since. Immigration is an issue of property rights—not the DHS’s infernal abrogation of them, but a decision by the folks Michael Chertoff so despises, “each individual landowner,” as to whether migrants may cross his property.

Despite its utter lack of constitutional authority, DHS will probably continue militarizing our borders. Its current secretary, Janet Napolitano, opposed a physical wall when she was governor of Arizona. As she told AP, “You show me a 50-foot wall and I’ll show you a 51-foot ladder at the border.” Heavily implied is her support for more border agents as well as more high-tech surveillance. Napolitano is as implacable an enemy of freedom of movement as her predecessor Chertoff was, even if her methods differ.

Meanwhile, America has another border to the north, which Boeing’s contract covers as well. Landowners there should be very worried, given the abuses their southern brothers have suffered.

Indeed, all of us should worry, if not panic, when we remember that the walls keeping others out also keep us in.

Many people view contempt of civil court as an uncommon and relatively benign sanction that is flexed only to enforce court orders or respect for the court. If the sanction is seen to have bite, it is usually in connection with high-profile cases in which journalists refuse to reveal their sources and so are imprisoned until they relent or it is clear that further imprisonment will not compel compliance.

In reality such imprisonment seems to be commonplace and it can devastate lives. Arguably, the most common form of civil imprisonment is for nonpayment of child support. When a “deadbeat” parent is jailed for nonpayment by a family-court judge, the actual charge is contempt of civil court. How many “deadbeats” are imprisoned each year is unknown because family courts are not required to maintain such records and rarely do so. This means that family-court judges act with less transparency and less accountability than those in other venues do. Moreover, there is no national database of “deadbeat” parents incarcerated each year. In short, there is an amazing lack of data on such imprisonment, with estimates ranging from tens of thousands to hundreds of thousands.

What is contempt of court? The United States has two basic types of contempt: criminal and civil. Contempt of court has been called the “Proteus” of the legal system because Proteus was the Greek sea god who could change his shape at will. In short, contempt of court can assume many forms due to three factors: the judge is often the sole evaluator of when contempt has occurred; federal law differs from state laws, which often vary from each other; and criminal contempt is remedied differently from its civil parallel.

Nevertheless, all contempt charges share certain characteristics. In its most basic form, contempt of court is a ruling through which a judge sanctions a deliberate act or omission to act that he or she considers to be disobedient, obstructive, or disrespectful to the court. The ruling is the sternest remedy a judge can impose on “bad behavior,” such as refusing to obey a court order or uttering obscenities in court. Punishment can be imposed on anyone within the court, including attorneys, parties to a lawsuit or criminal action, witnesses, and spectators.

This article focuses on civil contempt on a state level and analyzes criminal contempt only by way of contrast. In theory a key difference is that criminal charges are more serious than civil ones and often involve the loss of liberty. Thus criminal defendants have protections of due process that civil defendants do not enjoy. In some cases, however, civil contempt involves imprisonment against which the offender, or contemnor, has no legal protection or recourse except eventual compliance.

What are some of the other key differences between civil and criminal contempt?

In both, contempt can be either direct or indirect. Direct contempt is committed in the presence of a presiding judge; for example, interrupting the judge. Indirect contempt is committed outside the presence of the presiding judge, for example, neglecting to pay court-ordered child support.

In civil court, once the direct contemnor has been advised of the contempt, a fine and/or imprisonment may be imposed immediately. The imprisonment is generally for a few days but can span months. The contemnor has no legal right to an attorney or a trial or any defense. The judge’s ruling cannot be appealed. In indirect civil contempt, the contemnor is entitled to notice and a hearing at which to present evidence and rebuttal. Then, at the sole discretion of the judge, the contemnor may be imprisoned until compliance is compelled. With noncompliant contemnors, imprisonment usually ends when the judge concludes that continuation is ineffective. If the judge does not reach that conclusion, it is possible for the imprisonment to be indefinite.

By contrast, in direct or indirect criminal contempt, the contemnor retains the rights of due process. The sentence, which is meant to punish rather than to compel compliance, is of a set length.

Thus in practice a civil-contempt charge can be far more serious than a criminal one.

Consider H. Beatty Chadwick’s 13 years of imprisonment. The facts of his case are straightforward. In 1977 Chadwick married Barbara Jean Crowther. In 1992, she filed for divorce. In 1994 Barbara Chadwick informed the court her husband had wired $2.5 million out of the country. The judge ordered him to retrieve the money and place it in a court-controlled account until the divorce was settled. Beatty Chadwick claimed that most of the money had been lost in a foreign business deal gone bad; however, a small fraction of the money showed up in a U.S. bank under his name and the court did not believe his story. In April 1995 Chadwick was imprisoned until the money was produced.

Traditionally, a contempt-of-court sentence continues only as long as there is a reasonable expectation of coercing compliance. Otherwise, the imprisonment becomes a punishment, which is a criminal sanction and beyond the authority of civil courts.

An Affront to Liberty

A 1974 New Jersey Supreme Court case, Catena v. Seidl, is often cited regarding this point in civil contempt. “It is abhorrent to our concept of personal freedom that the process of civil contempt can be used to jail a person indefinitely, possibly for life, even though he or she refuses to comply with the court’s order. . . . [C]ontinued imprisonment may reach a point where it becomes more punitive than coercive and thereby defeats the purpose of the commitment.”

In 2002 U.S. District Court Judge Norma Shapiro ordered Chadwick’s release on grounds that continued imprisonment would not compel compliance. That same year, then-Third U.S. Circuit Court of Appeals Judge Samuel Alito overturned Shapiro. He said, “Because the state courts have repeatedly found that Mr. Chadwick has the present ability to comply with the July 1994 state court order, we cannot disturb the state courts’ decision that there is no federal constitutional bar to Mr. Chadwick’s indefinite confinement for civil contempt so long as he retains the ability to comply with the order requiring him to pay over the money at issue.”

Thus Alito, now a U.S. Supreme Court justice, asserted the right of a civil court to hold a contemnor in prison in perpetuity. The only question was whether the contemnor has the ability to comply.

In Chadwick’s case the ability is far from clear. In 2003 former Pennsylvania Judge A. Leo Sereni oversaw an 18-month investigation in which two accounting firms attempted to track down Chadwick’s money. No trace was found beyond what had been identified a decade before. Sereni recommended Chadwick’s release, stating, “My God— if he had stolen $2 million, he would have been out a couple of years ago.” (Apparently, the state maximum for that crime is or was a seven-year term.) Chadwick’s lawyer has added that his elderly client now suffers from non-Hodgkin’s lymphoma and requires “outside” medical attention.

In February 2006 the presiding court held that Sereni had “overstepped his bounds” and Chadwick’s incarceration should continue.

Is the Chadwick case an aberration that has slipped through the cracks of an otherwise reasonable system? Or is it an extreme example of a commonplace occurrence that suggests family courts are out of control in the use of contempt imprisonment?

The “legal crack” theory confronts a problem. According to the Chicago Tribune, the case has produced “a dozen pleas to the county courts, nine to state appeals courts, nine to the Pennsylvania Supreme Court, six to the nearby federal court, four to the Third Circuit Court of Appeals and two to the U.S. Supreme Court.” For an injustice to withstand sustained efforts to remedy it, the “crack” has to be both massive and widespread. A mere aberration should be easier to correct, and higher courts should not affirm it.

Yet if the Chadwick case points to widespread abuse, how should civil contempt be reformed? Or, more fundamentally, should the sanction be abandoned entirely?

An Alternative?

Abandoning civil contempt would not be absurd. After all, that specific power derives from British common law. Civil law, which is also known as Continental or Romano-Germanic law, is at least as widespread as common law; for example, it is the basis of French Civil Law and the Swiss Civil Code. The fundamental difference between the two systems is that common law derives rules or precedents from specific cases and civil law starts with rules and applies them to specific cases.

For purposes of this article, however, the fundamental difference is that most civil-law countries do not recognize civil imprisonment for contempt. In their book The Civil Law Tradition: An Introduction to the Legal Systems of Western Europe and Latin America, legal scholars John Merryman and Rogelio Perez-Perdomo wrote, “Another fundamental difference between the civil law and common law traditions occurs in enforcement proceedings. Civil law jurisdictions have nothing comparable to the common law notion of civil contempt of court. . . . [I]n the common law a person can be compelled to act or to refrain from acting by the threat of imprisonment or fine for contempt of court—that is, for refusing to obey a court order addressed to him or her as a person.. . . The civil law, by way of contrast, knows no civil contempt of court and tends to operate solely in rem. This means that regardless of the type of claim one has against another person, the only way one can collect the claim is by obtaining a money judgment.”

Much of the world, including most of western Europe, functions without the common-law tradition of civil imprisonment. Thus it is not clear that eliminating the practice would harm North American jurisprudence in any manner.

Indeed, there are good reasons to believe that eliminating the imprisonment would improve justice in North America.

First and foremost, there is the human cost. The misery inflicted by imprisonment is the most obvious human cost. But critics of civil contempt argue that such imprisonment is also a violation of constitutional rights that should apply not merely to criminal matters but also to civil ones—at least, if punishment involves the deprivation of liberty. These critics refer primarily to the rights of due process that are protected by the Sixth Amendment but also to those within the Fifth and Fourteenth Amendments.

The Sixth Amendment states, “In all criminal prosecution, the accused shall enjoy the right to a speedy and public trial, by an impartial jury of the state and district wherein the crime shall have been committed . . . and to have the assistance of counsel.” Although civil contempt is not a criminal prosecution, the line between the two blurs with imprisonment and when the penalty is imposed as a punishment rather than a remedy.

The Fifth Amendment states, “No person shall be held to answer for a capital, or otherwise infamous crime, unless on a presentment or indictment of a Grand Jury . . . nor shall be compelled in any criminal case to be a witness against himself, nor be deprived of life, liberty, or property, without due process of law; nor shall private property be taken for public use without just compensation.” One of the traditional measures of whether a crime is “infamous” is the severity of punishment that may be imposed for its violation; the punishment of indefinite imprisonment would seem to make civil contempt an “infamous crime.”

The relevant section of the Fourteenth Amendment reads, “No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.” Again, imprisonment seems to require the observation of due process.

Arguably, civil contempt also impinges on First Amendment guarantees of free speech. The need for transparency and accountability within the justice system is a hotly debated issue. A prerequisite of meaningful debate is the ability to criticize the conduct and decisions of judges. As civil-contempt laws read today, however, a person who accuses a judge of misconduct can be found guilty of contempt of court even if he or she is able to prove the truth of the statement.

In theory a judge imposes contempt charges as a last resort and in a manner that respects rights. But when a judge (or any human being) is given absolute and virtually unaccountable power over another, frequent abuse is the predictable result. This is especially true when an act of contempt directly challenges a judge’s authority or constitutes an insult. In short, the judge becomes the injured party; this fact alone should disqualify him or her from rendering a decision on the alleged injury. As Justice Hugo Black stated, “When the responsibilities of lawmaker, prosecutor, judge, jury and disciplinarian are thrust upon a judge he is obviously incapable of holding the scales of justice perfectly fair and true and reflecting impartially on the guilt or innocence of the accused. He truly becomes the judge of his own cause.”

Political Abuse

It is not merely the judge who can abuse contempt of court charges; it is also politicians. A famous example of contempt being used politically is the 1895 imprisonment of labor leader Eugene V. Debs. Debs was arrested both for conspiracy and for contempt of court following his prominent role in the Pullman Strike, during which the American Railway Union refused to handle Pullman cars or any cars attached to them, including those carrying U.S. mail. The federal government obtained an injunction against the strike, which it sent in the Army to enforce. On the charge of conspiracy, Debs had a jury trial in which famed civil rights attorney Clarence Darrow defended him; the case was dropped mid-trial. On the charge of contempt, the judge in his sole authority sentenced Debs to six months in prison.

The danger of contempt-of-court charges being abused rises when the case being decided is controversial and open to political pressure.

Can the good of society (or other specific individuals) be balanced against the cost and danger of contempt of court? In civil contempt the “good” is usually defined as “paying up”—for example, child support. It is difficult to understand what “good” is accomplished by imprisoning nonviolent parents who are behind in payments. Although data on the number of “deadbeat” prisoners is vague and often anecdotal, “deadbeat” dads almost certainly constitute the majority of civil-contempt imprisonments. Often the stated goal is to pry loose hidden money from the parent. But there is no statistical proof or studies to indicate that imprisonment motivates a parent who can pay up to do so. Moreover, society tracks wealth through bank accounts, tax returns, pay stubs, and myriad paper trails; if wealth is not discoverable and attachable, there should be a presumption that it doesn’t exist. The accused should not be guilty until proven innocent.

The possibility that many insolvent “deadbeats” are punished for their poverty has given rise to the accusation that America has reinstated debtors’ prisons. A debtors’ prison is simply a prison for those unable to pay a debt. In 1833 the United States eliminated such institutions at the federal level and most states followed suit, refusing to impose the criminal penalty of imprisonment on insolvent debtors. Currently, the typical wording about debtors’ prisons within state constitutions is, “No person shall be imprisoned for debt in any civil action, or mesne or final process, unless in cases of fraud.” It is still possible, however, to be incarcerated for nonfraudulent debts such as nonpayment of alimony or child support.

Imprisonment for civil contempt is an unnecessary and dangerous exception to the due process to which every individual is entitled both by the Constitution and by natural right. It also involves a confusing, inconstant maze of laws that collapse the traditional distinction between criminal and civil courts. As Justice Black observed, “It would be no overstatement . . . to say that the offense with the most ill-defined and elastic contours in our law is now punished by the harshest procedures known to that law.”

I believe civil-contempt imprisonment is a legal aberration that creates an artificial and arbitrary respect for courts. It also acts as a barrier for the open evaluation and criticism of judges, which is necessary to a healthy transparency within the judicial system.

Civil-contempt imprisonment is far from a benevolent or rarely flexed power. Unless the law is changed or eliminated, Beatty Chadwick will spend the rest of his life in jail without ever being arrested or heard by a jury; tens of thousands—and, arguably, hundreds of thousands—of “deadbeat” parents will be sent to the modern equivalent of debtors’ prison.

The power of a judge to imprison without recourse should be eliminated.

The Bush administration says yes. But in a key ruling in June, the same week as the 792nd anniversary of Magna Carta, a three-judge panel of the U.S. Fourth Circuit Court of Appeals resoundingly said no. If it withstands further appeal, the decision will be a timely affirmation of the limits of executive power and the constitutional priority of civilian over military rule.

The government alleges that Ali Saleh Kahlah al-Marri, a married graduate student at Bradley University in Peoria, Ill., and a citizen of Qatar (a country with which the administration is not at war), is an al Qaeda “sleeper agent” who volunteered for a “martyr mission” in the United States. He was initially charged with criminal possession of credit-card numbers and making false statements to the FBI and on bank forms. But when he asked the court to suppress evidence on grounds he was tortured, the administration moved to dismiss the charges, declared him an “enemy combatant,” and put him in a naval brig in South Carolina.

That, the appeals court says, is illegal and unconstitutional. “Even assuming the truth of the Government’s allegations, the President lacks power to order the military to seize and indefinitely detain al-Marri,” Judge Diana Gribbon Motz wrote in the 2–1 majority opinion. “If the Government accurately describes al-Marri’s conduct, he has committed grave crimes. But we have found no authority for holding that the evidence offered by the Government affords a basis for treating al-Marri as an enemy combatant, or as anything other than a civilian.” Judge Motz cites precedents dating back to the nineteenth century affirming that all U.S. residents, citizens and noncitizens, have rights, especially due-process rights, recognized by the Constitution.

The decision is important because the Military Commissions Act, passed last year, purported to abolish habeas corpus for “aliens.” The court said, however, that this provision applies not to civilians living in the United States, but only to detainees at Guantanamo Bay, Cuba, who were apprehended in Afghanistan and other foreign locations. The court said, “Congress sought . . . to preserve the rights of aliens like al-Marri, lawfully residing within the country with substantial, voluntary connections to the United States, for whom Congress recognized that the Constitution protected the writ of habeas corpus.” As the court noted, the “enemy combatant” declaration “does not assert that al-Marri: (1) is a citizen, or affiliate of the armed forces, of any nation at war with the United States; (2) was seized on or near a battlefield on which the armed forces of the United States or its allies were engaged in combat; (3) was ever in Afghanistan during the armed conflict between the United States and the Taliban there; or (4) directly participated in any hostilities against United States or allied armed forces.”

Thus al-Marri can’t be an enemy combatant, and the Bush administration has no constitutional or statutory power to declare him one. That is no small matter.

“This does not mean that al-Marri must be set free,” Judge Motz continued. “Like others accused of terrorist activity in this country, from the Oklahoma City bombers to the surviving conspirator of the September 11th attacks, al-Marri can be returned to civilian prosecutors, tried on criminal charges, and, if convicted, punished severely.

“But the Government cannot subject al-Marri to indefinite military detention. For in the United States, the military cannot seize and imprison civilians—let alone imprison them indefinitely. . . . To sanction such presidential authority to order the military to seize and indefinitely detain civilians, even if the president calls them ‘enemy combatants,’ would have disastrous consequences for the Constitution—and the country.”

The importance of the centuries-old, hard-won principle of habeas corpus as a bulwark against tyranny cannot be exaggerated—for what good is a bill of rights if those whom the government imprisons may not publicly contest their detention?

Some find it tempting to relax the traditional protections of the accused in “exceptional” cases. But it’s worth reminding ourselves that preventing tyranny requires us to resist that temptation—especially in such cases.

* * *

A top American pastime is bemoaning the price of medical care and insurance. (Michael Moore now has joined in with Sicko.) Maybe they would be cheaper if we didn’t have to buy coverage we don’t want for things we won’t need. John Seiler sheds light on the mandated-coverage scandal.

Is buying a hybrid car economical? If you don’t understand the price system, you might think so. Paul Cwik has the lowdown.

In some states city governments have the legal power to annex your property beyond city limits and make you a taxpayer—without your consent! Can this really happen in America? Barbara Hunter says it can and does.

The late Milton Friedman (along with his coauthor Anna Schwartz) did something remarkable in his long career as an empirical investigator: he turned the economics profession upside down with his explanation of what caused the Great Depression. Ivan Pongracic, Jr. explains this phenomenal achievement.

If you think “political correctness” in education has been a problem, you haven’t seen anything yet. Introducing: cultural competence. Wendy McElroy has the harrowing details.

Early American history is filled with colorful characters, some of whom forgot what America was supposed to be about. Becky Akers has the story of one: Henry “Light-Horse Harry” Lee.

In this month’s columns, Richard Ebeling compares the Inca welfare state to our own. Donald Boudreaux explodes a false analogy regarding immigration. Stephen Davies ponders political labels. David Henderson looks at today’s living standards. And Jude Blanchette, seeing a New York Times columnist claim that the market can’t produce enough “human capital,” objects, “It Just Ain’t So!”

Our reviewers have been poring over books about Stalin’s prison camps, welfare, ethics, and organized labor’s racial record.

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Sheldon Richman

So it goes. Not just tobacco, but guns, asbestos, and a cross-section of American industry described by one think tank as the Mass Tort Monster: DDT, Bendectin, the Dalkon Shield, fuel tanks, silicone breast implants, lead paint, fen-phen, and on and on.

Since 1930, litigation costs have grown four times faster than the overall economy. Federal class actions tripled over the past ten years. Class actions in state courts ballooned by more than 1,000 percent. The U.S. Chamber of Commerce estimates that the annu­al cost of the tort system translates into $809 per person—the equivalent of a 5 percent tax on wages. The trial lawyers’ share—roughly $40 billion in 2002—was half again larger than the annual revenues of Microsoft or Intel. In 2002 the estimated aggregate cost of the tort system was $233 billion, according to the actuarial firm Tillinghast-Towers Perrin. That cost represented 2.23 percent of our gross domestic product. Over the next ten years the total “tort tax” will likely be $3.6 trillion.

When costs explode, proposals for reform are never far behind. So we have been deluged by congressional schemes to curb class-action litigation, ban lawsuits against gun makers and fast-food distributors, cap med­ical-malpractice awards, and otherwise enlist the federal government in the tort-reform battle.

My objective in this article is not to document that tort reform is necessary or desirable. That has been effectively done by many others. Instead, I want to examine the types of reforms proposed—especially the extent to which they are compatible with our sys­tem of federalism.

The underlying premise is straightforward: No mat­ter how worthwhile a goal may be, if there is no constitutional authority to pursue it, then the federal government must step aside and leave the matter to the states. If Congress decides to act, it has to identify authorization for each proposed reform.

One possible source of authority is the all-encom­passing Commerce Clause. As the country grew, some people believed that many of its problems required national regulatory solutions. So Congress earmarked a specific constitutional power to justify its ambitious federal agenda. The Commerce Clause was the vehicle of choice.

But the central reason that the clause appeared in the Constitution was quite different. Under the Articles of Confederation the national government lacked the power to regulate interstate commerce. Each state was free to advance local interests and create bar­riers to trade, without regard to prejudice against out-of-state interests. The solution: a constitutional convention at which, according to Justice William Johnson, “If there was any one object riding over every other . . . it was to keep the commercial intercourse among the States free from all invidious . . . restraints.”

Today, instead of serving as a shield against interference by the states, the commerce power has become a sword wielded by the federal government in pursuit of a boundless array of socioeconomic programs. But just because products are transported across state lines and sold to customers in several states, that does not justify federal intervention. To legitimately invoke the Commerce Clause, Congress must show that federal action is both “necessary” and “prop­er” to ensure the free flow of interstate trade. When it comes to tort reform, neither criterion has been met. Substantive federal reforms are not necessary because the states are enact­ing their own reforms. Substantive federal reforms are not proper because they cannot be harmonized with tradi­tional concepts of federalism.

Tort damages, even if related to a product that crosses state lines, are very different from a tariff on inter­state trade. The objective of a tariff is to raise money and favor in-state busi­nesses by discriminating against out-of-state businesses. That maneuver is contrary to our federal system and justifies countermeasures under the Commerce Clause. By con­trast, the purpose of the tort system is to redress grievances—a state-based function for more than 200 years. Yes, if a state’s tort law favors local constituents, that might implicate the Commerce Clause. But dis­criminatory laws can still be fixed by implementing procedural federal remedies—about which more in a moment—leaving substantive tort law in the hands of the states.

Medical Malpractice

Consider the repeated attempts by Congress to impose medical malpractice reform on the states. Legislation that caps malpractice awards and limits attorney fees has been before Congress no fewer than eight times since Republicans took over the House of Representatives in 1995. The hypocrisy on both sides of the aisle has been thick enough to slice. For starters, the Democrats professed their abiding faith in federalism. They were the same Democrats who were apoplectic when the supreme court held in United States v. Lopez (1995) that states are perfectly capable of prosecuting the possession of guns near schools. Five years later, in United States v. Morrison, the Court held that victims of gender-motivat­ed violence could not sue their assailants under federal law. Predictably, both baby steps to rein in federal authority were met by cat­erwauling from the Democratic left.

But some democrats seemed to have rediscovered federalism when it comes to medical malpractice. Rep. Melvin Watt of North Carolina, for one, says: “[F]or the life of me, I can’t figure out what the federal nexus is.” Amen to that. Fans of federalism are happy to welcome Watt and any other late comers to the fold. And surely the Democrats would be joined by the Republicans, eager to affirm the GOP’s traditional respect for state sovereignty.

Well, no, actually the Republicans had a change of heart. The President called malpractice “a national problem that requires a national solution.” He added that “any time a malpractice lawsuit drives up the cost of health care, it affects taxpayers. It is a federal issue.” Rep. Tom Feeney of Florida claims to have “wrestled with the issue” of federal damage caps but decided it would be unfair if doctors, concerned about malprac­tice, denied treatment to Florida constituents. Local physicians unfairly ignore local patients. How does that raise a national constitutional question?

No doubt, Feeney is correct when he explains that outlandish jury verdicts can drive up insurance premi­ums and cause doctors to curtail services. And no doubt that scene could unfold in more than one state—per­haps threatening a malpractice mess nationwide. But not every national problem is a federal problem. State legislators, courts, doctors, and their patients are not powerless. More than three dozen states have passed damage caps. All 50 states have passed, or are consider­ing, various tort-reform proposals.

Mississippi is a case in point. Three years ago the U.S. Chamber of Commerce warned its members to avoid Mississippi’s “jackpot justice.” Doctors fled or quit; 71 insurance companies pulled out; and the state lost an $800-million bid for a Toyota plant after com­pany executives wrote that “the litigation climate . . . is unfavorable.” The result: a new law, effective September 1, 2004, which caps pain-and-suffering, medical-malpractice, and punitive damages. In addi­tion, plaintiffs have to file suit in the county where they live or where an injury occurred—no more shop­ping for the friendliest forum. Not bad for a state that became infamous as a “judicial hellhole.”

Yet Congress has evidently rejected the federalist idea that the states serve as 50 experimental laborato­ries, each of which can choose to enact malpractice reforms, or not. Instead, Congress has shamelessly dis­tended the Commerce Clause—unleashing it from the operative word “commerce.” By that artifice the fed­eral government regulates anything and everything, including noncommerce—activities like lawsuits designed to prevent or compensate for injuries, not to regulate trade.

That is especially true when we are talking about malpractice suits, in which the litigants—both plain­tiffs and defendants—are typically from the same state. Nowhere in the Constitution is there a federal power to set rules that control lawsuits by in-state plaintiffs against in-state doctors for in-state malpractice. Some of the damage awards may be shocking. But they are not commerce and they are not interstate.

If the Commerce Clause applies to anything that crosses state lines, then it applies to virtually everything. That may be the Supreme Court’s current view, but it was not the Framers’ view. If necessary, let’s amend the Constitution. But my preference is to restore sanity to state tort law—grounded in common law, supplement­ed by state legislatures, interpreted by state courts (or by federal courts applying state law). The system will not be perfect, but competitive state laws are undoubtedly better than monopolistic national rules.

Punitive Damages and the Fourteenth Amendment

Now let me turn to a second possible source of constitutional authority for federal tort reform: the Due Process Clause of the Fourteenth Amendment, which says, in relevant part, that no state shall “deprive any person of life, liberty, or property, without due process of law.” If confiscatory state court decisions have the effect of denying due process to tort defen­dants, federal courts may be empowered by the Fourteenth Amendment to intervene. And section 5 of the amendment authorizes Congress to enforce the Due Process Clause “by appropriate legislation.”

The question, then, is whether state courts have deprived tort defendants of due process. Perhaps, for example, a damage award is so excessive that it breach­es constitutional safeguards. On the other hand, maybe due process imposes no substantive limits on state tort awards, just procedural guarantees like advance notice of the rules and an opportunity to defend oneself. Or maybe substantive and procedural protections merge when damage awards are so capricious and unpre­dictable that defendants cannot know with any assurance how to conform their conduct to the requirements of the law.

To discuss the Due Process Clause, I turn to the Supreme Court’s 2003 decision in State Farm v. Campbell, which reversed a bloated $145 million puni­tive damages award against State Farm Insurance. Many of the principles debated by the Court are appli­cable not just to punitive damages but to tort reform more broadly.

Ironically, the State Farm holding, one of the most business-friendly of the Supreme Court’s recent opin­ions, overcame separate dissents from the Court’s conservative stalwarts, Justices Antonin Scalia and Clarence Thomas. That reflects the battle between some conservatives, who want to rein in runaway punitive awards, and other conservatives, who, reluc­tantly, find no federal judicial power to do so. My conclusion: State Farm was a close call, but the major­ity successfully made its case for federal intervention. That said, there are better approaches to tort reform, as detailed below.

Let’s start with the facts. Curtis Campbell’s negli­gent driving killed one person and permanently disabled another. Campbell himself was not hurt. His insurer, State Farm, refused to settle the case for the policy limit of $50,000. Instead, State Farm elected to litigate and told Campbell he had nothing to worry about. The Utah jury had other ideas and found Campbell liable for roughly $186,000—that is, $136,000 over the policy limit. Campbell sued State Farm for bad faith, fraud, and emotional distress. State Farm ultimately paid the full $186,000, but Campbell was awarded $1 million in compensatory damages and $145 million in punitive damages.

The award was short-lived. Justice Anthony Kennedy, writing for a six-member majority, put it bluntly: “This case is neither close nor difficult. It was error to [grant a] $145 million punitive damages award.” The Court said the facts of the case probably justified a punitive award of about $1 million, the same as compensatory damages. The con­duct was not all that reprehensible. Campbell was not physically injured. And comparable civil fines for fraud were only $10,000. As to the ratio of punitive-to-compensatory damages—145 to 1—Kennedy made it clear that the Utah courts had overreached. He did not impose a bright-line test, but he did say that few punitive awards should ever be higher than 10 to 1.

That was the majority opinion; now the three dissents. First, Justice Ruth Bader Ginsburg, who accused the Court of judicial activism—substituting “its judgment for that of Utah’s competent decision-makers.” No doubt the Court does assume a quasi-legislative role when it establishes guidelines for punitive damages. Apparently that bothers some “liber­als,” like Ginsburg, some of the time—like when a federal court overturns a huge award against a corpora­tion. More often, however, the “liberal” justices are accused of judicial activism, and the conservatives insist on judicial restraint.

Judicial Activism versus Judicial Restraint

Those terms are misleading. Judicial restraint does not mean deferring to a legislature or court that has exceeded its constitutional authority. The crucial question is whether a statute or common-law verdict violates the Constitution. Ultimately, that determina­tion is up to nine justices: not by imposing their own policy preferences—that would truly be judicial activism—but by applying the Constitution, based on a proper theory of that document grounded in the Framers’ notions of limited government, separation of powers, federalism, and individual liberty.

To be sure, we are asking courts to decide whether an award is excessive. But judges are frequently called on to make such assessments. Conceptually, an evaluation of excessiveness in the context of a punitive-damage award requires much the same thought process as the interpretation of other murky terms throughout the Constitution, terms like cruel and unusual punishment, probable cause, unreasonable searches, and just compensation, which our courts regularly must explain.

In State Farm no statute dictated the outcome—just the common law of tort, as interpreted by judge and jury. An appellate court is uniquely qualified to review the common-law decision of a lower court. So the real debate in State Farm did not center as much on separation of legislative and judicial powers as it did on federalism: whether the U.S. Supreme Court can set punitive-damage guidelines for the state of Utah. And that debate revolves around substantive due process, the doctrine sometimes invoked by federal courts to prevent states from violating substantive rights presumably secured by the Fourteenth Amendment.

Which brings us to the dissents by Justices Thomas and Scalia. Thomas’s State Farm dissent is little more than one sentence: “The Constitution does not con­strain the size of punitive damage awards.” Scalia’s dissent is not much longer: “The Due Process Clause provides no substantive protections against ‘excessive’ or ‘unreasonable’ awards of punitive damages.” In short, the two justices believe the Constitution guar­antees defendants that the process followed in determining a punitive award will be reasonable, but not that the award itself will be reasonable.

Interestingly, Scalia and Thomas could have side­stepped the substantive due process question, but they chose not to. They could have justified federal inter­vention on procedural rather than substantive grounds. Remember that the Court was dealing in State Farm with remedies, not with liability itself. Arguably, remedies have more to do with procedure than with substance, in the following sense: Proper procedure requires advance notice of the law. Private parties must be able to determine what conduct is necessary to conform to the law’s dictates; and legal outcomes must be reasonably predictable. By violating those norms, outrageous and volatile punitive damages do not provide adequate notice and therefore offend pro­cedural due process. In State Farm the Court was correct to intervene.

State-Based Reforms

Meanwhile, the problem of confiscatory state punitive awards can be fixed without trampling on federalism. Let’s examine a few alternatives— remedies that can be implemented by the states themselves, without federal involvement.

First, take the dollar decision away from the jury. For example, the jury might be instructed to vote yes or no on an award of punitive damages. Then the amount would be set by a judge in accordance with pre-set guidelines.

Second, limit punitive damages to cases involving actual malice or intentional wrongdoing or, at a min­imum, gross negligence. Whatever the heightened standard, the idea is that accidental injuries arising out of ordinary, garden-variety negligence are unlike­ly to require the deterrence for which punitive damages are designed.

Third, states could implement procedural guarantees like those available under criminal law. In State Farm Justice Kennedy observed that punitive awards “serve the same purposes as criminal penalties [but] defen­dants . . . have not been accorded the protections applicable in a criminal proceeding.” Among those pro­tections: a higher burden of proof than the usual civil standard, which is preponderance of the evidence, and no double jeopardy. Current rules allow punitive awards for the same conduct in multiple lawsuits.

Next, broadening the discussion from punitive damages to other areas of tort law, here is a fourth reform: States should dispense with joint and several liability. That is the “deep pockets” rule that permits plaintiffs to collect all of a damage award from any one of multiple defendants, even if the paying defendant was responsible for only a small fraction of the harm. The better rule is to apportion damages according to the defendants’ degree of culpability.

Fifth, government should pay attorneys’ fees when a governmental unit is the losing party in a civil lawsuit. In the criminal sphere defendants are already entitled to court-appointed counsel if necessary; they are also protected by the requirement for proof beyond reason­able doubt and by the Fifth and Sixth Amendments to the Constitution. No corresponding safeguards against abusive public-sector litigation exist in civil cases. By limiting the loser-pays rule to cases involving govern­ment plaintiffs, access to the courts is preserved for less-affluent private plaintiffs seeking remedies for legitimate grievances. But defendants in government suits will be able to resist meritless cases that are brought by the state solely to ratchet up the pressure for a large financial settlement.

Sixth, contingency-fee contracts between private lawyers and government entities should be prohibited. When a private lawyer subcontracts his services to the government, he bears the same responsibility as a gov­ernment lawyer. He is a public servant beholden to all citizens, including the defendant, and his overriding objective is to seek justice. Imagine a state attorney paid a contingency fee for each indictment, or state troopers paid a bonus for each speeding ticket. The potential for corruption is enormous.

Last, state legislators should consider the Fairness in Litigation Act, a model statute proposed by the American Legislative Exchange Council. The act provides that the same legal rules applicable to a private claim by an injured party will also be applicable if the government sues to recover indirect losses related to the same injury.

Recall the states’ lawsuits against the tobacco industry, intended to recoup Medicaid outlays for smok­ing-related illnesses. Here is what the president of the Maryland Senate blurted to the Washington Post in describing his state’s litigation: “We agreed to change tort law, which was no small feat. We changed centuries of precedent in order to assure a win in this case.” Under the proposed Fairness in Litigation Act, the same rules of evidence, the same standards of responsi­bility, and the same burden of proof would apply to the state standing in a plaintiff’s shoes as to a plaintiff suing on his own behalf.

Federal Reforms

Finally, aside from state-based reforms, there are at least two areas where the federal government can intervene without offending long-established state prerogatives. The guiding principle is that the federal legislature and courts are authorized to act when there is a high risk that states will appropriate wealth from the citizens of other states. One federal reform consistent with that principle is to amend the rules that control state exercise of so-called long-arm juris­diction over out-of-state businesses.

Congress could, for example, preclude a local court from hearing a case unless the defendant engages direct­ly in business activities within the state. A company’s mere awareness that the stream of commerce could sweep its product into a particular state should not be sufficient to confer jurisdiction. Companies are “aware,” for example, that their products could be re-sold or transported almost anyplace. Instead, jurisdiction should be triggered only if the company purposely directs its product to the state; that is, the company itself exerts control over the decision to sell in the state. A sensible rule like that would give firms an exit option: they could withdraw from a state and thereby avoid the risk of a runaway jury or biased judge, even if the com­pany’s products somehow end up in-state. Today, feder­al limits on long-arm statutes remain lax or ambiguous. For that reason, oppressive state tort laws remain a threat to out-of-state defendants.

There is a second federal reform that is compatible with federalist principles: a new federal choice-of-law rule, which would apply even when a company cannot afford to lose business by exiting from a state. Basically, choice of law is the doctrine that determines which state’s laws control the litigation when the litigants are from different states.

Generally, plaintiffs can and will select the most favorable forum state based, in part, on its tort laws. But suppose a federal choice-of-law rule were enacted for cases involving multi-state litigants. Suppose fur­ther that the applicable law were based on the state where the manufacturer was located. A manufacturer could decide where to locate, and its decision would dictate the applicable legal rules. Consumers, in turn, would evaluate those rules when deciding whether to buy a particular manufacturer’s product. If a manufac­turer were located in a state that did not provide adequate legal remedies for defective products, con­sumers would buy from rival companies.

Would there be a race to the bottom by manufac­turers searching for the most defendant-friendly tort law? Maybe. But more likely, states would balance their interest in attracting manufacturers against the interest of in-state consumers, who want equitable product-liability laws. In effect, healthy competition among the states would enlist federalism as part of the solution rather than raise federalism as an excuse for failing to arrive at a solution.

The touchstone of federalism is not states’ rights but dual sovereignty—checks and balances designed to pro­mote liberty by limiting excessive power in the hands of either state or federal government. When a state exer­cises jurisdiction beyond its borders, discriminates against out-of-state businesses, or fails to give compa­nies adequate notice of what is required by the law, the federal government should intervene. Otherwise tort reform is not the business of Congress.