Professors Meares and Kahan present a parochial, Afro-centric view of rights, which reminds me of the question my grandmother used to ask when I would joyously tell her that the Brooklyn Dodgers had won the pennant: “Is that good or bad for the Jews?” Meares and Kahan seem to judge every application of legal rights by whether it is good or bad for the majority of inner-city blacks in the 1990s. But rights are not, as Justice Jackson once reminded us, like a limited railroad ticket: good for this train at this day only. They are designed for all people and for an enduring period of time.
The Meares-Kahan essay begins with an historical error. The rights about which they speak did not grow exclusively out of an effort to remedy institutionalized racism. Rights do have histories, and the right of every American to be secure against unlawful police intrusion grew out of a long history of governmental abuse against disempowered people of all backgrounds. The 1960s followed on the heels of McCarthyism and of earlier anti-immigrant and nativist abuses. Moreover, there was no revolution of rights with regard to police practices in the 1960s. The real revolution of the 1960s involved remedies. The rights had long been established in principle, but were being ignored in practice. By enforcing these old rights with new remedies-particularly, exclusionary rules and required warnings applicable to state as well as federal cases-the courts fulfilled earlier promises. Even then the majority of blacks, like the majority of whites, did not agree that guilty defendants should go free because their rights had been violated. Meares and Kahan have discovered nothing new when they tell us, with the breathless enthusiasm of discovery, that the majority of law-abiding blacks-like the majority of law-abiding whites-want the police to have more power, the courts to stop freeing the guilty, and civil libertarians to mind their own suburban business.
Nor is there anything new about groups with agendas seeking to undercut inconvenient rights that interfere with their agendas. Recall the impatience many feminists had with the First Amendment’s protection of pornography, or Jews with the First Amendment’s protection of Nazi marchers and Holocaust deniers. Rights, especially for those suspected of doing or saying bad things, are always inconvenient and rarely garner the support of a majority of any community.
Taken to its logical conclusion, the Meares-Kahan hypothesis would allow a majority of believers in a given community to require Christian prayer in the public schools. After all, “because these [non-Christian] individuals had every chance to voice their opposition in the political process, and because there is every reason to believe that the majority-whose member were affected in exactly the same way-gave due weight to the dissenters’ interests, there is no good reason for the courts to second-guess the community’s determination that [compelled prayer] strikes a fair balance.” The same could be said for a community that did not want Playboy magazine to be sold in neighborhood stores, or for Communists or Jehovah’s Witnesses to disturb its tranquillity.
Meares and Kahan prefer “group rights”-in this case the right of a majority of law-abiding, black, inner-city residents-over individual rights-in this case the rights of individuals who do not wish to be subjected to random searches or be told when to go home. But “group rights” is an oxymoron. Groups, especially those with increasing political power, have interests and agendas. But they may not implement those interests and agendas by ignoring the rights of individuals, especially those within the groups who are disempowered and despised.
Throughout their essay, Meares and Kahan use terms such as “the residents,” “the individuals most intimately affected,” “the community, ” “minority residents,” and “these very citizens” to make the point that those who are most affected by the challenged police practices do, in fact, consent to them. But that is simply not true: if those who are searched give their consent, the search is ipso facto lawful. If those who are asked to go home after 11 p.m. willingly do so, there is no constitutional violation. The conflict occurs precisely because some individuals refuse to consent. It is their rights that come into conflict with majority interests. It is no answer to say they consented, unless we accept the proposition-rejected by all rights theories-that a majority can consent for an unwilling minority.
The Meares-Kahan approach is part of a dangerous new vocabulary of rights disguised to undercut the traditional approach taken by our Constitution, not in the 1960s, but in the 1790s. Our traditional conception of rights is directed against governmental abuses. Rights are designed to limit the power of the state, especially the police. They are negative rights, limiting the powers of political authorities: “the state may not.” This conception of rights grows out of a fundamental lesson of history: that in the long run, abuses by the state are far more dangerous to liberty and democracy than individual criminal conduct, dangerous and disturbing as that is. Now there are those who would introduce a new vocabulary of positive-sounding rights: the right to be free from pornography and other forms of offensive speech; the right to life; the right to pray in schools; the right to be safe from criminals-even the right of a victim’s family to see his murderer executed. The effect of these new positive-sounding rights is to trump traditional negative rights. The implications of this process are limitless. Creative lawyers can come up with an anti-right disguised as a positive right to counteract virtually every traditional right. That is why the Meares-Kahan approach is so dangerous, not only to the Fourth Amendment, but to the rest of the Bill of Rights as well.
Meares and Kahan ignore these legitimate concerns, preferring instead to erect the straw-man of paternalism. I have never heard a genuine civil libertarian make the absurd and demeaning paternalistic argument attributed to us by Meares and Kahan:
Civil libertarians have an answer to these questions, too: no. The judgment and “self-respect” of inner-city residents, they sometimes maintain, has been deformed by social deprivation. Consequently, they lack the capacity to make critical assessments of curfews, gang-loitering ordinances, building searches, and similar policies.
The argument I make is that civil liberties must not be changed in every decade to serve the immediate interests (legitimate as they may be) of a majority of one particular community. I am prepared to accept the conclusions (unsupported as it may be) that the statutes and regulations supported by Meares and Kahan are good for a majority of inner-city blacks today. That is surely a factor in assessing their constitutionality. But there are other factors as well, including the long term precedental impact of legitimizing such practices and undercutting centuries of development of rights and remedies. I am not siding with white “suburban residents.” Indeed my personal aesthetic favors curfews in my neighborhood, so long as they are not selectively enforced against minorities. But I want these laws judged not by a transient majority of one particular ethnic group, but by our long history of abuse of police discretion and the continuing danger of unchecked government power.
If Meares and Kahan are correct that rights established (or remedies strengthened) in the 1960s continue to have an impact (a negative one, in their view) in the 1990s, then it would seem to follow that rights abolished (or remedies curtailed) in the 1990s will continue to have an impact in the next century. Our framers wrote a Bill of Rights not for one decade or one group of citizens, but as an enduring limitation on government. Rights are intended to evolve with changing realities. Meares and Kahan make a compelling case for rethinking the application of rights to certain specific statutes and police actions. But in the process of such rethinking, we must reject their broadside attack on individual rights and their voguish notion that long-entrenched safeguards against excesses of state power should be subordinated to the transient interests of majorities (even majorities within minorities), over the valid objections of minorities (even minorities within minorities).
So let me end with a direct answer to the “real question” Meares and Kahan put to civil libertarians: “Why can’t we trust residents of the inner-city to decide for themselves?” We can and should, just as we should for all other residents, provided that their decisions recognize the individual constitutional rights of those affected residents who disagree with the majority. That is what distinguishes rights from interests.