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Who should decide whether a police practice-like mass building searches, youth curfews, or anti-loitering ordinances-interferes with individual and social interests to such an extent that it should be prohibited by the US Constitution? Meares and Kahan offer a provocative answer: the specific community that is most directly and immediately burdened by the police practice. If that community supports the police practice, Meares and Kahan write, then "the court should presume that the law does not violate individual rights." And as long as there is political accountability to that community, the court need only apply a low level of scrutiny in evaluating the discretion afforded the police. In effect, Meares and Kahan propose that the political process within the burdened community should determine the contours of constitutional criminal procedure rights.
Meares and Kahan talk about rights in a bold and refreshing way. For Meares and Kahan, rights are contextual-they depend on social and political conditions. They are also instrumental. They can be deployed to empower certain groups. Rights are flexible, even unpredictable-they change with different political climates. Finally, rights are political. There is, ultimately, no guarantee that the burdened community will not dispense with individual rights entirely. After all, mass building searches do away with a swath of traditional constitutional criminal procedure.
As a result, their essay is likely to provoke passionate resistance from liberals, whether rights foundationalists or dual democrats-and especially from civil libertarians. After all, Meares and Kahan challenge a fundamental axiom of liberalism: the idea that constitutional rights trump the ordinary democratic process-that rights are inalienable, or foundational, or neutral, or, for dual democrats, higher law. In this regard, I support their endeavor. Their approach allows for more open debate about the values that underlie the finding of a right. It may encourage judicial transparency and promote greater opportunities for public criticism.
More nuance. But the essay nevertheless troubles me. To begin with, there are too many diverse voices within the African-American communities to attribute one position to African- Americans, as Meares and Kahan do. Inner-city communities themselves may be divided. And this raises a host of thorny questions. How exactly do we define the burdened community? In the case of mass building searches in the Chicago housing projects, the answer is easy: residents of the CHA. But what about youth curfews or anti-loitering ordinances? Meares and Kahan discuss the growth in African-American political strength and crime in African-American communities. Are African-Americans the burdened community? If so, how do we define the "African-American community"? And how do we measure community sentiment? Should we rely on elected representatives of the community, on community leaders, or on a community-wide referendum? I doubt that we can even agree on an adequate definition of the community that is most directly and immediately burdened by youth curfews or anti-loitering ordinances. But regardless, it is incumbent on Meares and Kahan to address these difficult questions sooner rather than later-especially since their's is a political-process theory.
Second, the views expressed within the inner-city-as well as the views expressed in the more affluent suburbs-may well be influenced by crime, income, and race relations. Judge Wayne Anderson, according to Meares and Kahan, "dismissed the residents' willingness to consent to building searches as evidence of the corrosive effect of poverty and crime on their own 'self-respect'." The authors, in turn, dismiss Judge Anderson for being paternalistic. But, of course Judge Anderson is being paternalistic. He is being just as paternalistic as Meares and Kahan, who intimate, through the voice of Edna Pemberton, that residents who fear racial harassment have succumbed to "an ACLU scare tactic." These are paternalistic arguments. They are claims about false consciousness. But that does not mean we should ignore them.
Judge Anderson has put his finger on an extremely troubling issue. Cornel West discusses it in terms of "the profound sense of psychological depression, personal worthlessness, and social despair so widespread in black America."1 We need to engage Judge Anderson and demand self-criticism from everyone involved-in the inner-city, the affluent suburbs, the courthouse, and oursevles. We should ask ourselves how poverty and crime have shaped our own conceptions of ourselves and of our various communities.
Thirdly, Meares and Kahan group together under one umbrella such varied police practices as mass building searches, youth curfews, anti-loitering ordinances, and "the like." Deciding whether or not any one specific police practice is effective and worthwhile is extremely complex.2 The authors concede that "reasonable people can disagree" about any given policy. But I would urge the authors not to lump together these police techniques without suffucent attention to the differences between them.
More democracy. Still, Meares and Kahan pose some powerful questions. The level of crime in the inner city deprives its residents of certain freedoms-their freedom to play in playgrounds, to feel secure in their schools, and to go out of their homes at night. As a result, they may feel that their civil rights are meaningless, and they may be prepared to forego those civil rights if they believe that the proposed police practices will reduce crime. Why should they not be allowed to make that informed decision? And why should residents of more affluent suburbs-whose freedoms are not curtailed in the same way-be allowed to block the inner-city residents from making that decision? Those questions have no easy answer.
But the solution is not to revert the decision making process to the inner-city residents. This proposal is not democratic enough. Policing techniques shape us all and, for that reason, we all have a stake in the matter-not simply because the police might extend a practice outside the inner-city but because the very occurrence of these police practices impacts all of us. We are all shaped by the policing practices that we, as a society, condone, witness, experience, and inflict. Mass building searches in the inner city are going to change our conceptions of privacy, authority, political power, and citizenship. Youth curfew laws are going to impact the cultural and intellectual lives of our children. Anti-loitering ordinances will have an effect on street life-of which there is scarcely any left in many cities. They will result in more police records and contribute to legal, or extra-legal, disenfranchisement.
For some, this is all for the better. The only issue before us, though, is whether inner-city residents alone should be allowed to decide-or rather whether the majority of inner-city residents alone should be allowed to decide. I do not think so. Instead of limiting the decision-making process to the inner-city, we should invigorate wider public debate and encourage courts to engage in and respond to our discussions. We should demand more transparent adjudication. We should encourage courts to set forth, more openly and fully, their conceptions of rights, in such a way as to allow for public debate, constructive criticism, and, possibly, judicial revision.
Unfortunately, Meares and Kahan ultimately fall back on a kind of formalism that may be counterproductive in this respect. The authors propose one legal presumption and one tiered level of scrutiny. These kind of legal mechanisms frequently lead courts to side-step full discussion of the issues. They become outcome determinative. And they frequently silence public criticism. When a case is resolved on a technical legal ground, like a legal presumption or the level of scrutiny to apply, it is difficult for non-lawyers to engage the debate. In this regard, the proposal, again, is not democratic enough.
Why limit the political process and the resulting constitutional presumption to the immediately burdened communities? This is the only way, argue Meares and Kahan, to guarantee against oppression by the majority-against the risk that a majority won't bear the burdens of its laws but instead will abridge the liberty of a powerless or despised minority." But their solution-to empower the minority community-reminds me of a matrioshka doll. When you open that doll, you are faced with the same problem-the risk that the majority (now of the minority community) won't bear the burdens of its laws but instead will abridge the liberty of a powerless or despised minority within it.
In the end, there may not be a stable, faultless, and unchanging guarantee against the oppression of the minority or of a despised minority within it. This is, after all, the principal insight of the refreshing way Meares and Kahan talk about rights: rights should be conceptualized in relation to the present social, economic, and political conditions in order to achieve the objective of avoiding majoritarian oppression. This significant insight moves us two steps forward. But rather than restricting the franchise to the inner city, we should encourage more widespread public debate and more transparent jusicial decision-making. And, ultimately, if conditions become unacceptably oppressive, then we will have to march in the streets again-and pray for another William O. Douglas! n
1 Cornel West, Race Matters (New York: Random House, 1993), p. 21.
2 In a recent article, I sketched out what an assessment might look like for one specific police practice: New York City's strategy of aggressive misdemeanor arrests for minor disorderly conduct. See Bernard E. Harcourt, "Reflecting on the Subject: A Critique of the Social Influence Conception of Deterrence, the Broken Windows Theory and Order-Maintenance Policing New York Style," Michigan Law Review 97 (1998): 291-389.
Bernard E. Harcourt is the Isidor and Seville Sulzbacher Professor of Law and Professor of Political Science at Columbia University. He is author of The Counterrevolution: How Our Government Went to War Against Its Own Citizens (Basic Books, 2018) and Critique & Praxis (Columbia University Press, 2020).
The difficult choices surrounding building searches, curfews, anti-loitering provisions, and the like should be made by the individuals with the biggest stake in them.
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