When I was a first-year law student, my contracts professor gave us the following hypothetical: You are drowning in a lake. A fellow walking along the shore calls out to you, “Hey, I’ve got a rope for sale.” You shout desperately, “How much?” He replies, “A million dollars.” If you accept, and he throws you the rope, is that a valid contract?
The professor wanted to discuss the necessary background conditions for valid consent. We learned that contract law sometimes recognizes the inequities of the real (in addition to the hypothetical) world, and sometimes refuses to hold people to the “unconscionable” agreements into which they may have entered.1 This aspect of contract law acknowledges something we all know from experience: Life is full of hard choices, and some are so hard that it does not seem accurate to call them “choices” at all. Remember the old Jack Benny routine. Jack Benny, famous for and famously humorous about his cheapness, is held up at gunpoint by a mugger, who says, “Your money or your life!” After a long silence, the mugger says, “Well?” And Jack Benny replies, “I’m thinking, I’m thinking.”
What is true about the law of commercial contracts is true as well about the social contract writ large, and this truth illuminates the major problem underlying the argument of Dan Kahan and Tracey Meares about policing in the inner city. Meares and Kahan urge that the “consent,” through the legislative process, of a substantial proportion of the residents of poor minority neighborhoods should validate such police practices as suspicionless searches of their homes, night-time curfews for their children, and anti-loitering ordinances that permit the police to order the dispersal of certain groups congregating in public places. (A version of this last measure is up for consideration by the Supreme Court this term.) Surely these communities are smart enough to know what will help them the most, argue Meares and Kahan. Outside agitators like the ACLU should stand aside and stop trying to foist unwanted rights on neighborhoods ravaged by drugs, gangs, and violence.
The fallacy here is that, even by the rosy account offered by Meares and Kahan, the purported “consent” of the communities looks suspiciously like the desperate swimmer grabbing the rope. Meares and Kahan acknowledge that minority communities have long been the victims of discriminatory law enforcement. They note that the police historically have under-protected inner-city communities from the crime, while simultaneously subjecting inner-city residents-primarily youngAfrican-American and Hispanic males-to especially intrusive and violent tactics. Meares and Kahan frankly recognize that “society at large refuses to address the social inequities at the root of inner-city crime,” and they hold out little hope for change on that score: “Thirty years of real-world experience belie the idea that spiraling inner-city crime will somehow force powerful interests outside the inner city to revitalize those communities.” Under these circumstances, it is ridiculous to suggest that inner-city residents would affirmatively choose to trade away their civil liberties; other investments in neighborhood security-like better conventional policing, more economic opportunity, improved schools, or safer housing-are simply not available. In dire straits, and with limited options, they will grasp at any rope, no matter how steep the price. What is more, the history that Meares and Kahan recite demonstrates not only that inner-city residents are desperately struggling in a sea of crime, but also that we, “society at large,” through years of discriminatory neglect and abuse, have pushed them in. We are not only taking unconscionable advantage of their circumstances; we bear some of the responsibility for those circumstances.
Not to worry, console Meares and Kahan. Law enforcement might once have been neglectful and even abusive of minority communities in the inner city, but that history is, well, history. Meares and Kahan point to impressive gains that African-Americans have made in political representation on both national and local levels. In light of this progress, they argue, we should view support by minority communities for voluntarily curtailing their own civil rights and empowering the police as a sign of political empowerment rather than desperation. If minority communities do not fear overreaching or bias by the police (or if they fear these things less than they fear crime), who are we-or the ACLU-to gainsay them? In a nutshell: the background conditions of inequality that would make us doubt the freedom of minority communities to “consent” to onerous law enforcement tactics have been eradicated. The swimmer is not drowning; rather, she is doing the backstroke.
This rosy picture is utterly implausible. Yes, African-Americans have made some impressive gains in political representation. (Note that Meares and Kahan make no mention of Hispanics on this score.) But these gains have not, as Meares and Kahan acknowledge, led to any greater willingness on the part of “society at large” to pump resources into the inner cities. Nor has discriminatory law enforcement been anywhere close to eradicated. There is a burgeoning literature documenting the disparate enforcement of traffic laws against minority motorists, creating a phenomenon now widely and derisively known as “DWB”: Driving While Black. And recent, high-profile cases of police abuses, like those of Malice Green in Detroit and Abner Louima in New York, sadly document how far we still must go to get to the world Meares and Kahan imagine we live in today-one in which the relationship between the police and minorities is no longer “a presumptively antagonistic one.” Indeed, the huge numbers of African-American men in prison and under the supervision of the criminal justice system-which Meares and Kahan use to illustrate the rationality of trading civil rights for more policing-demonstrates just how ineffectual the increased political power of African-Americans has been in improving the circumstances of the most impoverished minority communities.
But let us assume for a moment, however implausibly, that Meares and Kahan are right about the background conditions. Let us imagine that African-Americans have achieved such political power, and that racially discriminatory law enforcement has become such a thing of the past, that their “consent” to onerous law enforcement initiatives could be respected as voluntary. Would that be the end of the argument? No, and for two further powerful reasons.
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First, not only are Meares and Kahan wrong about the background conditions and thus the validity of the consent at issue; they are also wrong about the very existence of the consent. For example, Meares and Kahan strongly support the City of Chicago’s gang-loitering ordinance, which gives Chicago police the authority to order the dispersal of any group “loitering” in public “with no apparent purpose” if a police officer reasonably suspects that one person in the group is a gang member. In their defense of the ordinance, Meares and Kahan observe that it was “passed by an overwhelming margin in the Chicago City Council, with key support from Aldermen representing the city’s most impoverished, crime-ridden districts, whose residents are predominantly racial and ethnic minorities.” What this careful language conceals is that while the ordinance enjoyed the support of the overwhelming majority of the City’s white Aldermen, it got the support of only six of the City’s eighteen black Aldermen.2 And while Meares and Kahan filed an amicus brief arguing for the constitutionality of the ordinance on behalf of some inner-city neighborhood organizations, an amicus brief was also filed on the other side by such individuals and organizations as U.S. Representative Jesse Jackson Jr., the NAACP, the National Council of La Raza, and the Chicago Alliance for Neighborhood Safety.
The story of the Chicago gang-loitering ordinance is typical. The majority community, “society at large,” tends to overwhelmingly support loosening the restraints that the Constitution has been held to place on the police because they know that the burdens of such policing will fall disproportionately on minority citizens. Minority communities tend to be far more divided. Gallup poll after Gallup poll shows that African-Americans trust the police less and fear them more than white people do, and this ambivalence is reflected in decisions on matters of policy. Very often, as in the case of the Chicago ordinance, nothing like a “majority” of minority citizens support the policy at issue. And even when a majority does, there is always substantial dissent (as in the thirty percent of African-American teens polled in Washington, D.C., about juvenile curfews). Minority communities, like all other communities in “society at large,” are not unitary and do not speak in one voice. Rights are personal and can be waived, as Meares and Kahan are quick to point out. But why should a minority-or even a majority of a minority-be permitted to waive the rights of everyone in the community?
Which brings me to my final objection. Suppose Meares and Kahan are right about both issues discussed above: suppose a real majority of the residents of inner-city neighborhoods supported some onerous policing initiative and suppose background conditions were such that we should respect and enforce that consent. There are still good reasons to invalidate the kinds of policing initiatives the authors support. Our laws do not permit people to sell their children, their bodily organs, or themselves into slavery. These prohibitions reflect, at least in part, the idea that some things are too important to be alienated. Freedom from certain kinds of law enforcement tactics should be on anyone’s short list. Police searches of homes without any form of individualized suspicion and police regulation of public spaces through curfews and orders of dispersal have always been disfavored under the Fourth Amendment3-not only because such policies can be tools of racial oppression, but also because the privacy of the home and the freedom to travel and congregate in public spaces are thought, rightly, to be essential to a free people in a democracy. Justice Jackson said it best:
Fourth Amendment freedoms … are not mere second-class rights but belong in the catalog of indispensable freedoms. Among deprivations of rights, none is so effective in cowing a population, crushing the spirit of the individual and putting terror in every heart. Uncontrolled search and seizure is one of the first and most effective weapons in the arsenal of every arbitrary government. And one need only briefly to have dwelt and worked among a people possessed of many admirable qualities but deprived of these rights to know that the human personality deteriorates and dignity and self-reliance disappear where homes, persons and possessions are subject at any hour to unheralded search and seizure by the police.4
These “indispensable freedoms”-like all rights that trump expedient policy-have a price tag. Policing is more difficult and more costly without suspicion-less searches and seizures, curfews, loitering laws, and the like. But if we permitted the felt exigencies of the time as expressed by strong majoritarian sentiment to prevail, the special status of Fourth Amendment freedoms as constitutional freedoms would be jeopardized. Here, Justice Marshall said it best: “History teaches us that grave threats to liberty often come in times of urgency, when constitutional rights seem too extravagant to endure.”5 Urgent though the times undoubtedly are, and “wrong” as Fourth Amendment rights might seem to some in their inhibiting power, some things are more wrong than rights.
1 See Williams v. Walker-Thomas Furniture Co., 350 F.2d 445 (D.C. Cir. 1965).
2 See Official Journal, City of Chicago, p. 18,293 (June 17, 1992). Eight African-American Aldermen voted against the ordinance, and four did not vote. Those opposed to the ordinance spoke in vehement terms against the racial consequences of such legislation, comparing the ordinance to South Africa’s now-defunct pass laws and to Hitler’s policies oppressing Jews in Germany.
3 The Fourth Amendment promises that “The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated.”
4 See Brinegar v. United States, 338 U.S. 160, 180-81 (1949) (Jackson, J., dissenting).
5 See Skinner v. Railway Labor Executives’ Association, 489 U.S. 602, 635 (1989) (Marshall, J., dissenting).