America's Unwritten Constitution: The Precedents and Principles We Live By (31 page)

Unless the gloves had been used in the crime, in which case they were criminal instrumentalities, and as such subject to government forfeiture! If the defendant didn’t truly own them, then they could indeed be used! Or so clever prosecutors argued—but judges ultimately ruled against them. As the years wore on and jaded judges became increasingly comfortable with exclusion, courts eventually came to exclude items that defendants had never lawfully owned—contraband liquor, illegal drugs, stolen goods, murder weapons, everything.
⁴⁹

By the end of this long line of cases leading up to Justice Black’s mistaken epiphany in
Mapp
, both the Fourth and the Fifth Amendments had been distorted beyond recognition. The Fourth Amendment, to be sure, is all about physical stuff—“effects.” But this amendment was never designed as a rule of criminal exclusion. Indeed, the amendment says nothing at all
to limit its scope to “criminal” investigations. It governs all searches and seizures for all purposes. The Fifth Amendment is indeed a rule of criminal exclusion—but it excludes only a defendant’s compelled
words
and does so largely because these words might well be unreliable (and also because these words might implicate divine punishment for perjury). Physical evidence—gloves, murder weapons, stolen goods, and the like—raise none of these concerns. These two quite distinct amendments, the Fourth and the Fifth, simply do not add up to form a proper exclusionary rule. Four plus five does not equal 1961 (or 1914, for that matter).

THE WARREN COURT CASE
that exposed the clear error of Fourth-Fifth fusion came exactly five years and one day after
Mapp
. This time, in the case of
Schmerber v. California
, the Court sided against an exclusionary-rule claim. California had forcibly taken a blood sample from a criminal defendant and then used that blood to convict him.
Schmerber
involved drunk driving, and the specific scientific procedure at issue was a blood-alcohol test. Later cases would apply
Schmerber
to ABO blood-typing tests and DNA tests of blood and other biological samples extracted from the defendant’s person.
⁵⁰

Schmerber
drove a dagger through the heart of Fourth-Fifth fusion. The defendant argued that forcing a man to give the government his very blood was an unreasonable Fourth Amendment seizure, and that using his own precious blood to convict him was tantamount to making him testify against himself in violation of the Fifth Amendment. If ever a case could be made for the Fourth and the Fifth Amendments fusing together, this was it. But the Court held that the mere taking of blood was not unreasonable, even if the purpose was to procure a criminal conviction of the blood’s owner; and that no Fifth Amendment violation occurred, because blood was not really a “witness” within the meaning of the self-incrimination clause. Blood was reliable physical evidence in a way that compelled words were not. Blood did not misremember, fantasize, sweat, stutter, get confused on the stand, or easily enable a trier of fact to think it had confessed to a crime when it had not. Nor did blood tempt a defendant into damning his soul by committing perjury.

But if all this was true of blood, it was also true of bloody knives, gloves,
stolen goods, and lots of other items that had been excluded thanks to an overly broad reading of the Fourth and Fifth Amendments,
pre-Schmerber
. After
Schmerber
, the entire edifice of exclusion should have collapsed, because the only principled pillar on which it had rested—Fourth-Fifth fusion—had toppled.

Nevertheless, the Warren Court and its successors mindlessly kept on excluding, in the name of precedent, without ever confronting the fact that no proper principle could support the doctrine once Fourth-Fifth fusion was decisively repudiated. Later cases continued to emphasize the demise of Fourth-Fifth fusion and cut back on the scope of the exclusionary rule, creating myriad exceptions and loopholes but never openly confessing that the whole project of exclusion had become intellectually bankrupt.
⁵¹

The most telling fact about
Schmerber
was that four members of the Warren Court dissented; in their view, the Constitution prevented the government from using a person’s compelled blood sample against him in any criminal case. Today,
Schmerber
’s basic holding—that compulsory blood testing to establish criminal guilt is not categorically impermissible—seems incontrovertibly correct. There was no government brutality involved in
Schmerber
. Nor was the policy at issue a blunderbuss; the government had specific reasons to suspect the accused of driving while intoxicated, and the blood test at issue did not generate embarrassing personal information unrelated to the legitimate governmental interest in the case. (For example, nothing in the test revealed the identity or number of Schmerber’s sexual partners or whether he suffered from incontinence.) Nor did the test improperly coerce Schmerber into professing a love of the government, disclosing his theology, or taking an oath. The test did not invade his mental privacy in any way, and in fact did not even engage his faculties of mind and will. A blood test, after all, can be performed on a corpse.

Today, every state in America routinely performs tests such as this. (Nothing in
Schmerber
required this result. The five-justice majority in
Schmerber
merely enabled each state to choose how to proceed.) The federal government conducts countless
Schmerber
-style tests every day. So does every major liberal democracy in the world. Without
Schmerber
and its progeny—allowing government to compel fingerprints, handwriting
samples, and voice exemplars and to extract bodily fluids and tissues for forensic analysis—a vast amount of modern crime-solving would be off limits. And yet four justices in
Schmerber
were prepared to rule against all of this crime-solving, and to do so via a constitutional holding that could not be undone even by an act of Congress. Without
Schmerber
and its progeny, countless more criminals would escape detection and thus countless more crime victims would suffer (assuming that detection leads to incapacitation and deterrence—and possibly even rehabilitation).

But this is only half of the
Schmerber
story.
Schmerber
also helps innocent persons escape conviction. Today, blood tests not only convict; they exonerate. A DNA test can prove conclusively that someone else committed the murder. Return, briefly, to the preceding chapter’s Hollywood-style hypothetical. Even after our hero succeeds in introducing the bloody knife, he must still link this knife to the real perpetrator. To do this, he may need to enlist the government’s assistance to compel a fingerprint or a blood sample and thereby establish the DNA match. But had the four dissenters in
Schmerber
prevailed, the government could not compel the actual murderer to submit to these tests at the insistence of our innocent hero.

The terse text, standing alone, cannot always determine how broadly or narrowly a given word should be read. Should the word “witness” be read to include blood? Yes and no. Yes in our Hollywood hypothetical. Our innocent hero’s Sixth Amendment right to compel the production of “witnesses in his favor” should be read to explicitly authorize and/or to presuppose that our hero may also compel the perpetrator to undergo a blood test. And no in our Hollywood hypothetical. The perpetrator should not be allowed to thwart this blood test by claiming that he has a Fifth Amendment right not to be compelled to be a “witness” against himself in a criminal case.

Why the seeming double standard? Because both interpretations serve the largest purposes of the document and vindicate the American people’s vision of justice from the Founding to the present. Both interpretations are, in the end, truth-seeking and innocence-protecting. The written words of the various amendments must be understood in light of their larger unwritten context.

Yet four dissenting justices, including both Warren and Black, utterly
missed the point in
Schmerber
, reading words in a way that was textually permissible but ultimately absurd—absurd as measured both by the actual purposes of the Bill of Rights and by the unanimous verdict of democratic societies in America and around the world in the past half-century. The
Schmerber
dissents are like the thirteenth chime of a broken clock, throwing into doubt all the previous chimes. If these four justices were wildly wrong in
Schmerber
, doesn’t this egregious error call into question the soundness of all closely related Fourth-Fifth fusion cases in which their votes were decisive?

Mapp
of course was just such a case. And without the Fourth-Fifth fusion idea underpinning
Mapp
, the exclusionary rule cannot stand as a principled interpretation or implementation of the terse text. In this odd corner of modern case law, America’s unwritten Constitution cannot be squared with the Constitution as written.
⁵²

THE WARREN COURT CONSTITUTIONALIZED A
remarkably participatory and egalitarian system of voting rights featuring a sweeping “right to vote” and a mandate that elections for the federal House and both branches of state legislatures meet the strictly equalitarian standard of one-person, one-vote. Though the voting-rights revolution of the 1960s went far beyond what the Founders had bargained for in the 1780s, and also overread a key constitutional clause from the 1860s, the Warren Court’s voting-rights rulings stand today as rock-solid pillars of modern constitutional law—and rightly so.

FIRST, SOME HISTORY.
The phrase “the right to vote” nowhere appeared in the original Constitution. State law, not federal law, generally determined voting rights at the Founding. If state law (presumably state constitutional law) entitled a person to vote for his state legislature, then and only then could he vote for the federal House of Representatives. State legislatures would themselves elect U.S. senators and decide how presidential electors would be selected. Any attempted uniform constitutional voting rule would have bumped up against the fact that land values varied
widely across the continent. Thus, any fixed national property qualification for voting would likely have been too high in some places and too low in others. Had the federal Constitution simply announced a blanket rule prohibiting all property qualifications for federal elections, this rule would have placed the document out of the mainstream of the 1780s, when most states employed property qualifications of one sort or another. And then there was, of course, the race issue. Some states at the Founding allowed free blacks to vote on equal terms. Others did not, and several—South Carolina springs first to mind—were fiercely unwilling to give the federal government wide authority over states on this sensitive issue.

Slavery added further complications. How should slaves be counted for apportionment purposes? The Founders devised a formula apportioning House (and electoral college) seats across state lines—the infamous three-fifths clause—but that formula said nothing about how seats should be apportioned within each state. It was thus left up to each state legislature in the first instance to determine how to balance power between slaveholding and nonslaveholding regions within that state’s congressional delegation. Let us also recall that the Article IV republican-government clause was not widely understood at the Founding as giving the federal government sweeping power to restructure state legislatures in the name of reform. Had the clause been so understood, it might well have been a deal-breaker for many southerners anxious to maintain control over this most tender of topics.

In the absence of strict federal oversight of their voting and apportionment practices, antebellum states drifted apart. By the middle of the nineteenth century, most northern states had abolished property qualifications and approximated universal adult male suffrage. (Many had racial qualifications, but these exclusions did not warp the basic power structure, given that free blacks formed a tiny minority in most northern states.) Many southern states, by contrast, had developed apportionment systems that gave extra clout to their plantation belts, enabling aggressive advocates of slavery to wield added power in various state legislatures and congressional delegations.
⁵³

As time passed, malapportionment undermined the very foundations of these increasingly intolerant and inegalitarian southern regimes. In-state
residents and out-of-state speakers who tried to speak, print, preach, petition, or assemble in opposition to slavery and the slavocracy faced a dramatic narrowing of freedom of expression. By 1860, much of the South had become a closed society controlled by slaveholding elites contemptuous of democracy, equality, and free speech. In 1861, the political leadership of the Deep South ordered the shelling of Fort Sumter because these men could not abide the results of a legitimate national election that they had lost, despite getting boatloads of extra electoral-college votes thanks to their slaves. And the war came.
⁵⁴

In its wake, the phrase “the right to vote” found its way into two of the three Reconstruction Amendments. But there was a catch. The first clause to use this phrase—section 2 of the Fourteenth Amendment—did not absolutely guarantee any right to vote, but merely penalized states that abridged this right by reducing their representation in the House and electoral college. And the second clause to use the phrase—section 1 of the Fifteenth Amendment—prohibited only disfranchisements based on “race, color, or previous condition of servitude,” leaving untouched other suffrage restrictions based on property, poll-tax payment, education, literacy, and so on.

A half century later (1920, to be precise), the Nineteenth Amendment repeated the phrase “the right to vote,” this time to prohibit sex-based disfranchisement. In 1964, at the high tide of the Warren Court, still another amendment—the Twenty-fourth—featured the phrase as part of its ban on poll-tax-related disfranchisements in federal elections.