A ‘Constitutional Moment?’ : Insisting the crime problem is unique, people are ever more willing to abandon the Bill of Rights.

These days, Americans seem to be driven mad by the fear of crime. Whether the public is influencing the politicians or vice versa, a perverse consensus is developing between voters and their elected leaders that we have reached such a catastrophic crisis that we must summon the courage to take extraordinary measures.

Some call for decisions that would cross legal boundaries even the most conservative judges see as clear, bright lines of constitutional protection--as in the call to legalize “sweeps” of inner-city public-housing apartments to search for weapons. Congress contemplates the death penalty for drug crimes that do not result in death--in the face of even a Burger Court precedent that would seem to make such a law flatly unconstitutional. The “three strikes” laws passed in California and other states and now before Congress push the cruel mathematics of habitual-offender status at least up to the line of “cruel and unusual” punishment. And in recent polls, half of Americans responding approve a sentence of physical torture by caning for a young American accused of vandalism in Singapore.

Among politicians, much that we hear is demagogic blather--not to be taken seriously except as a sign of the pathology of media politics. But to the extent that politicians and public are sincere in their calls for the new measures, this reflects something subtler, if perhaps more dangerous, in our political life. It is a kind of historical egotism or arrogance--a sense that our time is unique, so different from “ordinary” times that fundamental changes in our constitutional principles must be made. It is as if we take a conceited pride in our fear as having exceptional historical significance.

Though we face serious crime problems in the United States today, we are not in a “constitutional moment.” For one thing, though serious crime is certainly far higher than during the relatively peaceful ‘50s, the greatest increase occurred during and just after the Vietnam War. For most Americans, the risk of violent crime has been on a slight, if erratic, decline in the last decade.

Politicians and voters will say crime is worse than ever and getting worse every day. This is false, but many Americans, projecting a variety of social insecurities onto the crime issue, seem captivated by the belief that they live during an unprecedented criminal epidemic.

Surely, many are legitimately fearful--especially of the apparent randomness of some types of violence. But many Americans now seem in love with the thought of being justified in their state of outrage. Research has shown that a frightening portion of Americans, when asked in the abstract, are ignorant of or even hostile to provisions of the Bill of Rights dealing with criminal justice. Others say these provisions are, at best, abstract principles that must give way to the unique exigencies of the time.

Some years ago, Yale Law Prof. Bruce A. Ackerman coined the term “constitutional moment” to describe those phases in U.S. history where social and political forces converged to require fundamental changes in our governmental system and principles.

One such “moment” was the Civil War and its aftermath. The end of legal slavery called for major constitutional amendments and federal civil-rights legislation that sharply altered the demands that the national government could make on the states to ensure legal equality.

A second “moment” occurred 70 years later, when the traditional relationship between Congress and the states seemed impotent to deal with the social consequences of a complex national economy never contemplated by the Framers. Under the New Deal, a political consensus developed for federal legislation drastically expanding Congress’ power under the commerce clause, and for a new Supreme Court jurisprudence fitting these laws into a coherent constitutional frame.

One reason for these constitutional restraints is that, even if they seem like pedantic inconveniences in particular situations, our judicial system cannot easily limit breaches of the constitutional rules to specific cases. For example, if the Supreme Court were to permit re-imposing the death penalty on the most vicious class of drug kingpins, that decision, however limited at the time, could become the precedential rationale for approving the death penalty for a host of non-homicide crimes that we long ago realized were devices for the most flagrantly arbitrary and racist penalties.

Fourth Amendment law has a complex and tortuous history, and many liberals believe the Burger and Rehnquist courts have dangerously weakened Fourth Amendment protections. But if one basic judicial construction of the Fourth Amendment has survived all the political buffeting, it is the rule that unless police have a warrant, or specially defined exigencies are proved, they cannot enter a person’s home even if they have probable cause to believe there is evidence of a crime at this particular time and place. (The proposed public-housing sweeps do not even meet the probable-cause criterion.) Breach that wall and it will be hard to resist legal arguments for military-style sweeps of homes on all sorts of government-contrived pretexts, or for highly selective sweeps that seem aimed at minorities.

Nor is this concern for unintended consequences limited to judicial precedent. However crazy, the “three strikes” laws are probably not unconstitutional under current Supreme Court doctrine. But in our complex system of separated and partly overlapping governmental powers, legislatures have a bad habit of creating messes that someone else has to clean up. As they demonstrate their toughness, they bamboozle the public into believing these measures can be had without tax increases or without bankruptcy-threatening costs on cities and counties that have to foot most of the bill for overlogged criminal-justice calendars.

Ironically, if one area of American life might justify a sense of unique exigency, it is the inner city--where the risk of residents becoming victims of criminal violence is wildly disproportionate to the risk that the middle classes face everywhere else. But if that urban condition constitutes a “constitutional moment,” the remedy can hardly be to solve the problem by re-empowering the states to impose martial law at the voters’ discretion. That would not be a constitutional innovation designed to meet changing times as much as a terrifying reversion to a world that constitutional government was designed to prevent.*