Bill of Rights on Life Support

It’s official. With the ruling in Fernandez v. California this week, the United States Supreme Court has just reclassified the Bill of Rights from endangered to dying. I know that sounds like hyperbole, but if there was ever a time to sound the alarm bells, it is now.

Without getting into all the technical details, the Court just said that if two occupants of a house disagree about whether to give police consent to search, the police do not have to get a warrant to search the home. If there is only one occupant and he or she refuses entry, the police can wait around until another occupant arrives home and keep trying until someone arrives who gives consent. ┬áIt may not sound like a big deal at first glimpse, but the home is supposed to be the most sacred temple in Fourth Amendment jurisprudence. It is the one place where the warrant requirement–up until now–remained the general rule, and exceptions were viewed extremely suspiciously by liberal and conservative justices alike. Even in consent cases, the court has traditionally placed the burden of showing knowing and voluntary consent on the state. Justice Alito’s opinion amounts to flipping the bird at that tradition. The whole doctrine of consent is now muddled.

Alito’s opinion gives considerable attention to the burden on police of having to get a warrant and the social detriments and increased crime that result. Apparently Alito doesn’t understand that the whole point of the Bill of Rights is place checks on government power–to make their efforts to infringe on individual liberty more difficult. If you take this “warrants make cops’ job harder” analysis to it’s logical conclusion, preventative detention would be acceptable, so long as it makes stopping crime easier for police.

Here is what the Fourth Amendment actually says: “The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.”

The Fernandez opinion is authoritarian judicial activism at its worst. The job of the Supreme Court justice is not to be a policy advocate for law enforcement, but to safeguard the values of our founding documents. If the justices who joined the majority opinion want to lock up bad guys, they should go be prosecutors. Meanwhile, they should stop abusing the power of their position to advance a pro-law enforcement agenda.

I am so thankful to live in Massachusetts, where Article XIV of the Massachusetts Declaration of Rights, provides citizens additional protection against unreasonable searches and seizures. As far as I am concerned, Fernandez should not have any effect on what police may permissibly do in Massachusetts home searches.

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