The Case Against Official Immunity

When the Herring decision limiting the exclusionary rule came down last week, the conservative columnist Jonah Goldberg praised it, declaring that "According to the exclusionary rule, a cop who breaks the rules to arrest a serial child rapist should be 'punished' by having the rapist released back into the general public. (Or as Benjamin Cordozo put it in 1926 when he was a New York state judge, 'The criminal is to go free because the constable has blundered.') But the officer, while frustrated, isn't really punished. The people punished are the subsequent victims and their families."

I agree with Glenn Reynolds' reply:

[T]his is the classic argument against the exclusionary rule, and it's a pretty good one. The other classic argument against the exclusionary rule is that if you're actually innocent -- if the police search you unreasonably and don't find anything -- the rule does you no good because you've got nothing to exclude anyway.

These are good arguments and I'd be happy to scrap the exclusionary rule and return to the framing-era approach that put the constable at risk for personal liability whenever there was an unreasonable search or arrest, unless he had a warrant, in which case the magistrate who issued the warrant might be at risk if the warrant was improperly issued. But modern doctrines of official immunity -- which are basically judge-made, and a result of "judicial activism" of the first order -- make that impossible. There's no constitutional basis for immunity on the part of police or their supervisors; it's just something judges think is a good idea. Nonetheless, it's not going anywhere -- as part of my efforts to get something done about no-knock raids, I was recently told that, even in the Democratic Congress, it's not going to be possible to do anything about official immunity.

Meanwhile, if you reward negligence, by letting cops who are negligent arrest people they'd otherwise be unable to, the cops -- and, more importantly, their superiors, who might otherwise look bad if a guilty person is allowed to go free -- wind up incentivized to be negligent. That increases the risk that innocent people will be subjected to unreasonable searches. In this imperfect world, the exclusionary rule is pretty much all we've got. But hey, if Jonah wants to join me in a campaign to get official immunity abolished or cut back, I'm ready.

[Via Grits for Breakfast.]

Comments

[kwais]

Seriously,

Why should a cop have any rights that every citizen does not have?

The duty of the cop is the duty of every citizen, the cop just does it as his job.

[Taktix?]

Why should a cop have any rights that every citizen does not have?

The duty of the cop is the duty of every citizen, the cop just does it as his job.

Because only your betters become police officers.

Now stop question the authorities...

And eat your vegatables...

[Warren]

There's an even bigger concern, if the remedy is personal liability. A cop that violates a citizen's rights, is far less likely to be punished if the citizen is actually guilty. In the event that he blunders, he will be under great pressure to plant evidence and knowingly frame an innocent.

[Alan Vanneman]

"But modern doctrines of official immunity -- which are basically judge-made, and a result of "judicial activism" of the first order -- make that impossible."

Hey, wait a minute! I thought "judicial activism" was a good thing, something we need to protect us from soft-headed liberal Democrats, who unfortunately seem to win a lot more elections than Libertarians do these days. Remember good old Justice Thingummy, who would have protected us against laws setting minimum wages for women? Up with Thingummy! Down with democracy!

[Copoligist]

Oh great, another cop bashing thread. Don't you people understand you only have the rights the police see fit to let you have? Objecting to a cavity search with a splintered night stick is resisting arrest and obstructing justice. I hope you all get raped and killed and the cops just stand outside and laugh. It's just a few bad apples. Etc.

[The Wine Commonsewer]

Even without revoking immunity, if we could just get the cop fired for crossing the line, that would be a big improvement.

Fired. Fired. Fired.

[Abdul]

Official immunity is not just for cops, it's for all sorts of public officials--firefighters, teachers, etc. (There's an H&R post today on the case of the high school principal who had a student strip searched and was initially covered by qualfied immunity).

The rationale behind official immunity isn't that stupid. Cops, firefighters, etc. are called to act in situtations which involve split-second decision-making on life and death issues. As a society, we don't want cops or firefighters responding to an emergency call being afraid they'll get sued if they drive too fast and wind up in an accident.

That said, some arrangement where governement agencies would have to pay damages where their employees clearly violated the constitution would protect both the factually guilty and the innocent from Fourth Amendment violations, and still hold cops acoountable.

[Naga Sadow]

TWC,

Or given a cavity search with a splintered nightstick.

*inspired by copologist*

[nobody u no and big fan of joe]

guantanamo is full of people who need immunity and it should be official.

[P Brooks]

return to the framing-era approach that put the constable at risk for personal liability whenever there was an unreasonable search or arrest, unless he had a warrant, in which case the magistrate who issued the warrant might be at risk if the warrant was improperly issued.

Actually making people directly responsible for their actions? Isn't this what we, as a society, have been trying to eliminate for the past forty years?

[The Wine Commonsewer]

Abdul, gotta disagree with you. I understand the rationale behind the immunity but I don't care. McDonalds doesn't get immunity and neither should the 6th Precinct House.

To go back to my favorite example: Wyatt Earp did not get immunity for blasting the Clanton Boys despite his badge and decision to enforce the Tombstone ban on open carry within the town limits. He was tried and acquitted.

If it's good enough for America's most famous lawman, it is good enough for every one of the Boys in Blue.

[Elemenope]

That said, some arrangement where governement agencies would have to pay damages where their employees clearly violated the constitution would protect both the factually guilty and the innocent from Fourth Amendment violations, and still hold cops acoountable.

This. A similar reason to why ticket or infraction penalties should not pay into law enforcement budgets. Whereas citizens and even politicians may be powerless to persuade police to behave, a chief or captain looking at his or her dwindling operational budget as a result of judgments of liability against the department might prevail.

[Taktix?]

If it's good enough for America's most famous lawman, it is good enough for every one of the Boys in Blue.

Or, to put into terms cops understand:

If they're not doing anything wrong, why do they need the immunity?

[Pro Libertate]

Elemenope,

I have long thought that fines were not the way to go, simply because of government's usual voracity for revenues. Make something a major revenue source, then step back and watch the abuse. Traffic and parking tickets, civil forfeiture, traffic light cameras, etc., etc.

[Episiarch]

According to the exclusionary rule, a cop who breaks the rules to arrest a serial child rapist should be 'punished' by having the rapist released back into the general public.

This is assuming that the cop is correct in the first place that he has the right guy. The cops can't even hit the right house half the time. You're going to trust their "instincts" and evidence gathering skills?

Goldberg, you are a fuckhead of the first order. No...no. Of the zeroth order.

[Fluffy]

The other classic argument against the exclusionary rule is that if you're actually innocent -- if the police search you unreasonably and don't find anything -- the rule does you no good because you've got nothing to exclude anyway.

I don't think this is true.

Procedural requirements to conduct searches protect citizens from harassment.

If there's no exclusionary rule, the cops would have every incentive to just repeatedly search the person and property of people they don't like without obtaining a warrant, because maybe someday they'll find something incriminating. The necessity to obtain a warrant limits the frequency and number of searches as well as the propriety of them.

Also, if police have warrantless access to your property they can easily plant evidence of the large number of contraband-type crimes. [The new use of forensic evidence makes it easier than ever before to plant evidence of other types of crimes, too.] In the absence of the exclusionary rule, a police officer who does not like a citizen can stroll on to someone's property, drop a firearm or sprinkle some crack on the ground [or perhaps a bloody glove], and then claim he made a "good faith mistake" and that the evidence should be admissible. The requirement to present evidence of probable cause for the search to get a warrant makes this much more difficult, because you have to have evidence other than what a cop could plant before you can actually conduct the search. This limits the scope of potential police abuses.

The exclusionary rule keeps the US from being like Mexico, where police can just claim to have found something in your car or hotel room and demand a bribe, as they routinely and repeatedly do to American tourists.

[Kolohe]

McDonalds doesn't get immunity and neither should the 6th Precinct House.

It does in the sense that the corporation was sued for that coffee thing and not the asst morning shift manager. (or that he or she was not charged with assault)

I find a lot of overlap between soveriegn immunity and 'corporate personhood' in both theory and practice. There's some practical benefit to both, but there is definitely also some need of some reforms.

[Pro Libertate]

I have less trouble granting limited immunity to individual government actors than I do with giving the government a pass in the first place. Immunity doesn't work for individual actors, anyway, if they act outside the scope of their authority. When we have a government of limited and defined powers, that scope is more clearly defined. When we don't, we end up with what we have now--no government figures ever get in trouble for Constitutional excesses, and the government itself rarely has to pay directly for its sins.

[T]

It does in the sense that the corporation was sued for that coffee thing and not the asst morning shift manager. (or that he or she was not charged with assault)

The manager most certainly can be named in a lawsuit, as can the minimum wage drone that made the coffee. However, nobody does that because the manager and the coffee boy have no appreciable assets. All you get for suing an assistant manager at McDonalds is a McTie and a garnishment order on some schmoe who makes $30K a year. Hardly worth the legal expense involved.

[SIV]

It does in the sense that the corporation was sued for that coffee thing and not the asst morning shift manager. (or that he or she was not charged with assault)

Of course neither did anything wrong.The injury was caused by the customer.

[Abdul]

It does in the sense that the corporation was sued for that coffee thing and not the asst morning shift manager. (or that he or she was not charged with assault)

What you're referring to here is the doctrine of respondeat superior (the master shall answer). It's a common law doctrine that employers can be held liable for the acts of their employees.

Official immunity is different. It protects government officials who are acting in their official capacity from tort liability.

[Mo]

The rationale behind official immunity isn't that stupid. Cops, firefighters, etc. are called to act in situtations which involve split-second decision-making on life and death issues. As a society, we don't want cops or firefighters responding to an emergency call being afraid they'll get sued if they drive too fast and wind up in an accident.

The cop blaring his siren and running red lights to respond to an emergency should and likely will not be held liable, the one doing it because he doesn't want to wait in traffic likely will. The way things are now, neither are punished, when the latter should be.

Also, there are private sector jobs that deal with life and death situations that do not get immunity, such as private security.

[libertymike]

There is no case to be made for immunity, be it for Caesar or any of his individual parasites. Each and every individual state actor should face the prospect of ruinous damages should they violalte, interfere with or even attempt to interfere with one's liberties.

The prospect of facing ruinous damages is a concept championed by many in the founding era. This fact is reflected in the names of such towns as Camden, Maine, Camden, New Jersey and Wilkes-Barre, Pennsylvania.

[ktc2]

No person or corporation should EVER be immune from the consequences of their own actions.

[Pro Libertate]

The benefit of leaving every government actor personally liable is that it would bring government action to a standstill, especially in a litigious society. However, that might be overkill. I think some very limited immunity is necessary just to keep government functional and not bogged down in constant litigation. On the other hand, as a libertarian I have enough anarchist in me to find the no-immunity argument at least somewhat appealing. And maybe government wouldn't be so nonchalant about creating ridiculous causes of actions against individuals and companies if it had to deal with them as well.

[R C Dean]

Cops, firefighters, etc. are called to act in situations which involve split-second decision-making on life and death issues.

If that's really the reason for sovereign immunity, then at a minimum the scope of the doctrine needs to be drastically narrowed to apply only to emergency responders responding to an emergency.

But its much, much broader than that, sweeping in every petty bureacrat wearing a butt-crease in a chair. So I kind of doubt that's the real reason for it.

Note, also, that emergency response justification wouldn't apply to a lot of what cops do, either. Serving a warrant, for example.

[libertymike]

Fluffy's post is right-on.

Moreover, in the hierarchy of values, the vindication of constitutional rights is far more important than whether state actors will hesitate to act out of fear of being sued. In fact, that is just what the founders wanted. All state actors should ask themselves, could I be sued if I do x or y. They should think and deliberate upon these questions, long and hard.

[R C Dean]

However, nobody does that because the manager and the coffee boy have no appreciable assets.

That, and they make attractive defendants. What juror is going to vote for millions of dollars in damages against a real person? Knowing that the liability is joint and several, and that the real person will be impoverished for life trying to pay it off?

[libertymike]

Pro Lib-

The framers did not think that immunity was necessary in order to keep the government functioning. IMO, that argument is a red herring.

[TrickyVic]

It's not difficult to see that many have signed up on the it's ok to be evil and break the law in order to get the bad guy. If you are authority, the ends justify the means. Goldberg is one of many. He wants to do away with anything that restricts the cops.

I have been amazed, probably shouldn't be, how many people who claim to be rule of law support law breakers as long as the law breaker is on their team.

[Pro Libertate]

Did the Framers actually reject immunity? I'm not sure that's correct. I'm willing to accept that immunity should be narrowly construed or even tossed out altogether, but I think it's been an accepted doctrine for some time now.

One problem, of course, is that the scope of federal power is far, far greater than it was intended to be. This type of immunity was supposed to be a state question, not a federal one.

[Episiarch]

Goldberg is one of many. He wants to do away with anything that restricts the cops.

Goldberg and the other idiots who feel this way just cannot conceive of ever being on a cop's bad side, or doing anything that would pull them onto a cop's radar.

Now if, for instance, a cop started having an affair with Goldberg's wife, he might suddenly discover a new found love of the exclusionary rule.

[SugarFree]

Epi,

a cop started having an affair with Goldberg's wife

That's a stretch.

[TrickyVic]

"""If that's really the reason for sovereign immunity, then at a minimum the scope of the doctrine needs to be drastically narrowed to apply only to emergency responders responding to an emergency."""

I would agree with that as long as emergency responder was defined as anyone responding to an emergency and not just authorized emergency personnel.

""""The exclusionary rule keeps the US from being like Mexico, where police can just claim to have found something in your car or hotel room and demand a bribe, as they routinely and repeatedly do to American tourists.""""

Fruits of a posionous tree is a phrase I haven't heard in a decade or so regarding the exclusionary rule.

[Episiarch]

That's a stretch.

Damn. You fucked up your link, by the way, but one can just delete the extra " from the URL.

Let's say a cop had an affair with his dog, then. The real dog, not his wife. And then shot it.

[libertymike]

Pro LIb-

1. Where in the constitution does it say that the courts can create such a doctrine?

2. You do know why the towns I listed above were named as they are?

3. The backdrop of the founders included the Entick case and its principles.

[SugarFree]

You fucked up your link

Damn.

[SugarFree]

2nd try.

[Pro Libertate]

libertymike,

It's been a long time since I've even thought much about immunity, but it's a fact that the Founders didn't actually fill in all of the powers that they thought the government should and did have. Inherent powers that stem from sovereignty arguments were approved of and accepted right out of the gate. Do I necessarily agree with that? No, but that's not the question here.

[joe]

Seriously,

Why should a cop have any rights that every citizen does not have?

This whole "official immunity" description of the issue is exactly backwards. Cops don't have any immunity that ordinary citizens lack here. In fact, the police are much MORE regulated in this area than ordinary citizens.

If someone who isn't a government employee or agent questions a suspect without council, or breaks into a house without a warrant, and gets evidence, that evidence would NEVER be excluded. It's only when gather evidence AS AN AGENT OF THE STATE that the exlusionary rule applies at all.

Think about that case where the homeowner killed the cops, who raided his house because a burglar said he had cannabis plants. It was perfectly legal to use the burglar's word to get a warrant, and would have been legal to use in court during a trial. Whereas, if a police official had broken into the house with no warrant, his testimony and any evidence found during searches conducted based on what he reported, would be thrown out under the exclusionary rule.

This is a matter of how much MORE the constitution restricts the police than private citizens. Framing it in terms of special rights for the police is exactly the opposite of reality.

[joe]

For the record, I am incredibly wary of any proposal that would make it easier for the government to use tainted evidence in court, but haven't made up my mind on the exlusionary rule/civil liability question, because the other side raises some very strong arguments about their method producing even MORE of a disincentive to cheat.

[The Wine Commonsewer]

Official immunity is different. It protects government officials who are acting in their official capacity from tort liability.

Yessirreee. More tricks and technicalities from the legal profession with the intent to obscure rather than clarify.

I am a simple kind of guy. For instance, I would agree with SIV, if you spill coffee in your lap, as Mrs TWC did this morning, well, sorry about that.

For secondary instance, I have not yet figured out why I would be liable if you slipped on the porch steps and broke your ankle. Does not compute. It's what most of the civilized world calls an accident.

[Episiarch]

joe, if you break into that house and see some pot plants, you cannot personally arrest the owner. A cop can. So he doesn't necessarily have "rights", but he does have privileges that other people don't. The restrictions you note are imposed on him because of those extended privileges.

Also note that you would be arrested for breaking into a person's house. If a cop does it with a warrant, it's fine. Cops can sell drugs and buy drugs, ostensibly to catch drug dealers. You can't.

[The Wine Commonsewer]

The benefit of leaving every government actor personally liable is that it would bring government action to a standstill

SWEAR TO GOD? That would be so cool!

And you make an excellent point about the litigious nature of our culture. It is hard to get rid of immunity until you reform the legal system (which is never going to happen). The idea is sort of analogous to RP saying you cannot have open borders with a welfare state.

[joe]

Episiarch,

joe, if you break into that house and see some pot plants, you cannot personally arrest the owner. Right, and that's why there are rightfully more limits on the police than on private citizens. I don't disagree at all.

[Pro Libertate]

TWC,

Thus the appeal of throwing out immunity.

joe,

I don't think I understand what you're saying. I break into someone's house to stop a crime, I'm potentially liable for my actions. A cop isn't, provided that he can argue that he acted under the color of government authority. If that authority is viewed broadly, the practical effect is that he isn't liable at all.

[joe]

Pro Lib,

I'm talking entirely about the admissability of evidence under the exclusionary rule. My comment has nothing to do with qualified immunity.

Since both of those issues are taken up on this thread, I guess I should have made that clear earlier.

[Pro Libertate]

joe,

Well, that's kind of the point. We have the special restrictions of the Exclusionary Rule precisely because of the absence of any real liability for misuse of power. I favor the rule myself because nothing else will slow down the law enforcement juggernaut right now.

[Isac Bartram]

It was perfectly legal to use the burglar's word to get a warrant, and would have been legal to use in court during a trial.

It would be legal if the burglar had been arrested for burglary and had given that information during questioning. It would be an entirely different matter if the guy had committed the burglary on the cops' instructions, say, to get a better deal in some other case.

In the Ryan Frederick case there's a lot of reasons to suspect the latter scenario.

Other than that I agree with your post in general.

[joe]

Right, Isaac. The standard is "acting as an agent of the government."

[Fluffy]

It's been a long time since I've even thought much about immunity, but it's a fact that the Founders didn't actually fill in all of the powers that they thought the government should and did have. Inherent powers that stem from sovereignty arguments were approved of and accepted right out of the gate.

Approved of and accepted - by which founders?

As far as I can tell, the legislative history of the ratification of the US Constitution can be summarized in a little one-act play:

Federalists: "We have a national government with certain powers."

Anti-Federalists: "OK, let's write down exactly what those powers are."

[Group gets together and argues about powers. Anti-federalists read final document.]

Anti-Federalists: "OK, we read this final document, and we can only go along with it if we add some amendments that make it absolutely clear that these powers don't override certain rights of the people."

Federalists: [twirling moustaches and laughing like villanous dickwads] "Why, sure, we agree with that. We'll add your precious amendments!"

[Anti-federalists leave room.]

Federalists: [breaking the 4th wall] "Little do they know we have an insidious plot to make up all sorts of reasons why the federal government has all these extra powers we didn't list, and why the amendments don't actually restrict the use of government power when we think we have a really good reason. BWAHAHAHAHAHAHA!"

[Pro Libertate]

Well, I suppose one of the professional liabilities of practicing law is having seen how things evolved in constitutional jurisprudence. As a libertarian, I have my own thoughts about what should have happened, of course. Let there be no mistake, though--the Constitution has been under assault since very early on.

[Pro Libertate]

One truly awful experience for libertarians in law school is studying the Commerce Clause's history in Con. Law, often for weeks, then realizing on the exam that when Congress says it's operating under the Commerce Clause, that really means that it's operating under the general police powers that your professor said the federal government didn't have. Unmutual moment, that.

[BakedPenguin]

Somewhat related, and sure to ruin your week- (imagine 200 Balko posts) police and prosecutorial misconduct.

[Kolohe]

That's a bit unfair to the Federalists. The federalists were of the opinion, 'why do we need amendments? We listed what the government do. It's not going to be able to do anything else.' And the anti-federalists were like, 'yeah, as if!' and the federalists went, 'ok, whatever.'

Of course, the anti-federalists were correct, as their leader wound up buying Louisiana and engaging in an undeclared war with North Africa. (true, only after the federalists had already wiped their butts outright with the first amendment)

[lunchstealer]

As a society, we don't want cops or firefighters responding to an emergency call being afraid they'll get sued if they drive too fast and wind up in an accident

[lunchstealer]

As a society, we don't want cops or firefighters responding to an emergency call being afraid they'll get sued if they drive too fast and wind up in an accident killing someone.

Fixed that post.

[ChrisO]

Approved of and accepted - by which founders?

Uh, pretty much all of them, AFAIK.

The states were *pre-existing* sovereigns before the Constitution was drafted. The main purpose of the Constitution, at least before 1868, was to set forth the structure and powers of the federal government and provide a clear understanding of division of power between the fed and the states.

The states did give up some of their sovereignty over such things as printing money and tariffs, etc. But criminal justice was not one of those things. Prior to the Civil War amendments and subsequent judicial interpretations (the Incorporation Doctrine), none of the provisions of the U.S. Constitution relating to criminal law applied to the states. They could rough you up in any way they pleased (or at least in any way that didn't violate their own state constitutions)

I don't believe the issue of states' basic sovereign immunity came up during the Constitutional Convention primarily because it was simply an assumed thing among all present. The doctrine itself is ancient.

[The Angry Optimist]

ChrisO -

Even though I know you're right about the incorporation doctrine, can anybody explain to me WHY the drafters of the Constitution would guarantee say, 4th Amendment protections but then NOT impose them on the states?

And hear me out on this: almost nobody lived in DC and there really wasn't a federal police force or invasive military to speak of...so...why enumerate rights and then not have them apply to 99.5% of cases?

makes no sense to me.

[Elemenope]

Even though I know you're right about the incorporation doctrine, can anybody explain to me WHY the drafters of the Constitution would guarantee say, 4th Amendment protections but then NOT impose them on the states?

And hear me out on this: almost nobody lived in DC and there really wasn't a federal police force or invasive military to speak of...so...why enumerate rights and then not have them apply to 99.5% of cases?

makes no sense to me.

My suspicion is that they had just dealt with an invasive military, and as such these things were foremost on their mind. I imagine, esp. give the powers granted in Articles I and II, that they understood or at least suspected there eventually would be a sizable military/police force under the command of the Federal government.

[Federal Dog]

"That said, some arrangement where governement agencies would have to pay damages where their employees clearly violated the constitution would protect both the factually guilty and the innocent from Fourth Amendment violations, and still hold cops acoountable."

Actually, that would simply place the burden of paying on taxpayers. Unless there is some provision mandating removal of officers involved, the cops can readily continue bad conduct and force the public to bear the full price of any levied sanctions.

[The Angry Optimist]

But El, there are warrant requirements in the Fourth, which a military would not need.

The lack of incorporation really makes no sense to me: you state an individual right be secure in your effects and then implicitly state that only applies in DC and when dealing with federal agents?

So, El, why not impose the BoR on the States?

[Fluffy]

ChrisO,

The only amendment that refers to limits on "Congress" is the 1st.

The other amendments clearly list rights enjoyed by all citizens and never required incorporation. Maybe the courts were slow to recognize this, but it's pretty apparent.

The 4th amendment starts out, "The right of the people to be secure in their persons..." and makes no reference to either the state or federal government. If this is a right of the people, it can't be abrogated by any level of government. Right?

The 6th amendment reads, "In all criminal prosecutions, the accused shall enjoy the right to a speedy and public trial...etc." The italics are mine, but it seems to me that state prosecutions fall under the heading of "all".

Etc.

[Kolohe]

At the time the Constitution and the Bill of Rights were ratified, most of the states already had most of the same things in their state contitutions (iirc, the bill of rights is pretty much copied from the Virginia Consitution). So at the time, explicit incorporation was probably seen as redundant.

[Kolohe]

And as a practical matter, incorporation only became necessary because someone had to say "hey, South, whenever something says 'people' it means black people too."

[Elemenope]

So, El, why not impose the BoR on the States?

Well, and this is where it gets dicey, we know from the Congressional record that Madison introduced some amendments with more language specific to incorporation, and they were shot down.

Part of the problem was that all the named protections in the ten, AFIAK, were already duplicates of protections by *all* the state constitutions. Since at the time the constitution was mostly understood as a pact among states, the overriding concern was to make sure that the Fed couldn't arbitrage the difference in wording or whatever between rights in individual states by making sure the Fed constitution included unambiguously at least the protections that all the states did individually.

[ChrisO]

Fluffy, that makes eminent sense. I'm not entirely sure why the Bill of Rights applied only to the federal government...other than the fact that such application is only implied, and that the 9th and 10th Amendments, read together, would seem to require that any restrictions on the power of the states be ennumerated.

[ChrisO]

I see my response is late and inadequate... Oh well, such is the Internet.

[Elemenope]

And as a practical matter, incorporation only became necessary because someone had to say "hey, South, whenever something says 'people' it means black people too."

The North and the West weren't exactly angels about that either. I tend to think that Incorporation was inevitable and necessary even without the hash of things that slavery and its legacy made.

[D.R.M.]

The Angry Optimist:

You're actually explaining why it was argued a Bill of Rights was unnecessary. The rights of the people against state governments were already guaranteed in bills of rights in their state constitutions. Since that covered 99.5% of all cases, who needed a federal one?

Well, the Anti-Federalists just wanted to be sure, so we added one that covered the other 0.5% of cases. There was no reason to make it apply to the states because the states already had their state constitutions with bills of rights.

The idea that we needed the Federal Government to police people's rights against violations by the states was not on the mental horizon; the states had just spent a revolution defending the rights of the people against a central government. Giving the Federal Government a bunch of excuses to intervene against the states, even in the name of the protection of rights, was seen as a potential threat to liberty.

Obviously, it was later clear that the states couldn't be trusted to defend the liberties of all their citizens, and the Fourteenth Amendment was accordingly put through.

[Kolohe]

The North did it through social (and economic) rather than political channels. And the West really didn't do it at all (systematically), until the crime wave starting in the late 60's led to a law&order backlash - which is the root cause of the current state of erosion of civil liberties (for everyone)

[dunphy]

"The cop blaring his siren and running red lights to respond to an emergency should and likely will not be held liable, the one doing it because he doesn't want to wait in traffic likely will. The way things are now, neither are punished,"

simply not true. heck, a local cop here was charged with reckless driving for doing exactly what you describe.

"joe, if you break into that house and see some pot plants, you cannot personally arrest the owner. A cop can."

false. in many states, a citizen COULD make an arrest of the owner. citizen arrest laws vary state to state, but it's false to say you cannot persnally arrest the owner. not that it would be PRUDENT to do so, but it would be statutorily permitted in many jurisdictions.

one thing is clear, while the exclusionary rule is far from perfect, it has acted to help curb police in violating rights. if you talk to any defense attorney who worked before it was implemented (via Mapp), they will tell you the difference it has made.

[Dave W.]

Mr. Walker should have just quoted my comments here. more punchy and to the exact same effect. O, wait, I am not famous enuf in the blogosphere. Nevermind.

[James Anderson Merritt]

"it's a fact that the Founders didn't actually fill in all of the powers that they thought the government should and did have. Inherent powers that stem from sovereignty arguments were approved of and accepted right out of the gate." -Pro Libertate

PL - Is there anywhere online that attempts to catalog those "Inherent powers" that were later assumed by the government (and accepted by the Founders)? Or would you care to provide a few examples? I find it very odd that a document that takes pains to make explicit the power of taxation -- to take just one "inherent" power of nations -- and to put certain restrictions upon it, and which further states that all powers not delegated to the Federal government are denied to it, could be interpreted as consistent with undeclared, "inherent" powers of sovereign nations. Has anyone actually tried to challenge this idea in court? If so, what was the government's defense? (I can certainly understand why anyone in government might espouse the idea, as it makes their jobs that much easier, but as I was taught, the purpose of the Constitution was NOT to make the government's job any easier when it came to divesting citizens of their rights.)

[R C Dean]

One truly awful experience for libertarians in law school is studying the Commerce Clause's history in Con. Law, often for weeks, then realizing on the exam that when Congress says it's operating under the Commerce Clause, that really means that it's operating under the general police powers that your professor said the federal government didn't have.

Scarred me for life. The utter, craven dishonesty in saying that wheat that never leaves a farm is in interstate commerce still rankles.