Pre Script
January, 2002
The events of September 11, 2001 bring forth new concerns regarding constitutional limitations imposed on United States governments. For the first time in the history of the Republic a significant foreign terrorist attack on America's homeland resulting in massive loss of life has occurred. Constitutional obligations to "provide for the common defense [and] promote the general welfare" must now receive new definition. Implacable stateless enemies with the self-proclaimed goal of the destruction of the United States have demonstrated their willingness and capabilities of inflicting massive damage.
Confronted with this specter of further attacks, the governments of the United States have necessarily and justifiably embarked on a path towards additional security for the nation. With the federal government naturally taking the lead, new powers of surveillance, detainment, prosecution, conviction and punishment will be forthcoming. Calls for censorship and other demands for security will emerge. Prior limits on governmental powers as set forth in the Constitution and established through custom, tradition, and Supreme Court interpretation will be challenged. To the extent that past history is a guide, the new and grave dangers confronting the United States will provide justification for a shrinking of civil rights and liberties as Americans traditionally understand them.
Not only is the reality of terrorist attacks all too apparent, but this is unwanted development is also accompanied by an ever accelerating rate of societal, economic, demographic, cultural and technological change. From the now ubiquitous personal computer, to the internet, to increasing globalization, we live in a world made more interdependent and vulnerable than ever before. As threats abound, vulnerability expands and cries for security increase, the words of Thomas Hobbes come readily to mind when he referred to life in a chaotic world without without a general sense of safety: "...there is no place for Industry ... no Arts; no Letters; no Society; and which is worst of all, continual fear, and danger of violent death; And the life of man, solitary, poor, nasty, brutish and short."
The article below, written in 1974, focused primarily on challenges to limited government arising from new technologies, social interdependencies and institutional vulnerabilities. Politics has few axioms but one would seem to be this: when societies are faced with the stark choice between freedom and security, security will prevail. If this is so, and I believe it is, which freedoms will shrink? What rights will be diminished? Will policies devoted to security achieve their desired end? What price is America willing to pay for security?
Disputes of a fundamentally political nature have a habit of gravitating toward the Supreme Court of the United States for their resolution. This squeezing of significant social and political issues into the legal mold may be subject to criticism on any number of counts, but is, nonetheless, an undeniable facet of the American political system. One of these important issues revolves around the concept of freedom. In this context, a special duty has devolved upon the nation's highest judicial tribunal; to give constitutional effect to prevailing interpretations of the concept of limited government and its corollary, individual liberty. Although each era has modified the meaning of freedom in accordance with other competing values, the concept, though vaguely defined and continually changing, has remained near the core of almost all groups that have competed for power in American Society. Since the adoption of the Constitution nearly 200 years ago, the Supreme Court has been periodically if not continually embroiled in controversies over the boundaries of freedom. In its 1972 term, for example, the Court ruled unconstitutional any warrantees electronic surveillance by the Attorney General's office of persons believed to be dangerous to national security.
This affirmation of individual freedom from unfettered executive scrutiny gives some credence to the conclusion that the nation's highest court has not completely abandoned its role as protector of personal liberties, critics of the Burger Court notwithstanding. The topic to be considered here concerns the role of the Supreme Court in describing the meaning of freedom in American Society. What follows, however, does not fit readily into the pattern characteristic of most treatises on the subject. An attempt has been made to explore future problems in the area of individual freedom. "Constitutional futurism," maximizing speculation and minimizing methodological rigor, is the approach here. This prolegomenon to more refined explorations is, at most, an effort to glimpse beyond the present status of constitutional law into the realm of possible future developments. No claim of comprehensiveness is made; indeed only irregular scratches have been made on the subject of limited government in the super-technological society of the decades to come. Nevertheless, it is hoped that this presentation will give pause to other students of politics to ponder the direction of movement in the American scheme of limited government. Far too little has been thus far accomplished in this area.
Even those persons with just a modicum of knowledge about the work of the Supreme Court are well aware of its role in shaping the Constitution. Moral, philosophical, and political questions of the most taxing nature have been presented to this institution for resolution. Before turning to the question of current social changes and the Court, some utility will accrue from briefly examining its past relationship to the general issue of individual freedom. Any conclusions with respect to the future prospects of limited government can best be defended if grounded in knowledge of historically relevant events.
Although the Supreme Court decides only "cases and controversies," abstract issues must sometimes be resolved in the settling of a particular case. The "liberal-conservative" conflict comes to mind as an illustration of this point. For example, questions on the subject of civil rights and liberties quite frequently take the form of a polemic with classic "liberals" on one side and classic "conservatives" on the other. So-called "liberals" espouse well-known principles of individual worth and dignity as against the inevitably oppressive hand of a conformist society. Classic "conservatives," contrariwise point to the need for governmental controls of the natural discordant tendencies inherent in society. Only the anarchist or the complete totalitarian goes so far as the logical extreme of their position takes them. Most observers and commentators, including even the more "radical" or "extreme," opt for a middle ground permitting some degree of societal control tempered by what is called individual freedom. Little has been said or written on this topic that was not known to the Greek philosophers two millenniums past.
Commentators and/or scholars, eschewing this highly abstract method of approaching the question of social power have given no small amount of attention to the manner in which these theories have been implemented by various political and social systems throughout history. Those societies characterized by relatively pervasive control mechanisms, exercised by governments, have minimized the avenues open to individual discretion. Such "closed societies" have sought to guide and direct the choices to be made. Civil rights and liberties, as freedoms from societal control, were deemed inappropriate as unnecessary and harmful limits on governmental power. Fascism and communism are two doctrines that most readily come to mind in this vein. As a practical matter, such concentration of political power was seen by critics as stultifying the creative genius of the people. As Judge Learned Hand wrote, "For myself it would be most irksome to be ruled by a bevy of Platonic Guardians, even if I knew how to choose the, which I assuredly do not. If they were in charge, I should miss the stimulus of living in a society where I have, at least theoretically, some part in the direction of public affairs."
In the United States, only the Supreme Court approaches Plato's "Guardians of Society." Judge Hand's comments, published in 1958, have implications for the work of the Court during the period prior to 1938 in interpreting the Bill of Rights and the Fourteenth Amendment as limitations on the economic power of American governments undoubtedly accounts for much in the eminent Judge's view. He was warning his readers of the dangers inherent in utilizing the Supreme Court as a body of Platonic Guardians, whose duty would be to occasionally restrain prevailing majorities from exercising their will over hapless minorities. His concern was not that their decisions would be wrong, but that the policy-making structures should be confined to the politically responsible branches of government. In the economic sphere, this view has largely prevailed. The nation has rejected an economic definition of what constitutes the core of civil rights and liberties, at least for the time being. The politically responsible branches now have wide discretion as to the adoption of particular economic policies, largely unfettered by Supreme Court scrutiny.
Present-day advocates of judicial activism have forcefully argued that a free society and an open political system demands a watchful eye on governmental power that would, if unchecked, erode the very foundations of freedom. Any analogies to the judicial activism of the pre-1938 period with the judicial activism of the Supreme Court under Chief Justice Earl Warren are dismissed as basically flawed. Note, for example, the comments of Judge J. Skelly Wright:
The Nine Old Men were trying to halt a revolution in the role of government as a social instrument, while the Warren Court is obviously furthering that effort. Its most significant pronouncements have decreed change in the status quo, not its preservation. Rather than invalidate legislative efforts at social progress, its decisions have ordered alteration of widespread and long accepted practices, including many which had not been legislatively sanctioned in the first place.
Thus, some of the constitutional changes wrought by the Warren Court are seen as contributing to "social progress" by placing limits upon the permissible authority of the state to impinge upon fundamental political and social rights of the population living under its aegis.
This continuing tension between the concept of limited government on the one hand, and ever increasing demands for government action on the other, has not lessened in recent times. As society increases in complexity and interdependency, governments throughout the United States have been called upon to accomplish tasks literally undreamed of by those who wrote the original Constitution. History abounds with examples of this conflict between those who emphasize the need for societal action to minimize common problems and those others who warn of impending dangers to individuality and liberty by excessive reliance on social powers to solve problems facing individuals. Although the context in which the struggle takes place may; change and the issues may differ the theme is strikingly repetitive throughout history. Within the past three-quarters of a century, at least two broad variances on this conflict have emerged.
At the turn of this century, economic laissez faire policies were found to have their roots deeply implanted in the Constitution -- at least so ruled the Supreme Court. Accordingly, citizens were protected from interference in their right to freely earn a living. New York, for example, was prohibited by the Constitution from enacting and enforcing a maximum hours regulation for bakers. Such laws were declared to be "mere meddle-some interferences with the rights of the individual." The eminent Justice Oliver Wendell Holmes, in dissent, lectured that a "Constitution is not intended to embody a particular economic theory." His view paralleled Chief Justice John Marshall's admonition that it "is a Constitution we are expounding." According to this interpretation, the Constitution is devoid of economic absolutes which, by their very nature, would freeze the meaning of the document in conjunction with the will of prevailing majorities or minorities.
And so, the battle raged as the twentieth century progressed. Pressures for increased societal authority and power became eventually irresistible with the onslaught of the economic depression in 1929. Justices Sutherland, McReynolds, Butler, and Van Devanter notwithstanding, the Supreme Court acquiesced in this revolution of increased political power over the economy. Sutherland's dissent in a minimum wage case bemoaned the Court's rejection of past interpretations: "the meaning of the Constitution does not change with the ebb and flow of economic events...." While his view is not wholly without merit, perhaps the application of this principle to the Great Depression was inappropriate. Any characterization of the economic catastrophe of the 1930's as merely an "ebb" in business fortunes, would seem something of a gross understatement. In any event, the Constitution was reinterpreted as placing few limits on the power of Congress to regulate and control the American economic machine, although the effectiveness of such regulation remains an open question. Need we go further than to note the wage and price controls established during the first Nixon administration? Clearly then, laissez faire economic policy has been uprooted from the Constitution as a limit on political power.
Present-day concern is focused on the question of political and social rights as limits on government power. Instead of the right to freely own and dispose of private property, current dialogue revolves around rights to dissent, to organize an opposition, to procedural due process, and to be free from controls on private behavior causing no identifiable legal harm to others. In the tradition of Holmes, contemporary supreme Court justices favoring judicial self-restraint have criticized "judicial policy-making" and its inherent weaknesses. Felix Frankfurter wrote.
Disregard of inherent limits in the effective exercise of the Court's "judicial Power" not only presages the futility of judicial intervention in the essentially political conflicts...(but it) may well impair the Court's position as the ultimate organ of `the supreme Law of the Land' in that vast range of legal problems.
In effect, Justice Frankfurter was urging that within broad limits, the will of the prevailing majority should be respected by the Court.
The views of Justice Frankfurter have not prevailed, however, From freedom of religion to equality of rights for women, Supreme Court attention has centered on the limits found and/or created in the Constitution's Bill of Rights. Particularly during the years when Earl Warren was Chief Justice did the Court engage in judicial activism on behalf of discreet and politically impotent minority groups. Power to discriminatorily treat these categories of persons was removed from legitimate government authority. A question arises from this observation: just as in the 1930's when the winds of change forced a reevaluation of then prevailing constitutional interpretations, is it not reasonable to expect that the present alterations in society will also require modifications in current constitutional interpretations? Just as economic sacred cows have long since been slaughtered, can we assume that the present ones will also be sacrificed to the changing times? Or is it accurate to say, as Hugo Black once wrote, there "are `absolutes' in our Bill of Rights." Does the constitution and its amendments "withdraw from the government all power to act in certain areas--whatever the scope of those areas may be?" Further, does this assertion of "absolutes" in the Constitution run counter to Chief Justice Marshall's statement about the flexible nature of a Constitution designed to endure for the ages? If, however, the ultimate purpose of the Constitution is to provide a democratic political system, Black's position may appear stronger. Assuming that a democratic society may be defined roughly as a process of limited majority rule with some minimum of equality of opportunity to achieve the values of that society, then it may be legitimately contended that democracy has no meaning with the freedoms in the Bill of Rights.
It was upon this foundation that the Warren Court embarked upon its controversial path of enlarging and protecting the rights and privileges of otherwise vulnerable minorities and socially deprived individuals. A kind of "double standard" was evoked in constitutional interpretations. As Henry Abraham succinctly summarized the work of the Court since the Depression:
What the post-1937 judiciary did was to assume as constitutional all legislation in the proprietarian sector unless proved to the contrary by a complainant, but to regard with a suspicious eye legislative and executive experimentation with other basic human freedoms generally regarded as the "cultural freedoms" guaranteed by the Bill of Rights--among them speech, press, worship, assembly, petition, due process of law in criminal justice, a fair trial.
Certain constitutional proscriptions were elevated to the status of a "preferred position" over the strenuous objections of some justices. This double standard of interpretation was justified on the grounds that the "preferred freedoms" were crucial to a democratic political process, unlike those limits on government in non-political arenas. Consequently they deserve those limits on government in non-political arenas. Similarly they deserve--indeed they require--a special scrutiny by the judiciary to ensure the openness of the decision-making structures to inputs from otherwise excluded minorities. Without such stringent and rigid interpretations, of all interested parties on something approaching a position of equality in terms of access to the levers of power, but rather from the policy desires of those fortunate enough to enjoy an advantaged location in society. In this light, perhaps, the contradiction between Black and Marshall appears less harsh. Marshall was, in effect, saying that if the Constitution is to endure, it must grow and change with the needs of the society it serves. Black's position was that a democratic political system demands a "fixed star" in the form of procedural absolutes to permit competing individuals and groups to have an equal opportunity to achieve their desired outputs from the system. For Marshall, political stability and orderly change was achieved through organic evolution of the Constitution; for Black, stability resulted from institutionalized change based on roughly equal chances for all participants.
As with Justice Frankfurter, Justice Black never achieved complete victory in his efforts to convert his colleagues. He did, however, win some notable successes in his goal to reduce the power of prevailing majorities in the fields of human interaction covered by the Bill of Rights. Nevertheless a new day is dawning on the Court, and with it should come the realization that just as the economic depression forced a reevaluation of existing constitutional doctrines, future stresses and strains will undoubtedly cause additional modifications of civil rights and liberties. Whether or not this nation is undergoing a crisis similar in severity to that of the Great Depression is an arguable point. But that times are changing, that they are changing with ever-increasing rapidity, and that these changes will affect Supreme Court behavior in constitutional interpretations--these contentions cannot be denied, and they require thoughtful consideration. What follows below is directed to this end
Two writers have recently posed basic questions about social trends and the direction in which American society is moving. Although their specific fields and findings are dissimilar in many respects, a common denominator seems to exist. Alan Toffler in Future Shock described in a convincing fashion the increasing rate of change characterizing present life styles of this nation and the world at large.
B. F. Skinner, on the other hand, prescribed a revolutionary utilization of science to shape man's total environment. His fundamental thesis in Beyond Freedom and Dignity w was that man's continued survival as a social creature requires a science of behavior through which he can control and direct his own destiny to a far greater extent than is presently the case. Each of these works portends grave implications for the concept of limited government, so laboriously elaborated upon by the Supreme Court. To dismiss Skinner's utopian or nightmarish vision of the future, depending on one's reaction to his concepts, without a careful analysis of what has been proposed would be foolhardy indeed. Similarly, only the most insensitive and unaware individuals would be capable of denying the patently obvious alterations in society caused by the myriad of innovations continually and incessantly being made available by technological advances. American constitutionalism has no special grant of dispensation from changing times. In some manner, it must change to accommodate new conditions. To absorb these changes and yet remain fundamentally intact will be no mean feat. As if this challenge were insufficient to test the viability of limited government. Skinner has proposed nothing less than the scrapping of what many consider to be the bedrock of the entire Constitution: individual freedom.
Toffler has shown the degree to which contemporary society is being subjected to monumental changes over relatively brief periods of time. He noted, for example, that technologically advanced societies are presently doubling their output of goods and services about every fifteen years, and that the doubling time is shrinking. Thus, in a single lifetime of seventy years or so, a person will experience several times over the level of goods and services produced at his birth. Toffler summarized:
[Whether] we examine distances traveled, altitudes reached, minerals mined, or explosive power harnessed, the same accelerative trend is obvious. The pattern here and in a thousand other statistical series, is absolutely clear and unmistakable. Millennia or centuries go by, and then, in our times, a sudden bursting of the limits, a fantastic spurt forward.
It should not be surprising to learn that persons who have been absent from American society only for a relatively short period of time, such as former prisoners of war in North Vietnam, experience serious problems of adjusting to the disturbing changes that have taken place during their absence. Changes in hair style, permissiveness in movies, language and other societal alterations are difficult for the returning soldiers to accept.
Despite Toffler's view of the future as fraught with dangers, he is basically an optimist on the question of whether individual freedoms can thrive in their supertechnological society. Freedom from want, disease, and in general, the existence of sufficient resources conducive to a lengthy and healthful life are surely a possible product of technology. But, whether technology is compatible with freedom to dissent, to oppose, to organize, is perhaps another matter. Free speech and press, we have been told, are civil liberties essential to a democratic society. In the words of Justice Oliver Wendell Holmes, "I think that we should be eternally vigilant against attempts to check the expression of opinions that we loathe and believe to be fraught with death, unless they so imminently threaten immediate interference with the lawful and pressing purposes of the law that an immediate check is required to save the country."
In what ways, if any, do the changes in our society affect Holmes' contention? Does the fact that technological advancement increases interdependency and thereby societal vulnerability alter the Holmes thesis? Members of a highly organized and super-technological society must rely on the behavior of others to provide the necessities of life, including food, shelter, transportation, power, and information. The breakdown of any one system will cause vast dislocations elsewhere. A terrorist group, or even a single individual bent on destruction and disruption can, with relative ease, inflict great harm on the mechanisms of society.
Such vulnerability may cause suppressive measures to be taken. Congress has recently acted in a manner giving come credence to this conclusion. The 1968 federal "anti-riot" statute may be viewed as an attempt to close the channels of communication and travel to those persons whose purpose it is to agitate and spark active violent opposition to real or imagined injustice. The law provides a stiff penalty for anyone who "uses any facility of foreign or telegraph, telephone, radio, or television, with intent . . . to organize, promote, encourage, participate in, or carry on a riot." The future holds still more opportunity for organized disruption of the institutions of society. Accordingly, the likelihood of increases in government control and surveillance over the mechanisms essential to such disruptions is correspondingly greater.
Societal vulnerability is further compounded by a mass based, instantaneous, and worldwide communication network. Freedom of the "press" is a value now being tested by circumstances unique in history. To what extent, we may ask, will otherwise latent terrorists be motivated to action by events such as those occurring in Munich during the 1972 Olympics? Is the electronic media to be muzzled or otherwise subjected to censorship because of incitement to action by its coverage of such news stories? Verbal condemnation and moral outrage expressed by the commentators may conceivably aggravate rather than reduce the possibility of sparking additional antisocial behavior. Perhaps Marshall McLuhan was correct when he observed that the medium is the message. Through its very existence, irrespective of the content and the message transmitted, the electronic media alters and shapes society. One does not have to accept McLuhan in toto to realize the degree to which life styles, politics, and other phenomena have been molded by this technological advancement.
One of the results of the riots and disorders that wracked this nation's cities in 1967 was a widely held belief that somehow the news media had contributed to the disorders. The President's Advisory Commission on Civil Disorders concluded that the media, though essentially attempting to report the events in a factual manner, were at least partially responsible for an "exaggeration of both mood and event." Although any casual relationship was discounted as unproved, the Commission Report pointedly noted the fact that in some cities, people who watched television reports and read newspaper accounts of the riots elsewhere later rioted themselves. While denying that freedom of the press was at issue, the Commission nevertheless called for greater media self-control:
[The] media simply must exercise a higher degree of care and a greater level of sophistication than they have yet shown in this area--higher perhaps, than the level ordinarily acceptable with other stories....Reporters and editors must be sure that descriptions and pictures of violence, and emotional or inflammatory sequences or articles, even though "true" in isolation, are really representative and do not convey an impression at odds with the overall reality of events.
One need not fantasize about hypothetical circumstances to imagine irresistible pressures to exert some societal controls over the reporting of events when one result is to spread the disorders. The behavior of Chicago police during the 1968 Democratic Convention would seem to be indicative of the hostile attitudes harbored by those public officials toward the media and its representatives. When policy-makers or policy administrators believe the media contributes, in some fashion, to unwanted behavior patterns in the public, the value of a "free press" may succumb to other priorities. Government control can take many forms other than censorship boards. Informal sanction and indirect pressures may be as effective as the more obvious and direct controls in achieving societal regulation of what is made available to the public by the media. What is new about all of this is not regulation per se, but the realization that media coverage of news stories, particularly by the electronic media, can and has sparked outbursts of violent behavior far removed from the location experiencing the reported event.
In 1971, the national government attempted to suppress the publication of a "secret" set of stolen documents. Although the Supreme Court rejected the petition for a permanent injunction against the newspapers in question, a majority of the justices admitted of circumstances under which the government might constitutionally authorize a prior censorship procedure. Efforts at persuading the electronic media to restrain itself in the coverage of such events as skyjackings are frequently made. If this self-regulation is not forthcoming, is it not ostrich like to assume governmental regulation will not be demanded?
In a different vein, but still relevant was a 1972 Supreme Court decision involving the power of grand juries to compel disclosure of sources from members of the press who, in their news gathering function, obtained information pertaining to criminal activity. It was held by the narrowest of margins that the concept of a free press did not protect newsmen from being jailed for refusing to provide source identification demanded by a grand jury of competent jurisdiction. Justice Douglas, ever sensitive to increases in government authority vis-a-vis individual political rights, dissented. His closing remarks are worthy of quotation:
The intrusion of government into this domain is symptomatic of the disease of this society. As the years pass the power of government becomes more and more pervasive. It is the power to suffocate both people and causes. Those in power, whatever their politics, want only to perpetuate it. Now that the fences of the law and the tradition that has protected the press are broken down, the people are the victims.
The "disease of this society" referred to by the senior Associate Justice is, of course, characterized by incessant pressures to increase government authority over the behavior of individuals. Crime and the means of combating it undergo changes as profound as, and at a pace quite comparable with, other activities in society.
If civil rights are protections against arbitrary government action, then what are the implications arising from the super-technological society on those rights? An inkling of the problem came forty-odd years ago in the famous Olmstead case. In his prophetic dissent from the majority's view that the Fourth Amendment contemplated no protection from electronic surveillance, Justice Brandeis warned:
The progress of science in furnishing the government with means of espionage is not likely to stop with wire-tapping. Ways may some day be developed by which the government, without removing papers from secret drawers, can reproduce the in court, and by which it will be enabled to expose to a jury the most intimate occurrences of the home. Advances in the psychic and related sciences may bring means of exploring unexpressed beliefs, thoughts and emotions.
It is not unlikely that within this century science will equip agents of the government with the means of monitoring the finances of virtually each person and group in the nation. The existence of a credit card economy, coordinated and integrated through interconnected computers, may well eliminate cash transactions, and with it any chance of secrecy in credit exchanges. Super-sensitive devices to detect the presence of various contraband, including but not necessarily limited to narcotics, weapons, and explosives, may invoke probable cause to search where none previously existed. Such monitoring of persons utilizing commercial air transport is currently in operation throughout the United States. As technology makes new devices available covering a continually widening range of substances, should society restrain itself from utilizing these tools in a myriad of ways? We have been told that "the Fourth Amendment protects people, not places. And yet, where policy-makers perceive dangers to society, such as skyjacking, is it not unrealistic to expect them to refrain from using the means necessary to check such perceived dangers? If the choice must be made between safe air travel and traditional concepts of probable cause to search, is there much doubt which will prevail?
Aside from the question of what constitutes reasonable cause to justify a warrantless search, there remains the highly controversial exclusionary or suppression rule, which requires a court to exclude or suppress from the trial any evidence seized by government authorities in an unreasonable search. At least three separate and distinct reasons justify its impositions as a constitutional requirement: (1) it protects the integrity of the judicial process by ensuring that guilt will not be established by tainted police practices; (2) to be free from the use of such evidence is a personal right guaranteed by the fourth and fifth Amendments combined; and (3) police illegal manner if they are aware of the court's refusal to admit the fruits of such action. Most commentators seem to focus upon the more "practical" justification that unconstitutional police activity is deterred by the exclusionary rule. Thus, if some equally efficient deterrence were found, the rule could be readily abandoned. Ultimately perhaps, the lack of what might by significant percentages of local policemen constitutes the root cause of intentional violations of the prohibition against unreasonable searches and seizures.
Only ten years after the Supreme Court handed down the Mapp decision which extended the exclusionary rule to state courts, this method of guaranteeing the freedom from unreasonable governmental searches underwent a sharp attack at the hands of Chief Justice Warren Burger. Calling the hope that the exclusionary rule would deter unconstitutional searches by police, a "wistful dream," he concluded it had failed in this stated objective. Although he did not propose its immediate abandonment, his opinion did offer some suggestions for its eventual demise. Two other justices indicated their opposition to a Fourth Amendment exclusionary rule. Those who encourage retention of the rule do so primarily on the basis of the widely held belief that all other proposed remedies are fundamentally flawed in some manner. Such tenuous support does not, by any stretch of the imagination, guarantee the rule's continued vitality. If American society is forced to endure for extended periods of time what is deemed to be dangerous and excessive criminal behavior, at a rate equal to or exceeding that of present levels, pressures for a "crackdown" on criminals and an all-out "war on crime" may prove too much for the supporters of the exclusionary rule to effectively resist.
Aside from technologically caused alterations in the rights of persons accused of crimes, the specter of expected advancements in such fields of eugenics, medicine, biology, and related fields gives pause to ponder the long ranging effects such changes will have upon other fundamental, but as yet largely unarticulated, constitutional rights. Early in its 1973 term, the Supreme Court acted to invalidate state anti-abortion statutes as an unconstitutional invasion of the "right to privacy" of pregnant women. This far-reaching reaffirmation of the principle of limited government was due in large measure to medical advances rendering abortion techniques relatively safe for women. We may also expect some utilization of eugenic procedures as they are perfected. The rights of the parents and possibly of the unborn, may well be considered under the existing constitutional framework, but only after the document has undergone yet additional reinterpretations designed to permit its adaptation to prevailing legal, political and social views. Just as a "right to privacy" was found in the Bill of Rights which invalidated state legislation restricting the dissemination of contraceptive literature and devices, as well as voiding many state anti-abortion statutes, so too may social controls over eugenics be challenged at some future date. Assuming that science will provide the means to select not only the sex of one's offspring, but their mental and physical characteristics as well, what control will society exercise over this process? Or will the Constitution be interpreted to require the choices to be made by parents unfettered by social authority?
Although American society has been moving toward increases in social authority for decades, this expansion of organized state power has heretofore been confined for the most part to the economic realm. Regulation and control of economic forces by government agencies is now a widely accepted practice, but one that was only a few decades ago characterized as "creeping socialism" or worse. Social architects and other commentators are currently treading a path similar to that traveled by economic reformers of the 1930's. Both groups have perceived grave harm resulting from uncontrolled human behavior and have suggested the need for exercising additional governmental power. The target for the present-day advocates of increased governmental authority is no longer the economic realm; rather, they are focusing upon social and political behavior. Activities in these latter arenas, when confined to accepted channels, have been viewed largely as sacrosanct, insofar as societal controls are concerned.
Particularly since the post-1937 period has the Supreme Court adopted this course, albeit a vacillating one. Those instances of constitutional interpretations recognizing the legitimacy of some social control in the expression and dissemination of deviant and/or unpopular views have been generally justified as necessary exceptions to the rule of individual freedom. Obscene material, for example, lies outside the range of legitimate First Amendment freedoms. Utterances which create a "clear and present danger" to the institutions of society may also be suppressed. While critics of these interpretations may view them as exceptions which swallowed the rule, the theory, or myth, of individual liberty has lingered on. There are, however, some commentators who believe that even the theory of individual freedom in a non-economic context is fading. The European "futurist" Robert Jungk has written, "So we have begun, in the West, to travel on a road which so far has only been chosen by Marxists; the conscious effort of man to shape his own history, to dominate his fate, to guide his own evolution. Just as "planned parenthood" has become acceptable in contemporary American families, so too may the concept of a "planned society" achieve respectability; indeed, such is the case with "planned communities" arising at various locations throughout the nation.
Those who find the ultimate causes of discordant or criminal behavior in the very fabric of society, must necessarily call for controlled changes of those casual mechanisms. In a somewhat polemical, but nevertheless valuable, study on violence in society. Professor Lynne Iglitzin developed the theme that violence is ultimately grounded in the very essence of society, then individual responsibility, in a criminal sense at least, is fundamentally illogical. Accordingly, if this is so, the present system of rewards and punishments for particular modes of behavior would seem at best irrelevant to the goal of encouraging individuals to choose the path of righteousness. The "choice" one must conclude from the premise outlined above, is a Hobson's Choice, for behavior is largely predetermined by preexisting social conditions. Assuming that individual responsibility is after all merely a facade, created and maintained with the effect of absolving society of its ignominious role in producing structures and deprivations which prod individuals and groups to resist the rules promulgated by established authority, then the conclusion that society must reform itself and utilize positive rather than punitive oriented control mechanisms would seem inescapable. Further, the control mechanisms would have to be of a pervasive nature in order to avoid harmful randomness otherwise inherent in a super-technological, super-complex, and super-interdependent society.
This "humane totalitarianism," as it might be labeled, is apparently inconsistent with existing principles of limited government and individual freedom. Whether or not concrete and irreversible steps are being taken in that direction may be disputed, but there surely can be no doubt that technology is rapidly providing mankind with the means to effectuate this kind of controlled society. In Beyond Freedom and Dignity, Skinner did not merely suggest the desirability of such humane totalitarianism, but asserted its indispensability to future societies. Utilizing a purely behaviorialist orientation, he explains and then discounts notions of freedom and dignity as mental constructs, or values, which require limits to be placed on the legitimate authority of society to control human behavior. These values, and punishments for behaving in particular patterns. Opposition to the elimination of these values, and the corollary support given to limiting the authority of society over human activity, may be explained simply in terms of the aversive consequences believed to necessarily result from such control. In effect, Skinner believes that the concept of free will and/or of a person who makes choices uncontrolled by his environment or circumstances is unjustified by findings in the field of human behavior. Rather, what in fact occurs is the image of an autonomous man freely picking and choosing behavior patterns for which he is duly rewarded and punished. In Skinner's words, behavior "is determined by a genetic endowment traceable to the evolutionary history of the species and by the environmental circumstances to which an individual has been exposed." As a consequence, notions of freedom, and dignity and of "autonomous man" must be discarded. In their place, there must be constructed a technology of behavior emphasizing positive reinforcers and substituting control and conscious direction of man's total environment for the existing random selection of behavior.
Accepting, for the moment, Skinner's thesis of environmental determinism, there comes immediately to mind questions of purposes, goals and values upon which this technology of behavior would be based. Any call for comprehensive human direction to social interchange requires some thought on the question of what constitutes the GOOD SOCIETY. Obviously conscious choices must be made to this end. Skinner rejected any appeal to Platonic Guardians as the ultimate policy-makers and instead opted for a process he labeled as "countercontrol":
The relation between the controller and the controlled is reciprocal....In a very real sense....the slave controls the slave driver, the child the parent, the patient the therapist, the citizen the government, the communicant the priest, the employee the employer, and the student the teacher....The great problem is to arrange effective counter-control and hence to bring some important consequences to bear on the behavior of the controller.
This would seem to be the behavioralist interpretation of a "democratic" totalitarianism. The concept of counter-control is but another way of describing the process of government by consent of the governed. This procedure is, of course, not new to the realm of politics. Skinner's thesis is unique, or at least innovative, in that his utopian society would combine a kind of humane totalitarianism, utilizing the tools of the supertechnological society, with some form of societal control over the policymakers.
Even recognizing the monumental problems presently besetting the American political system in the area of translating public opinion into public policy, the Skinnerian society would seem to be susceptible to still greater difficulties on this point. The question may be stated simply: How can counter-control measures be achieved without some minimum level on the authority of the political system to suppress certain behavior patterns of individuals or groups? A so-called free society demands civil rights and liberties primarily because there is no general acceptance of what constitutes the GOOD SOCIETY. Skinner's thesis begs this very fundamental point, as do all advocates of total social control. Without freedom from the various forms of social coercion in the area of opinion formation, public policy must be developed ultimately by those in positions of power quite independent of the views of the public at large. Elitism to the maximum degree would be inevitable. To accept Skinner's thesis, one must believe in the existence of the GOOD SOCIETY in the sense that the ultimate TRUTH, as an absolute immutable value for society to follow, is objectively determinable. Aye, there's the rub! Once the GOOD SOCIETY is defined, the need for restraints on government power ceases, but until and unless significant opposition to it disappears, civil rights and liberties may be defended at the least objectionable method of shaping public policy.
Skinner's rejoinder cannot be easily dismissed, however. Science has shown, with increasing clarity, that humans act as they do not because of free will, but because of the environment in which they survive. Man, Skinner asserted, is not free from all controls by adhering to a system of civil rights and liberties, but rather he is merely opting for random selection of behavior patterns rather than submitting to rational direction that can result from humane totalitarianism. Such randomness, he concluded, cannot be accepted in the society of the future. Concepts such as a right to privacy, to be free from governmental surveillance of daily activities, and ultimately, the right to be let alone must necessarily go by the wayside. Opposition to this proposed society does not deter Skinner. The problem, he wrote, "is to design a world which will be liked not by people as they now are but by those who live in it....A better world will be liked by those who live in it because it has been designed with an eye to what is, or can be, most reinforcing." The inhabitants of this controlled society would entertain no opposition to it because of the positive reinforcers existing therein. This behavioralist approach to the oft-stated utilitarian goal of the greatest happiness for the greatest number of people is unique only in the method of achievement, but quite obviously this point of distinction is a significant one.
Twentieth century novelists have anticipated Skinner is an almost uncanny fashion but their theme has been invariable one of unremitting opposition to the controlled society. The two best known anti-utopias, 1984 and Brave new World project an image of a society where the control mechanisms still place great reliance on negative reinforcers and thus inevitably give rise to hostile reactions. A more recent futurist novel of this anti-utopian school meets Skinner's proposal directly by describing a computer controlled society in which most negative reinforcements have been eliminated. This Perfect Day is a story of resistance to such positive but pervasive control and the ultimate victory of irrationality over reason. It is not known to this writer whether or not Skinner had the author of that novel in mind when he referred to the existence of "emotional instability" and "psychotic responses" in those libertarians who oppose his suggestions, but the message contained in This Perfect Day runs directly counter to Skinner's thesis of chemically pure rationalism.
As the study of human behavior continues to provide additional explanations of why people act as they do, an inevitable accompaniment to this expansion of knowledge will be the means of controlling that behavior. By continually refining his tools, mankind will, in the not too distant future, sufficiently equip himself to achieve the Skinnerian utopia. To those skeptics who scoff at the likelihood or even the possibility of such technological advancements, the writer recommends a fascinating treatise on the "Hazards of Prophecy" by Arthur C. Clarke. In this article, Clarke reported the conclusions reached by one erudite professor in 1926, on the topic of whether a flight to the moon was technically feasible. The professor wrote, "This foolish idea of shooting at the moon is an example of the absurd length to which vicious specialization will carry scientists working in thought-tight compartments....[The} proposition appears to be basically impossible." Scores of other examples could be provided which would show clearly the degree to which prophets, intimating the impossibility of any number of technological advancements, have been subsequently proven quite inept as predictors. Even if one confines his imagination to the next century, the mind boggles at the prospects that await man's technology. The impact of this technology on man's social institutions will certainly be profound.
This brief excursion into the area of governmental restraints in the super-technological society of the future has explored only a few of the more obvious, but nevertheless, pressing questions that must be faced. To ignore the implications of rapid technological developments upon individual rights as guaranteed by the Constitution would be to rush headlong into the future unprepared for the inevitable clashes these changes will precipitate. Society cannot avoid confronting the fundamental question of whether the freedoms described in the Constitution and elaborated upon by the Supreme Court are moral and political "absolutes" or merely temporary admonitions subject to abandonment according to prevailing demands of the times. Far too little attention has been paid to the broad issue of civil rights and liberties in the time to come. Students and/or scholars of the Constitution are, in the writer's view, remiss in their academic responsibilities if they confine their studies and inquiries in the area of present realities with no probing into future possibilities. This latter field remains largely untouched, due primarily perhaps to the scholar's natural reluctance to enter into the rarefied atmosphere of speculative thought. Certainly pitfalls and dangers exist for those with sufficient temerity to explore the future, but greater dangers to the discipline will accrue from a timid refusal to offer well-grounded speculations on the likely development of such issues as civil rights and liberties in the years and decades to come.
Barring unforeseen structural changes of the first magnitude, the Supreme Court of the United States will continue to play a significant role in the shaping and interpretation of the Constitution. The struggle between those advocating judicial self-restraint v. judicial activism is likely to continue unabated, but in a new form. Just as the specific issue of judicial activism with respect to laissez faire economics spent itself, so too will the issue of judicial activism vis-a-vis individual political and social rights be reformed by social and technological change. At the very least, we may anticipate cases coming before the Court that will require novel approaches to the Constitution and a creative jurisprudence to ensure its continued relevancy. The speed and magnitude of social and technological changes will sharply reduce the time available to the Court for reflection on needed constitutional alterations, as well as quicken the pace of feedback from earlier decisions. The role of the Supreme Court in the twenty-first century and beyond must be explored at length if this institution is to be prepared for the controversies to come.
To view forthcoming changes as requiring nothing beyond a few minor adjustments in procedure, jurisdiction, standing, and the like would be most unrealistic. American society, and indeed that of the entire world, has entered an era unlike that of any time in the past. No doubt, soothsayers, scholars, and other commentators have made similar assertions for time immemorial and will continue to do so at each stage of human development. It is disconcerting to realize that they were all basically correct in their conclusion on this point. What is of crucial importance is to recognize to the most accurate extent possible those features of any era that are unique, and to incorporate any plausible conclusions deriving therefrom into plans for future development. This writer sees the present era as one characterized by perceptible movement toward increases in social control over the human environment in areas formerly considered sacrosanct by traditional constitutional interpretations. It may be that this trend is irresistible and inevitable, but blindness drift in that direction is surely to be avoided. Toffler has offered a convincing argument on the uniqueness of present society in terms of the pace of change existent. therein. Skinner has proposed a perfectly rational and perfectly controlled society, which is seen by him as the only alternative to otherwise destructive randomness characteristic of uncontrolled human behavior. No scholars and/or students of the political process in general, and of the concept of civil rights and liberties in particular, can afford to ignore their message.
The field of constitutional law needs badly to open the doors to judicious extrapolation from current realities into future possibilities. Knowledgeable commentators and observers, must, if this is to be accomplished, break the bonds of politico-legalistic-methodological approaches now limiting the field of constitutional law and judicial behavior. Past experience indicates clearly the folly of assuming that prevailing issues and problems will continue indefinitely to be posed in the same form as they are now approached. Students and/or scholars of the Constitution simply cannot afford the luxury of quiescent discipline devoid of speculative commentaries on the future.
An awareness of and speculation on broad social movements, technological changes and proposals for the future should be a part of constitutional law commentaries at each level of inquiry. Staid descriptions of Supreme Court decisions, as well as intricate methodological exercises in the area of judicial behavior, should not be allowed to cover the gamut of scholarly investigation on the subject. Those interested in the field of civil rights and liberties should not ignore disturbing trends and suggestions that will, if they become reality, modify and perhaps destroy values heretofore believed immutable. We must ask: What does the future hold for limited government?