The End of Liberty

This essay originally appeared on National Review Online on April 25. Copyright 2001 National Review.

The Supreme Court dealt a devastating blow to the Fourth Amendment andindividual liberty this week. In a 5-4 ruling, the Court said police officers can jail citizens for minor offenseswithout arrest warrants. The case, Atwater v. City of Lago Vista, lowers theconstitutional threshold by which citizens can be deprived of their liberty.

Gail Atwater was driving her kids home from a soccer game. A toy fell out ofthe vehicle in their neighborhood and Atwater was retracing their routeslowly so that the kids might be able to spot the lost toy. A police officerpulled Atwater over and barked at her for not keeping her kids in theirseatbelts. Instead of issuing her a ticket, the cop put Atwater in handcuffsand took her into custody. Luckily for the Atwater family, a neighborarrived on the scene just in time to spare the children from temporaryfoster care.

Atwater spent an hour in jail, posted bond, and returned home. She lateradmitted to the seatbelt infraction and paid the $50 fine. But Atwater wasso upset by the way in which the patrolman scared her kids and bullied herthat she sued the cop and the city for violating her constitutional rights.

The case worked its way all the way up to the Supreme Court. The City ofLago Vista argued that its cop noticed a legal infraction and exercised hislegal discretion in taking Atwater into custody. Police officers mightdisagree among themselves as to the propriety of that decision, but therewas no constitutional violation. Atwater argued that the Fourth Amendmentconstitutionalized the common-law rules pertaining to arrests and searches —and that under the common law, police needed an arrest warrant formisdemeanors that did not involve a breach of the peace. Since the officerhad no arrest warrant for Atwater, her arrest was unconstitutional.

Writing for a majority of justices, David Souter found the common law to beunclear on the matter. The majority then quickly reached the conclusion thatthe police have to have unfettered discretion because any other rule wouldhamper law enforcement and foster litigation.

The Atwater ruling is terribly mistaken because it essentially reads theWarrant Clause out of the Constitution. In a matter of a few short years,the term "arrest warrant" will gradually vanish from usage. After all, whyshould the police apply for an arrest warrant when the court has now giventhe executive branch a license to arrest citizens whenever they believe alaw has been violated?

The Framers of the Constitution sought to limit the power of search andarrest by dividing that power between the executive branch and the judicialbranch. If the police can convince a judicial officer with evidence that aperson committed a crime, a warrant would issue. Otherwise, the police hadto leave the citizen unmolested and continue investigating. What's importantto note here is that the constitutional presumption favors individualliberty, not police power.

The Atwater ruling turns the Framers presumption on its head. The Atwaterrule now give the police a green light to arrest citizens — and we'll sorteverything else out later. Amazingly, the Court admitted that the officerwho arrested Atwater exercised "extremely poor judgment." Nevertheless, theCourt callously observed that because Atwater's attorney could not provethat such incidents were of "epidemic" proportions, the problem could behandled by local electoral processes.

Conservatives are rightly indignant when liberal Supreme Court justicesignore constitutional provisions like the Second Amendment and the TenthAmendment. But in this case the conservatives teamed up with David Souter toignore the Warrant Clause of the Fourth Amendment.