Our Besieged Bill of Rights

There is a controversy in American law that reflects the uncertainty and division of contemporary American society. A universal and understandable concern with the rising rate of crime has led to a frustrating search for solutions. The frustration has bred drastic and desperate demands, among them, various proposals to alter the Constitution --or recent Supreme Court interpretations of it--in the hope that, thereby, law and order may be "restored." Some of the proposals have been made into slogans; for example, "Take the handcuffs off the police." Even more sophisticated suggestions are based on the idea of "liberating" officials from constitutional restraints. These critics do not put forth merely new and much-needed devices for the prevention of crime, such as better training and higher pay for the police. sufficient manpower for effective patrol or improved techniques and equipment. They propose to alter the fundamental balance established in the Bill of Rights between the powcr of government and the autonomy of the individual. The Bill of Rights is to be adjusted to meet our concern over crime. In particular, the Fifth Amendment has been attacked as a luxury we cannot afford in the current crisis. Even such an eminent jurist as Henry Friendly of the Federal Court of Appeals, Second Circuit, has gone so far as to propose a constitutional amendment to reverse recent interpretations of the self-incrimination provisions of the Fifth Amendment, fudge Friendly has been joined in this demand by others in the judicial and law-enforcement professions. One of the most outspoken is former governor of New York Thomas E. Dewey, who has said, "We could get along just as well if we repealed the Fifth Amendment." In a time of such panic-inspired rhetoric, it is necessary to examine the reasons for our constitutional protections.

A Bill of Rights reflects wisdom. Its limits are based on the knowledge that a society may take hasty action that it will later come to regret. Thus, a wise society provides itself with parchment counsel intended to prevent those actions that history teaches us are most often lamented. A Bill of Rights also expresses the essential optimism of a people, for it is based upon a belief that there will be a future worth aiming the nation toward.

It is a glory of the United States that it has maintained a Bill of Rights for almost two centuries. This is not an easy thing, for it is an implicit assumption of constitutional limitations that they will frequently be unpopular in specific application. If the Government and the people could be counted on always to act according to the principles of the Bill of Rights, there would be no need for the document. But it was recognized by the people of this new nation, who would not accept a Constitution without a Bill of Rights, that there would be temporary passions, passing emergencies, apparently changed circumstances--all of which might appear to justify abridgment of liberty. It seems intrinsic to human nature that the closer we are to an event, the less reliable is our judgment. The Bill of Rights provides the detached wisdom that we require when basic freedoms seem to block the path of necessity.

The general value of constitutional freedoms is illustrated by the First Amendment's provision for freedom of speech. This freedom has been constantly under attack from the days of the discredited Alien and Sedition Laws. Comstockian censors rallied against the amendment when it protected some of the world's great literature from the imposition of their narrow vision. The First Amendment always has rough going when it protects war dissenters, at least until the war is over. And it has done extraordinary service in protecting the rights of peaceful civil-rights demonstrations. In fact, whenever there are two sides to an issue, the minority depends on the First Amendment for the right to present its side. We all have at least one opinion that someone, somewhere, thinks we should not express. Knowing this, we value the amendment that protects those with whom we disagree.

We easily see that the freedom of the First Amendment protects us; but the rights of criminal suspects seem less personal. They are often presented as limitations that the law-abiding society adopts only out of an exaggerated sense of fair play. And when a confession or illegally seized evidence is excluded from a criminal trial, we hear that we cannot afford to give such an advantage to the adversary. But it is not someone else whom the Fourth, Fifth and Sixth amendments protect. Especially, it is not only someone else who will lose if the proposals against the Fifth Amendment succeed. For to trim the privilege against self-incrimination will also trim the autonomy of every individual, which is the essence of the Bill of Rights.

The autonomy of the individual comprises freedom of thought, speech and association. Necessary at times to all of these is privacy. Privacy exists not as an absolute concept but as a relationship with other entities. One may maintain physical privacy against the world with a wall, even though a mailman, milkman and salesman regularly come through one's gate. Passers-by may peer through the chinks and children may scale one's wall in search of errant balls. Yet there is privacy in the enclosure, in the sense that one can act with reasonable assurance that he is not, in fact, being observed.

Privacy vis-à-vis the Government is similarly incomplete and erratic. But it must have the quality that allows the feeling that one is unnoticed, at least some of the time. The Government naturally requires information of various types, and there will be occasions when almost a total account of one's life may be required. But to preserve the feeling of autonomy, those occasions must be rare, like the breaches of a solid wall. The individual must know that, in the usual case, his life is his own. not his Government's.

Privacy has already suffered a major invasion in those sections of the 1968 Crime Act that authorize wire tapping and electronic surveillance. Under these provisions, the Attorney General or any local chief prosecutor may seek an order allowing the interception of any conversation of a person suspected of any of a long list of crimes, some of them quite minor. Under the law, the police can tap one's phone or eavesdrop electronically even if they only suspect that one "is about to" commit a crime without informing the person spied upon until long after the event. Thus, we may be overheard in the supposed privacy of our homes, without a realistic chance to protest.

The Attorney General has said he will use the wire-tapping authority to protect us from threats to national security and from organized crime only. But there are not even these restrictions on local police. They may listen for any crime carrying a penalty of over one year. This means that, for example, whenever one were suspected of allowing his teenage children to sip beer or wine on a festive or sacramental occasion, the police could spy on his bedroom. (The act allows interception of oral, as well as telephonic, communications.) Of course, no district attorney is likely to sanction the use of so awesome a weapon for so minor a transgression. But small crimes may be used as a pretext to eavesdrop for suspected evidence of larger ones, as those who have traced judicial efforts to limit exploratory searches know too well.

The problem here is that one never knows for what reason electronic gadg-etry--such as the device widely advertised as The Snooper--will be used. Even if you act in accord with community mores today, you cannot predict when a new district attorney will attempt to build his reputation on your supposed transgressions. Can we afford to maintain the privacy of the home against such a variety of intrusions by the inquisitive state? This question--as well as "Will it help catch criminals?"--must be answered. And my answer is that we must afford privacy. It is the principal distinction between a free society and the sullen tyranny of Big Brother.

The most vocal of today's attacks on the Bill of Rights are directed against the Fifth Amendment. A rising crime rate is associated with Supreme Court rulings dealing with the privilege against self-incrimination. Critics seem to believe that if that privilege were eliminated or weakened, there would be more confessions, and that if there were more confessions, there would be less crime and we would all be better off. But they offer no evidence that limiting the Fifth Amendment would substantially limit crime. They really propose that we experiment with the liberty we enjoy, in order to receive a benefit that may not exist.

The privilege not to "be compelled in any criminal case to be a witness against" oneself derives from an earlier, crueler age than ours. Then, people did not wonder at the necessity of the privilege to remain silent in the face of criminal accusation. They were too familiar with torture and long imprisonment as means of acquiring information.

But the Middle Ages are gone. Why do we still have the Fifth Amendment? One reason is fear that without it, the brutality of the extorted confession will continue to plague us. Forty years ago was not the Middle Ages, yet the Wickersham Commission, appointed by President Herbert Hoover in 1929 to investigate law-enforcement procedures, discovered that police still used torture to gain admissions of guilt. Today is not the Middle Ages. yet the crew of the Pueblo discovered that the need for the Fifth Amendment has (continued on page 274)Our Besieged Bill of Rights(continued from page194) not disappeared. One might say we are 40 years and 7000 miles from such incidents and, generally, we are. But that statement is testimony to the effectiveness of the privilege, not to its superfluity.

That we still need protection against coercion is demonstrated by the amount of violent interrogation that has been discovered in the past decade. The Civil Rights Commission found violence directed at Negroes for many reasons, among them the obtaining of confessions. A study in New Jersey found coercion to be a common questioning technique, used with impartiality against both white and black suspects. Lest anyone think that this represents the irreducible level of violence, the same study showed that in nearby Philadelphia, coercion was a rare phenomenon. The difference was attributed to the determination of Philadelphia authorities to respect the privilege.

Even when the zeal of law enforcers does not extend to physical brutality, threats and promises can be equally effective in breaking the will of a suspect. For the law-enforcement resources of an entire state to close around a lone suspect and intimidate him into confessing is unseemly. And it is dangerous. If a little fear makes a guilty man confess, a lot might move the innocent to admit guilt. More likely, it could make a minor criminal exaggerate his deeds, clearing the police files of unsolved crimes. These are too common realities, and judicial enforcement of the Fifth Amendment is the primary limit on their occurrence.

The Fifth Amendment privilege protects against more than physical and psychological brutality; it is intrinsic to the individual's right of privacy. The dwindling of privacy has been as frequently noted as the rise of crime. In the modern world, we have only belatedly realized that privacy is an increasingly scarce social resource and one that must be vigilantly protected against the claims of efficient social ordering. We have, luckily, so far prevented the establishment of a national computer bank, for example. The projected uses of the computer seem perfectly legitimate: Some well-meaning men want an efficient means of arranging all the information the Government already has, in order that it may be better used for the good of all. What is wrong with that? Simply this--that everyone has something to hide; not something that he is necessarily ashamed of but that he wants for his own. That he once registered as a Democrat, for example, or made an improvident investment, or engaged in a youthful escapade not even criminal, or bought an Edsel. These are the sorts of facts that the state knows but that we do not want it to know too well.

Perhaps the best way to appreciate what the privilege against self-incrimination really means is to imagine a system without it. There are, of course, countries that have neither a Fifth Amendment nor tyranny. But they have developed other restraints in dealings between state and citizen. From the record of coercion in the United States, even with the privilege, it is apparent that we have developed no substitute for the amendment. And repeal in the present context would hardly provoke a search for substitutes. If we "liberate" our officialdom from the Fifth, it will not be because the officials have so internalized its values as to render it superfluous. Rather, it will be because we have decided we can no longer afford the restraints it imposes. Politically, repeal would represent positive encouragement to do what formerly the amendment prohibited. Post-repeal America would not be a non-Fifth society; it would be an anti-Filth society.

What could happen without the amendment would seem to many a whole new order of police behavior. One can imagine the investigator calling the citizen in for a chat about the events of the past few days, weeks or years: "Come down to the station and bring your diary with you," he might say. "What crimes have been committed in your vicinity in the past month? Do you take a morning walk? Why that route?" At this point, the citizen may keep silent, which will no doubt interest a jury, or he will have to defend his innocent private habits.

How many details of one's life are perfectly legal and honorable, yet personal? What is more totalitarian than having to report on these things at the insistence of some bureaucrat who naturally views his task as more important than your privacy? Yet it is only an explicit prohibition such as the Fifth Amendment that prevents the state from seeking such total knowledge. The ends are legitimate (investigating crime) and the means seem mild enough in the individual case (just a few polite questions). But if the interrogation is limited only by the number of crimes to solve, there is no limit at all.

But the Fifth Amendment does not merely protect us against embarrassment. It keeps us out of jail. Four hundred years ago, Montaigne wrote, "No man is so exquisitely honest or upright but he brings his actions and thoughts within compass and danger of the laws, and that ten times in his life might not lawfully be hanged." In the intervening centuries, the number of crimes for which we may "lawfully be hanged" has been reduced. But the number for which we may be imprisoned has multiplied a hundredfold. How many tax underpayments are the result of unwitting errors by the taxpayer? How much simpler prosecution would be if the taxpayer could be interrogated alone, without either his lawyer or his records.

There is a more insidious possibility for law enforcement in a post-Fifth Amendment era. Instead of investigating specific crimes in which a suspect might have been implicated, the state can call in people for general investigations. Who has not wittingly or unwittingly exceeded the speed limit or littered the sidewalk or crossed a street against the red light? When asked, "Have you committed any crimes?" what does one say? To say no is to lie. If done in court, this is perjury; out of court, it may be called obstructing justice. To confess is to pay penalties just because some official has singled one out for reasons that will never be known. In effect, the state can make either a criminal or a perjurer out of most anyone it chooses. Pity the unfortunate man who falls out of favor with his local district attorney!

In fact, today's large number of crimes necessitates some sort of selection by law enforcers, but the criteria of selection are never specified by the legislature. Some law-enforcement agencies concentrate on street crimes; others perceive a threat in subversion and question suspects about their politics; yet others spend their time enforcing civil rights laws. But the decision may as easily be made not according to what crime seems most important but according to what group one hates or fears most. Crime can be investigated while keeping an alert eye on ethnic or political minorities. Membership in one of these groups can become an invitation to inquisition. Political leaders, in fact, are inclined to define law-enforcement priorities in terms of the anxieties of their electoral constituencies.

Even those who fall on the right side of prosecutor discretion today ought not to be so sure that they can get along better without the Fifth Amendment. It was only 15 years ago that the clamor of McCarthyism threatened the privilege against self-incrimination. That campaign was not directed against street crime but against the right to hold one's own political beliefs, the right to believe differently from Senator McCarthy without being publicly harassed. McCarthy is gone, and the Fifth Amendment and we are still here, but that is no assurance that another witch-hunt will not occur. The Fifth Amendment is part of our essential insurance against that day.

Not only the Fifth Amendment but our whole heritage of individual liberty rejects inquisitorial law enforcement. Those who would tamper with this heritage argue that it will be more difficult to catch criminals if we cannot make them confess. Of course, there are times when no other evidence is available, although not so often as is frequently asserted. I must emphasize, however, that liberty is worth this small price. We should not rush to abandon our autonomy as individuals just because it creates inefficiencies in the apprehension of criminals. Democracy may be an inefficient means for determining policy, but we do not rush to abandon democracy. We are justifiably concerned with crime, but the criminal's power is nothing compared with the power of the state.

Proponents of new measures argue that "adjusting" the Fifth Amendment will not unleash the entire force of the state. They claim that the Fifth Amendment that protects us against arbitrary intrusions by the state is something different from recent judicial interpretations. It is said that the courts have enacted a new code of criminal procedure under the guise of interpreting the Constitution. It is true that the Supreme Court has prescribed precise rules that, understandably, are not present in the Constitution. But such rules are the only way to make the Constitution a reality. When Wolf vs. Colorado left enforcement of the Fourth Amendment to the states, it was too widely taken as a green light to search and seize at will. The Court has not expanded the privilege against self-incrimination: It has created effective remedies and extended their protection to the poor and ignorant.

The test of the constitutionality of a confession has long been whether it was voluntary or not. A confession could not constitutionally be beaten out of a suspect. It could be extracted through more subtle psychological pressures playing upon the fears of the suspect. What the Court did in the Miranda decision was to apply the same standards to the reality that confronts the poor and the ignorant defendant. Organized criminals have their lawyers and know enough to call them when they confront the law. When they volunteer a confession, it is a bargain, exchanging help to the police for lesser charges and lighter sentences.

But a lawyerless defendant lacing the law for the first time has no knowledge of such bargains. Ignorant of his rights, the suspect sees no limits to what his captors can do. Indeed, interrogation manuals suggest creating the impression of police omnipotence. And even if there are limits, who enforces them against the police? The suspect in this position frequently has no real choice in his behavior. This produces results for the inquisitor. It also provides an incentive for the police to violate other rights. Although the Fourth Amendment requires probable cause for arrest, the availability of information from the uninformed prisoner encourages the arrest of large numbers of people on "suspicion," in the hope that some of them will reveal incriminating information under the stress of custody.

Miranda is closely tailored to the coercive atmosphere in which interrogation occurs. The police are not forbidden to ask questions; they are not required to warn informants who are not suspects; and volunteered statements are perfectly acceptable evidence. What Miranda does require is the warning of a suspect that what he says can be used against him and that he has a right to remain silent and to have a lawyer--free, if he cannot afford one. These are not new rights. They are all means of effectuating the long-recognized privilege against self-incrimination, based on the appreciation that rights are useless if the holder is ignorant of them. Miranda upholds the proposition that the poor first offender is as entitled as any of us to the right that anything he says should be voluntary.

If Miranda were overturned, it seems clear that the poor, disproportionate numbers of whom are black, would be most affected. Organized criminals, as we have said, do not talk, even in the face of illegal threats. The police are usually careful not to harass well-to-do suspects (who have lawyers, anyway). So, in effect, a separate system of interrogation is established for the poor. The counterargument--in favor of abridging the Fifth-- is that all that is sought is an efficient system of criminal investigation that accidentally affects the poor somewhat differently than others. It is a fact of life that the poor suffer in many ways. A fact of life it may be, but not one we can overlook when the practical effect of a proposed rule change clearly would be even greater discrimination against the poor, who could be pressured to talk more easily than others.

The poor know that whatever happens to the Fifth Amendment, business-crime suspects are unlikely to be grilled at the station house. And this may explain why proposals to weaken the amendment come mainly from the better off. To establish this mode of law enforcement is to abandon something fundamental to America, equal justice.

We cannot afford to abandon equality. We have already seen some of the costs of a racially divided society. These costs include joblessness and riots and the very crime wave we want to diminish. It is true that equality is slowly achieved and will only slowly affect the crime rate, but it is essential to peace in our cities. Whatever short-term gains may How from repression will not be worth deepening the alienation of the repressed. A state of siege cannot be the goal of law and order.

So far, we have assumed that the protection of the Fifth Amendment exacts its price through crime. But there has been no sufficient showing that abrogation of the amendment will significantly affect crime. Interrogation is a technique for solving crimes, not preventing them. Even in solving crimes, confessions are not usually essential. The district attorney of Los Angeles County has stated that Miranda-type warnings have not significantly affected his conviction rate.

The Supreme Court is not one of the significant causes of urban crime, but the way our society handles the availability of addictive drugs and guns is. In virtually all of our cities, an appalling proportion of property crime is committed by addicts. We can do something constructive about this crime. Addicts commit crimes for money to support their habits. Simply prescribing maintenance doses of addictive drugs, either free or at a cost of less than a dollar a day, would eliminate a substantial cause of crime.

Uncontrolled ownership of guns also contributes to violence. The mere availability of a gun has turned more than one family quarrel into a murder. Easy access to guns paves the way for armed robbers. This is, again, a problem about which we have the power to do something yet refuse to act adequately. It is ironic that some of the most vociferous opponents of the Supreme Court also oppose gun-control legislation. If they really wished to control crime and preserve liberty, their positions should be reversed on both issues.

Experimentation with such steps as dispensing drugs and restricting the sale of firearms is a practical approach to the crime problem as is a determined effort to eliminate poverty and other underlying causes of crime. If such proposals do not work out in practice, they can be modified or abandoned. But constitutional experimentation is far more difficult. Constitutional restrictions serve a more complex function than to provide statute law and guide judicial decisions. The constitutional rule, by instructing officialdom as to its primary duties to citizens, inculcates a basic respect for individual dignity. To alter the rules every so often devalues the social policy underlying them. The entire relationship between citizen and state is altered, with results neither foreseeable nor easily correctable. Perhaps with this in mind, we have never fundamentally altered the Constitution. And we have never even tampered with the Bill of Rights.

Establishing the basic relationship between the citizen and the state is the greatest task of the constitution maker. It is a task difficult to do well, because the arrangement must last far beyond what the wisest man can foresee. Whenever adjustments are required, the immediate demands of the state always seem so pressing and legitimate. In any single case, it is difficult to resist the demands of necessity, as the Japanese-Americans who spent World War Two in concentration camps learned. What if the Bill of Rights had been written during that crisis? We are in the midst of another crisis now and it is an equally bad time to rewrite the Constitution. Especially, we should not rewrite it in response to proposals that trade away liberty for the illusion of security. In the end, we would be protected from neither the state nor the criminal. If we sacrifice only the least aware of our fellow citizens, we exacerbate the causes of violent conflict, without eliminating any of the symptoms. There are many ways of fighting crime, but neither for rich nor for poor are there many ways to protect the privacy and integrity of the individual--rights and values that are the very essence of constitutional liberty and security.

One of the tenets of the legal profession is that bad cases make bad law. Times of stress make even worse law. It would be bad law and bad policy to weaken the Fifth Amendment, for it is even truer today than it was 178 years ago that we can afford liberty. And we must preserve those laws that guarantee it.