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from: Walter Dellinger
to: Dahlia Lithwick

When Is Consent Not Consent?

Posted Wednesday, June 19, 2002, at 6:26 PM ET

Who are these people?

Dear Dahlia,

Before I had time to finish my note back to you, I had to rush to the airport barely in time to catch a flight ("Hold the door! Hold the door!") to Pittsburgh, from whence I am heading on to some place called Nemacolin Woodlands to speak at a meeting of the 50 state attorneys general.

So, I apologize for being tardy in responding. But I found your question about my reaction to Monday's decision in the Drayton case pretty difficult. The opinion—upholding the search of a bus passenger based on his "consent" when he wasn't told he had a right not to consent by the three armed officers who took over bus—bothers me in a couple of ways and doesn't bother me in another way.

I am not troubled by the search itself. If the government believes that every air, rail, boat, and bus passenger has to be searched, whether they like it or not, that's a price we have to pay in an age of weapons of mass destruction.

I am troubled, however, by the absence of judicial candor in these search cases in which people in intimidating circumstances are judicially assumed to have consented voluntarily when they are not told they have a right not to consent. The obvious reason this simple information isn't conveyed is because people who are told they have a right not to consent are less likely to consent—at least when they have something to hide. The judicial conceit of "voluntary consent" is a winking fiction that undercuts the integrity of the law. And that troubles me. Better to say the police can just do it, with or without consent.

It also bothers me that selective searches, where "consent" is dubiously obtained, may go hand in hand with unjustified selective racial profiling. I am generally more open to innovative post-9/11 security methods that affect all of us than I am to those that impose a selective burden on some of us, unfairly chosen.

I guess I'm not much of a privacy zealot. In the America of the future, perhaps we can compensate for the inevitable decline in privacy by striving to become more tolerant of one another's foibles.

About Moussaoui. Maybe this case does show that the normal criminal justice system is not the right answer. About the detainees generally, I am truly perplexed about the right answers. We have one system of rules about war and foreign combatants and a very different set of rules about domestic law enforcement and criminal justice, and we never before really confronted a circumstance in which these two paradigms became intertwined. Whatever we do, there ought to be judicial review—directly in the U.S. Supreme Court if Congress doesn't trust the lower courts and chooses to lodge all review there—of all these extraordinary detentions. We ought not allow unilateral executive determinations. And surely, Congress and the president can trust the Rehnquist court not to go crazy.

We ought to talk about the decision overturning the "mauling dog" conviction out in California. But Thursday's bunch of Supreme Court decisions may crowd it out of our e-mails.

Regards,
Walter

the breakfast table
entries
12345678910111213141516
from: Walter Dellinger
to: Dahlia Lithwick

When Is Consent Not Consent?

Posted Wednesday, June 19, 2002, at 6:26 PM ET
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Walter Dellinger is an attorney in Washington, D.C. and the Douglas B. Maggs professor of law at Duke. Dahlia Lithwick is a Slate senior editor.
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Notes From the Fray Editor:

The Breakfast Table Fray has remained a shining example for all. The Table moved from discussions of the merits of Atkins to broader discussions of the nature of court representation. The Fray moved along with it. Several incisive debates about the nature of contemporary judicial federalism and Dellinger's "rule of three" have ensued. One of the best Frays ever began with Dira Necessitas's supposition that Lithwick would stop her Scalia-bashing—a harmless introduction to a fascinating juridico-psychoanalysis (or psycho-juridical analysis).

Notes From the Fray:

[Dellinger] has the good sense to understand that judicial overreaching is not a liberal or a conservative problem but an institutional one that should be resisted by everyone who has a shred of faith in democracy and, in particular, in the increasingly quaint idea that popular legislatures should make legislative decisions….

There is a longer-term insidious consequence of judicial overreaching, too, that takes the form of executives and legislatures dallying about nearly everything really controversial in the hope -- increasingly realized -- that they will be relieved of the hot potatoes by the courts, especially the SCOTUS.

-- Publius

(To reply, click here.)


I challenge [Lithwick's] shorthand characterization of that Federalism jurisprudence as "efforts at curbing congressional overreaching (often to give powers back to the states)".

That portrays some of the less controversial of the Court's Federalist opinions. But the most controversial and decidedly activist sequence of the Federalist opinions -- their so-called Eleventh Amendment jurisprudence, named for the Amendment that they now admit does not say what they earlier said it says -- has nothing to do with Congressional overreaching. The issue in the cases I was referring to in the quoted paragraphs above (including the case that the Court agreed this morning to hear) and which I believe Dellinger was referring to did not concern federal legislation whose purpose was to usurp for the federal government powers traditionally held by the states. The statutes at issue have broad applicability not just to state governments but to private entities also.

The Court's conservative narrow majority says the Constitution protects states from being subject to such legislation, this notwithstanding their recent acknowledgment that the text of the Constitution actually contains no such protection.

-- Beverly Mann

(To reply, click here.)


Let's apply Dellinger's analysis to Castillo's streak. The reason that the "Latin American record" was noted and celebrated was that it matters enormously to an important group of baseball fans - Latin Americans in their native countries. Prowess in baseball is an important signal to many in those countries that they belong (maybe more important than prowess in soccer, because the Dominican Republic et al. have great success in placing players in the best professional baseball league). That's why people in Latin American countries know which Latin American players have the most career hits, career wins, the best batting average, etc. Until they stop paying attention to the success of Latin American players compared to other Latin American players, then it's reasonable for baseball to do so, even under Dellinger's analysis.

Besides, it's good marketing.

-- randy khan

(To reply, click here.)

(7/25)

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