Scalia's constitution

Boston Globe
Jun. 19, 2006

SUPREME COURT Justice Antonin Scalia said last year, ``I'm what you call an originalist, one who believes the Constitution should be interpreted exactly as it was adopted." But last week he wrote a majority opinion for the court abandoning the venerable principle that the police have to knock before entering a home to serve a search warrant. ``Originalism" looks like a smokescreen to disguise Scalia's desire to enhance police powers.

In his opinion, Scalia acknowledged that English common law, dating back centuries, requires the police to announce their presence and give householders time to respond. This was a prevailing legal doctrine in 1791 when the Founding Fathers strengthened the Constitution with the Bill of Rights, including the Fourth Amendment, which forbids unreasonable searches.

But Scalia contended the must-knock rule did not apply when the police found drugs and a gun at Booker Hudson's home in Michigan. Scalia said times have changed since a landmark Supreme Court case in 1914 barred evidence obtained in an illegal search. Aggrieved parties are more likely to seek damages in civil suits against police misconduct, he said. Also, ``the increasing professionalism of police forces" -- his words -- means that they take the constitutional rights of citizens more seriously.

``Rights do not grow smaller or larger," Scalia said last year at Texas A&M University. But Scalia was abridging rights when he wrote last week that police professionalism no longer means they have to knock. Had the ruling come last year, he might have been in the minority, but the replacement of Sandra Day O'Connor with Samuel Alito has shifted the court away from the protection of defendants' rights, just what the country doesn't need when the War on Terror has loosened restrictions on law enforcement agencies.

``The court destroys the strongest legal incentive to comply with the Constitution's knock-and-announce requirement," Justice Stephen Breyer wrote in dissent. Breyer could find no precedent for this action in any cases the court decided since its landmark 1914 Weeks v. United States ruling, which established the exclusionary rule disallowing evidence from illegal searches in federal cases. The court extended it to the states in 1961.

``The Constitution is not a living document," Scalia said last year. But the exclusionary rule is one of the great protections against arbitrary searches, an example of the Supreme Court shaping the Fourth Amendment to the needs of modern society. That's a living Constitution of which Americans can be proud.

A reading of Scalia's decision suggestsa desire to chip away at the rule. With Anthony Kennedy, who was supposed to be a swing vote, siding with Scalia, Alito, Clarence Thomas, and Chief Justice John Roberts,a bloc is forming that would exalt the power of the state over people's fundamental liberties.