EXECUTIVE BEATS COURT - AGAIN

AN ESSAY

In Discipline & Punish (Surveillier et Punir)(1975), Michel Foucault discusses the origin both of prisons and the police force. Both prisons and police forces are relatively new developments in Western society. And they both perform “surveillance” functions. In Foucault’s view, industrialized society is a “disciplinary” society, and discipline only works when the ruling power carefully scrutinizes its subjects with a view to controlling, exploiting and—ultimately—improving them. Good State surveillance, therefore, is essential to achieving these ends.

Professional police forces perform “surveillance” on the population. They not only investigate reported crimes, but they also closely observe everyday behavior in a quest to find violators. They subject everything within their gaze to constant judgment to determine whether they see any “violations.” In modern society, the police act as the sovereign’s all-seeing eye. In order to maintain the disciplinary State, the police keep watch on all the sovereign’s subjects, rigorously monitoring even the most banal behavior for infractions. To quote Foucault, modern police power “must bear ‘over everything’: …the dust of events, actions, behavior, opinions—‘everything that happens;’ the police are concerned with ‘those things of every moment,’ those ‘unimportant details[].’” Discipline & Punish, p. 213. In a word, modern police power embraces all actions all the time.

Today, we are accustomed to public surveillance. It is part of modern life. But we do not even really consider how revolutionary a police force was when it first appeared in the 19th Century. As we understand them, police forces did not exist when the Framers introduced the Bill of Rights in 1791. To that extent, most basic American criminal procedure rights were not answers to modern police practice; modern police practice arose after the Constitution was written. If anything, many guarantees contained in the Bill of Rights (ie, protection against “unreasonable searches;” “compelled self-incrimination;” “quartering of soldiers in private residences;” and “warrants,” to name a few) were directed toward the abusive practices of occupying British armies during the colonial era. Yet today, jurists attempt to reconcile 18th Century legal abstractions with domestic practices developed in the 19th Century and beyond. This is a difficult venture, and it is understandable why the police can do as much as they can. If the Constitution were written in 2000, doubtless many well-established police practices would be outlawed as a matter of individual right. But our Constitution dates from 1787. It was reacting to royal abuses by George III in the 18th Century, not domestic practices introduced in a completely different historical context. Thus, modern police forces had a clean analytical slate when they emerged in the 19th Century.

From whence come the police? As Foucault recognized, the police are the “eyes of the sovereign.” In strict form, the “sovereign” or “King” is the Executive Branch. In the American constitutional system, the federal Executive power is vested in the President of the United States, see U.S. Const. Art. II, § 1, while the State Executive power is vested in State Governors under their respective Constitutions. In constitutional terms, these Executive powers have authority to “faithfully execute the laws,” see U.S. Const. Art. II, § 3, and that means they can create police forces. This is exactly what State governments did in the 19th Century when they minted municipal and State police forces. And the federal government followed suit by creating the Department of Justice and Federal Bureau of Investigation (FBI). These new Executive “offshoots” set about developing practices to enforce the myriad laws that arose well after the Bill of Rights came into effect.

In effect, the “myriad laws” that sprang up in the 19th Century coincided with industrial development. In 1787, the United States was not an industrial power. It was largely an agrarian, trading Nation. Heavy industry did not yet exist. There was no steam engine, railroad or electricity. By 1850, the United States was a leading industrial power. This change mirrored changes in values. The law enforced the values of the new society. In the mid-19th Century, States wanted productivity. Productivity in industrial society, in turn, demanded respect for property and detailed attention to work. Foucault reasoned that “discipline” was essential to enforce these values, and “surveillance” was the way to maintain discipline and attention to detail. Police forces represented the ideal method to “keep an eye” on the population and to ensure adherence to “industrialized” laws.

To achieve maximal surveillance and obedience to the new values, the police had to develop specific practices for enforcement. Searches, interrogations, undercover operations and wiretapping all helped them “see” behavior that potentially violated the new laws. Only the constitutional prohibitions laid down in 1791 blocked their way. Certainly there were searches and interrogations in 1791, but they did not measure up to modern police procedures. In 1791, constables investigated crime. There were no uniformed police on the street at all times. There were no central police offices or databases storing information on offenders. Constables only began their work when someone lodged a complaint. They did not stand on the street observing potentially criminal behavior. By 1850, uniformed police did prowl the streets observing potentially criminal behavior. There were central police offices that constantly strengthened crime detection and suppression. They were enforcing the sovereign’s laws 24 hours a day, with or without specific complaints. How were they to know whether they were violating constitutional principles that could never have contemplated the historical circumstances in which the State now found itself? After all, the Constitution said nothing about “surveillance.” Such a thing really did not exist in 1791. Yet now it was the bulwark of police practice.

It fell to the Judiciary to determine whether modern practices violated the Constitution. In the American constitutional system, many refer to the Judiciary as the “Third Branch” or—as Hamilton said—the “Least Dangerous Branch.” Federalist No. 78. Historically speaking, the American Judiciary was completely unprecedented because it was intended to be “independent” of both the Congress and the Executive. In Hamilton’s words, the Judiciary’s power lay solely in its “judgment,” not in “the sword or the purse.” Id. In theory, the Judiciary has the sole power to say whether any action by either the Executive or the Congress violates the letter or spirit of the Constitution. In practice, however, the Judiciary rarely exercises its independent authority. Especially in modern times, the Judiciary defers to the Executive or Congress without ever exercising the unprecedented “judgment” power that Hamilton envisioned.

Foucault understood this judicial weakness. He wrote that the police—and by extension, the Executive—offered “slight resistance to the reorganization of the Judicial power,” because the police have “never ceased to impose [their] prerogatives upon it, with ever-increasing weight, right up to the present day.” Discipline & Punish, p. 215.

These words have special resonance as they apply to the United States Supreme Court in its occasional confrontations with the Executive and the police. Amazingly, until the 20th Century, the Supreme Court never interfered with State criminal practices; it simply ignored the question by reasoning that the Bill of Rights did not apply to State governments. In the 1950s and 1960s, the Court took a bolder stance on the Bill of Rights, holding in numerous decisions that the prohibitions laid down in 1791 not only acted upon State governments (and their police forces), but restricted their criminal practices as well. Famous decisions such as Mapp v. Ohio, 367 U.S. 643 (1961), Miranda v. Arizona, 384 U.S. 436 (1966), Duncan v. Louisiana, 391 U.S. 145 (1968) and Terry v. Ohio, 392 U.S. 1 (1968) expressly held State police forces accountable for violating constitutional guarantees. Similarly, the Court expressly reversed the Executive in its famous Steel Seizure decision. See Youngstown Sheet & Tube Co. v. Sawyer, 343 U.S. 579 (1952). In this era, the Supreme Court actually exercised its “independent judgment power” over the inherently more powerful Executive and its police force.

But this judicial insurrection did not survive long. Beginning in the 1970s, the Supreme Court began to resume its more complicit role with respect to Executive and police authority. In the ensuing years, the Court has largely eradicated the decisions that had breathed life into its “independent judgment power.” In case after case, it sided with the police in its efforts to make investigating and prosecuting crime easier. In case after case, it permitted greater search powers and surveillance. While it did not expressly overrule the critical constitutional rules it announced in cases such as Miranda, Mapp, Duncan or Gideon v. Wainwright, 372 U.S. 335 (1963), it introduced a whole range of qualifications, restrictions and explanations that largely eviscerated their significance. Furthermore, the Court has never declared any capital punishment method (another core Executive power) applied by the States or the federal government to be “cruel and unusual” under the Eighth Amendment. Never. In this light, the Court has largely confirmed Foucault’s observation that the police and Executive may freely “impose [their] prerogatives upon it.” Discipline & Punish, p. 215. In sum, the Supreme Court is a model of institutional weakness. It does not seriously challenge the real power in government. In fact, it devotes much of its intellectual energy to doctrines such as “standing,” “justiciability,” “mootness” and “ripeness,” which are specifically designed to sidestep answering constitutional questions altogether.

Should we be surprised that the Court so easily yields to Executive and police pressure? Probably not. In large measure, Foucault is correct about natural judicial weakness. When Hamilton envisioned a bold new federal Judiciary, he was speaking in theoretical abstraction. He could not have foreseen that his theory would not have worked in practice. After all, the Judiciary has nothing but “judgment;” it does not have the “sword” to compel allegiance with its rulings. Rather, the Executive holds the sword, and the Executive—through its police apparatus—holds the real power in our society. Even in those cases in which the Supreme Court has defiantly resisted the Executive, the Executive has simply chosen to ignore the Court. President Jackson, for example, famously ignored a Supreme Court ruling (Worcester v. Georgia, 31 U.S. 515 (1832)) that favored the Cherokee Indians by evicting them from their tribal lands in the 1830s. How? Because he controlled the army and the Court did not. At most, the Court can rebuke the President with rhetoric. But rhetoric does not stop armed men from doing what they wish.

There are larger social issues at work behind judicial weakness. After all, the Executive—through its police force—has an interest in maintaining dominant social values. Surveillance and police power are designed to maintain the “disciplinary” society necessary to maximize industrial production. And productivity is the overreaching goal. In some sense, the Court must know this. Its members come from a social class that has in interest in maintaining dominant social values. That is why it does not tread too heavily on practices that are designed to further our industrial society’s quest for stable, uninterrupted productivity. After all, blessing the people with too many “rights” would put an undue burden on enforcement. Without easy enforcement through pervasive discipline, the social order—with its intrinsic inequalities—would be much more difficult to sustain. Perhaps that best explains why the Executive always beats the Court: This Nation will never permit anyone to rock the boat too much.