The emergence of the Gig Economyhas allowed millions of Americans to earn additional money without the constraints of rigid work schedules. However, the flexibility allotted to contractors through ride-sharing and food delivery services is under threat in California. Back in 2019, the California legislature passed Assembly Bill 5 (AB-5) that would classify many freelance workers as “… workers bona fide employees, with schedules and hours determined by the company rather than the worker..” (p.4). The California courts apply AB-5 under the three-prong test developed in Dynamex Operations v. Superior Court to distinguish contractors from full employees; after AB-2257 passed in 2020, “..109 categories of workers were exempted from AB-5..” (p.7). In response to AB-5, delivery and ride-sharing platforms collectively generated Proposition 22 to exempt these services from the law (p.7). Unfortunately, the law was ruled as unconstitutional 2021; per the Los Angeles Times:
That’s in part because the law, Roesch wrote, infringes on the power of the Legislature explicitly granted by the state Constitution to regulate compensation for workers’ injuries.
Amid all the AB-5 turmoil, one question emerges, who benefits from labeling gig workers as full-employees? It certainly isn’t the Uber driver. Considering, 80% of surveyed independent contractors “…reported having done some sort of independent contracting gig in the last year said that it was a part-time occupation…” (p.6). Also, most gig workers have insurance benefits either from their primary job or spouse (p.5) and prefer the flexibility over fringe benefits that “…bear opportunity costs in the form of foregone income they could have received if not for the benefits.” (p.6).
When viewed through the lens of Bootleggers and Baptist (1983), it is clear that few economic agents are hiding within the smokescreen of the workers’ rights coalition. The irony is, the demographic that AB-5 is designed to “help’, vehemently opposed the legislation. It can be assumed that the California legislature is a Dual-Role Actor in this coalition. Why? State lawmakers most likely passed this law as a worker protection provision for gig economy employees. However, Judge Roesch’s admission that excluding gig workers interferes with the authority of the legislature. Lawmakers are also Bootleggers for having an invested interest in not relinquishing political power.
One notable economic agent on the bootlegger side of the coalition would be labor unions. Some readers may wonder why labor unions would not be considered a Baptist or even a Dual-Role Actor. Unions are heavily involved in the political process (p.410), theoretically could be perceived more as political interest groups than employee protection organizations. Arguably, these organizations do little to advance the interests of workers. Labor unions within the state of California had angled to organize ride-share drivers, “…contributing to the pressure on legislators to make a change..”(p.7). Various labor unions throughout California have expressed that AB-5 would reduce the exploitation of contract employees. However, they benefit from this legislative victory because it reinforces their political currency as an interest group. One union that stands to gain the most from reclassifying Uber drivers are taxicab unions. It is well known that the taxicab industry has struggled to compete with the convenience and lower rates of ride-sharing apps. The state of Nevada has placed restrictions on platforms offering ride-sharing services. Uber has faced many regulatory barriers often supported by taxi drivers (p.191); most notably “medallion systems” where governments issue a limited number of licenses to operate as a driver (p.574). Classifying Uber drivers as full-employees would make employing contractors more costly and onerous, thereby disturbing Uber’s operations. All of this to shield taxi drivers from the Schumpeterian gales of creative destruction.
The Arizona Supreme Court’s recent decision Torres v. JAI Dining Services examines the issue of liability in the case of restaurants and bars over-serving alcoholic beverages. A patron of the Jaguar Club in Phoenix got ejected from the club after drinking for hours. He subsequently drove to his brother’s house to sober up and then was dropped off at his home. The intoxicated patron slept for approximately an hour before agreeing to drive his girlfriend home. Unfortunately, he was still inebriated when bringing his girlfriend home, striking a car, killing both occupants inside the vehicle. A jury rendered a verdict that the club and the driver were both liable for damages. JAI was able to get this ruling reversed by the Court of Appeals before the case reached the Arizona Supreme Court.
However, JAI attempted to challenge this ruling since the intoxicated patron arrived safely at his home and still decided to drive. JAI argued that it was similar to driving drunk after drinking at home. In an analogous case, Patterson v. Thunder Pass, the staff made adequate arrangements to ensure the drunk customer got home safely. JAI made no such arrangement; since the ruling Ontiveros v. Borak, state courts no longer recognize immunity from over-serving. Overall, the Supreme Court’s decision to overturn the Court of Appeals reversal on JAI’s liability was a good call.
The Johnson Act and Challenges to Class II Gaming:
Under the Indian Gaming Regulatory Act (IGRA) 1988, there are three distinct classifications of gambling conduct on tribal soil. Class I games are generally of little economic value to the tribes operating gaming establishments; are associated with intracultural ceremonies. Class I games are unregulated by any nontribal institution (p. 8). In contrast, Class II games fall within the range of bingo and associated games (tip jars, pull tabs, and card games) (p.3). However, any banking card games such as Blackjack and Baccarat fall outside of the category of Class II gaming along with traditional casino-style games such as slot machines (p.4). Class II games are free of state and federal regulation providing the form of gambling is not prohibited (p.1341). Pursuant to IGRA, the tribe establishes local ordinances governing the operation of Class II gambling. All local regulations need to be approved by National Indian Gaming Commission (NIGC) (p.1341). The final class of tribal gaming is Class III, including banked card games and traditional casino games (p.4). Per IGRA, the tribe must enact a tribal-state compact to provide Class III gaming services (p.305). Arguably, games such as slot machines are significantly more profitable than Class II games .
Over the years, some controversy has surfaced regarding what games fall under the umbrella of Class II games. Despite IGRA acting as a well-intentioned compromise, providing the tribes with the right to pursue gaming enterprises and balancing for safeguarding tribal gaming from criminal influences (p.2), it failed to foresee technical advances in the gaming industry. By the 1990s, digital aides to accompany Class II games such as bingo and pull-tab were devised, making them superficially similar to Class III games such as slot machines and video Blackjack. After years of length, court battles it electronic versions of Class II games are now recognized as distinct from Class III forms of gambling. Class III games incur substantial transaction costs of negotiations with the state the tribal territory resides within.
The attempt to prohibit electronic variations of Class II games, such as bingo, is justified by the Johnson Act. This law enacted before IGRA banned the use of gambling devices in establishments in the Indian country. The Johnson Act was soon challenged in the courts; by various tribes providing Class II gaming services. One prominent case was Citizen Band Potawatomi Indian Tribe of Oklahoma v. Green, 995F.2d 179, 179 (10th Cir. 1993). The Oklahoma Supreme Court affirmed the district court’s decision that video lottery terminals would not apply to the IGRA waiver of the Johnson Act since Oklahoma outright bans such gambling devices. The court sided with the state, but it did open the door for video pull-tab and bingo terminals by making such an exemption contingent on the state loosening restrictions on these actives. After the Citizen Band ruling, Oklahoma passed the Amusement and Carnival Games Act, this liberalized gaming in Oklahoma (p.7). Unfortunately, the tribes struggled to negotiate a compact much beyond expanding to off-track horse racing (p.8). The tribes were still languishing in a purgatorial dead-end from the pressure of the social conservatives of Oklahoma (p.8). The East Shawnee Tribe “…developed a paper pull-tab game that utilized an electronic reader to scan paper pull-tabs and display an image on a video screen when the machine dispenses the paper pull-tab..” (p.9). The tribe circumvented their gaming commission and requested a ruling from the CFR court. The CFR’s favorable ruling did not dissuade the U.S. Attorney Lewis of the Northern district from viewing “…such devices as an unlawful class III electromechanical facsimile of a pull tab game..” (p.9). Subsequently, the District Court ruled that this variant of an electron pull-tab game was a Class III game (p.10). The U.S. Attorney Lewis ignored the ruling raided the tribe’s casino. The East Shawnee and the government came to a settlement dismissing the charges and returning all seized funds (p.10).
In 1996, the NIGC chairman decided that the “..electronically broadcasted bingo game…” MegaMania was a Class II game (p.10). Then in 1997, the DOJ and Oklahoma tribal leaders met to discuss the limits of electronic bingo games while the NIGC concurrently expanded the list of electronically assisted games that fell within the Class III category (p.10-11). Lewis ignored this decision and organized a raid on casinos owned by the Seneca-Cayug and Cherokee Nation. Lewis also went so far as to pursue a case against MegaMania devices used at tribal establishments in California (p.11). Resulting in United States v. 103 Electronic Gaming Devices, No. 98-1984-CRB, 1998 WL 827586 at *10 (N.D. Cal. 1998). The Ninth Circuit threw Lewis’s case out citing that the interconnected terminals were an aide and therefore was Johnson Act compliant. After several years of appellate courts finding that IGRA permits Class II games to utilize electron aides, NIGC made the 2002 amendment to IGRA formally codifying this conclusion (p.12).
The Obvious Prisoner’s Dilemma:
The long and drawn-out battle over the classification of tribal-hosted electronic-aided bingo games is a clear example of how the interests of bureaucratic agencies do not always align. Bureaus function under the auspices of the same department, compete for funding and institutional support. This situation demonstrates a scenario where orthogonal agencies are at odds; due to having diametrical incentives structures. The NIGC was intended to operate with constrained autonomy when IGRA was first enacted. But NIGC independence is significantly hampered by the shared regulatory responsibility dispersed between the agency, the Department of the Interior, and the DOJ (p.305-306). As is evident from the previously described struggles for tribes in Oklahoma, the relationship between the NIGC and the DOJ is contentious.
A Prisoner’s Dilemma exists because the DOJ exists to offensively combat illegal activities associated with improper operation of gaming facilities (p.323). Simultaneously, NIGC solely exists to provide an on-ramp for tribes to seek liberalization of gaming for economic development (p.323-324). Neither of the incentives structures is compatible; this can explain the ample examples of defection on the part of both parties. The NIGC actively helps the tribes by expanding the number of games utilizing electronic aides regulated as Class II (fewer legal hurdles). In contrast, the DOJ enforces the gaming laws, even if that means taking overly broad or narrow interpretations of the current statutory code. Both government entities could have coordinated mutual compromises versus adversarial strategies for managing tribal gaming regulations. This lack of consensus generated a multilayered cat-and-mouse game between the NIGC/tribes and the DOJ.
The Distal Prisoner’s Dilemma:
The less conspicuous Prisoner’s Dilemma is an intertemporal one involving one set of congressional representatives versus another. The Johnson Act and IGRA are incompatible pieces of legislation that generate intricate policy conflicts (p.315-318). Since the two laws are incongruent, IGRA is a defection from the previous Johnson Act. In IGRA, it is implied before the 2002 amendments that the electronic aides were exempt; it was not clear enough to dispel any controversy. Either clarification of the exemption in the original law or having it match more closely to the criteria of the Johnson Act would have been a “cooperative strategy”.
A Distal Prisoner’s Dilemma is an indirect mutual defection that engenders poor outcomes. The defections are generally temporally stratified and are not an instantaneously implemented noncooperative strategy. Either through congress’s ignorance of the law or zealotry to regulate tribal gaming, they are working against their own previously established legislation.
Op-Ed submission was rejected by the Foundation For Economic Education for being too “abstract” and “academic”. The corresponding paper proposal for George Mason was also rejected. I am currently working on another proposal for GMU focused on intellectual property.
Bruce Yandle’s Bootlegger and Baptist (1983) theory of regulation presents a practical explanation for why such unorthodox coalitions are effective vehicles for camouflaging rent-seeking behavior by a firm. In brief, armed with the public appeal of the moral arguments posited by the Baptists, the Bootleggers can quietly lurk in the shadows, funding initiatives that will advance their self-interest. In other words, the ethical advocates create a smokescreen that provides cover for the business interests, superficially obscuring the stigma of corporate advocacy, since few examples of political action invoke the ire of the average citizen than policy campaigns that line the pockets of big business.
The trend of “woke capitalism”, however, is bringing the Bootleggers out of shadows and into plain sight. CEOs are now openly standing in unison with political activists, speaking out against topics ranging from police brutality to environmental issues. The Bootleggers can work openly with the Baptists to promote a positive image while still silently providing monetary support in the background. Moreover, the social justice messaging of “Woke Capitalism” extends beyond corporate activism and is observable in the product market and advertising. Some companies, for example, adopt marketing that emphasizes social consciousness to secure the business of Gen-Z. A clear example is Gillette’s 2019 advertising campaign addressing “toxic masculinity”. Typically, companies use this tactic to target younger consumers with higher preferences for ethical products and brand authenticity, requiring companies to go beyond philanthropy and mandating community services hours for their employees; their woke ethics are thereby conveyed in their branding.
The Four Main Categories of Woke Capitalistic Coalitions:
The most recent alliances forged between business interests and political activists take the form of four main taxonomical categories. Some of the various types of Bootlegger and Baptist coalitions feature collaboration between firms and activists. Other coalition types form within the technocratic structure of the corporation or emerge between different departments within the organization. Woke coalitions thus have several notable classifications of “woke” corporate alliances. Two further subcategories include proactive and reactive forms of rent-seeking.
Reactive Coalition Models:
The reactive models for “woke” coalitions include two subtypes of collective action organization, the interaction between external actors and collaboration between internal employees. The first variety of reactive coalitions are rent-seeking alliances formed to restore the company from a sullied reputation caused by criticism, the objective being to mitigate the loss of sales and reputation amid public controversy. Some firms thus attempt to distance themselves from the controversy through their activistic partnerships. By way of example, Bank of America in the past was accused of engaging in “discriminatory” lending practices. To counteract this negative publicity, last year BOA pledged to donate $1 Billion over the next four years to community programs to address economic and racial inequality. Such an act of philanthropy can easily make the general public forget about the firm’s past indiscretions.
The second type of reactive “woke” coalitions are the intracompany factions designed to divert attention from potentially costly internal controversies. In instances of hostile work environment ligation, the legal team, the human resources department, and executive management band together to deescalate the publicity nightmare. Human Resources and management work together to legally distance the company from a harassment incident and shield executive management from more scrutiny and accountability. Legal navigates the statutory and tort concerns and works internally to establish an anti-harassment campaign intracompany. A prime example of an internal diversionary coalition was Vice media’s response to sexual harassment claims. After settling several cases, the company decided to form an advisory board to educate employees on diversity and proper workplace deportment. Even if such an initiative on the part of the human resources department failed to soften the bad publicity, at least it may decrease the probability of another incident.
Reactive Coalition Models:
Finally, the last two variants of “woke” coalitions aligning business interests with moral advocates to facilitate proactive forms of rent-seeking. Similarly, these proactive coalitions can be delineated into examples of internal and external collaboration models. Proactive partnerships form to capture potential gains and avert the costs of prospective controversies. The most salient example of such external cooperation would be firms standing behind a woke cause, anticipating that such an alliance will obscure the firm attempting to shape current regulation (regulatory capture). A notable example was detailed in the Fall 2021 issue of Regulation magazine, which showed how providers of cloud computing services IBM and Oracle joined forces in 2017 to advocate for the passage of the Stop Enabling Sex Traffickers Act (SESTA) and the Fight Online Sex Trafficking Act (FOSTA); effectively becoming bedfellows with various factions of human rights activists. Both laws intended to attribute liability to digit platforms for any user content that promotes sex trafficking. The article’s author Thomas A. Lambert speculates that IBM and Oracle could have done this with the hopes crafting potential exceptions to the platform liability portions of SESTA and FOSTA.
Additionally, we cannot forget the proactive inter-department coalitions that are emerging within corporations. For example, several companies are hiring diversity and inclusion “coaches” as a peripheral subset of human resources. The demand for this job role has become so prevalent that a number of colleges offer programs to become a certified “diversity practitioner”. The human resources department defends the existence of these staff members by emphasizing the need to educate employees to avoid instances of harassment and discrimination. The diversity coaches preach the virtues of cultural sensitivity and other tenants of the “woke” philosophy, thus producing a self-reinforcing spiral justifying further diversity initiatives.
Superficially, these alliances between big business and “woke” activists seem relatively benign, but in reality, these coalitions have profound consequences for the integrity of capitalism and the rule of law. The four types of woke B&B coalitions described above undermine capitalism and the rule of law because woke capitalism has made it easier than ever for business interests to create the façade of morality but are unjustly bending the rules-of-the game in their favor. Wokeism provides the veil obscuring corporate America’s hand in the legislative till. Generating more anti-competitive laws that undermine both the rule of law and free trade.
The emphasis on firms getting involved with “woke” causes not only disguises crony capitalism and rent-seeking behavior, but also distracts companies from their primary custodial duty to their shareholders. As Nobel laureate Milton Friedman expresses in his own Friedman Doctrine , a firm has a duty to maximize its profits for its shareholders. After all, these individuals have invested in the company expecting a higher return. Without this financial support the firm could not achieve its current level of success. Diverting funds that could be used for investment in capital to increase productive efficiency for political activism is tantamount to theft.
The Arizona Supreme Court has finally settled the controversy regarding the legality of setting uniform rates for consolidated water districts in the October 2021 ruling Sun City Home Owners Ass’n v. Arizona Corp. Commission. The Sun City HOA claimed that the setting of uniform rate was an act of discriminatory pricing, violating Article 15, Section 12 of the Arizona Constitution. After being compared to the other communities serviced by EPCOR for municipal water services, Sun City has historically had some of the lowest operational costs. Most municipalities experienced a decrease in rates, while Sun City was the exception. The increase in the price of water service offsetting the cost to other communities functions as cross-subsidy.
The state Supreme Court did not rule in favor of the HOA, but there are further ethical and economic concerns to evaluate. For one, the rate-setting power conferred by the state Constitution (Article 15, Section 3) to the ACC mirrors the congressionally allotted privilege of chevron deference at the federal level. This judicial doctrine does differ from the powers allocated in the Arizona Constitution; chevron provides judicial power to bureaucratic agencies; in contrast, the state permits quasi-legislative authority, a rule-making power that is inappropriate for a bureaucratic agency to wield. Hence why we have a legislature. Economic exchange determines prices (the law of supply and demand) and not the edicts of lawmakers or bureaucratic agencies. Town governments and EPCOR need to negotiate the rates, not state agencies.
Most legally mandated suicide prevention measures fixate on its impact on society. An individual assuming an externalities defense of the involuntary hospitalization of those with suicidal tendencies falls prey to a fallacy that all prohibitions of vices are subject to operating as a preemptive measure. Prompting the question, what is the committed offense outside of the state statutory code? What most Libertarians would refer to as victimless crimes. Enforcement of victimless crimes does not remedy the loss of property or harm to any non-consenting third parties. Rather, such laws have the unfortunate propensity of conflating potential consequences with actual damage done. Most arguments for maintaining the federal ban on illicit drugs emphasize prospective ramifications versus actual outcomes. Even drunk driving laws fail to meet the criteria for a violation of our private property rights. Operating a motor vehicle while intoxicated only increases the odds of bodily harm and destruction of property, but it does not guarantee this consequence.
US civil law no longer recognizes personal suicide attempts as a criminal offense. However, the criminality of physician-assisted suicide varies radically by state. Suicide is no longer a crime. Suicide prevention laws are completely constructionist inventions. More importantly, it also fails to fulfill the criterion for violating another person’s natural rights. Arizona has an involuntary commitment law codified under Title 36 of Arizona Revised Statutes. If there is no crime committed, can detention be perceived as lawful?
Such fits the definition legally sanctioned form of kidnapping. The basis of the logic of the Fourth and Fourteenth Amendments provides fodder. If it were not for Title 36, it would be considered unlawful confinement. The only rational inference is that these mandates are the illegitimate byproduct of legal positivism. The standpoint drove by a “moral” concern for potential externalities. Codifying morality is never a justifiable reason for exercising the authority of governing institutions!
The headlines in the news have been animated by the controversial Texas law, SB 8; colloquially known as the Heartbeat Bill. The legislation boasts several stringent limitations on abortions that operate analogously to a de facto ban. However, the most shocking aspect of the bill is that it allows private citizens to sue facilities that have performed abortions for $10,000 or more per procedure. This feature of the law indirectly deputizes the residents of Texas and has the potential to lead to some unforeseen consequences. At its core, the Heartbeat Bill is a legal manifestation of the partisan tug-of-war in the abortion debate. While Pro-Life advocates may believe they have won this round, little do they realize Texas now has a Prisoner’s Dilemma on its hands. The blowback from this contentious  the legislation will impose economic costs on the state of Texas.
It is worth noting that only a minuscule number of the citizenry in Texas has had an abortion. Per the Guttmacher Institute, in 2017, only 55,440 Texas residents had abortions performed. This figure is meager when compared to the total of all adult female Texans. Also, most voters are conservative. How could this move be detrimental to the entire state of Texas? The state only has a few liberal oases (West Texas & Austin); the overall impact of citizens moving to more progressive jurisdictions would only have a marginal effect on tax revenue. Perversely, this might have a disparate effect, leaving left-leaning municipalities such as Austin with a significant loss in local tax revenue.
Texas having lower taxes and an affordable cost of living has resulted in population growth in recent years. Population growth and economic growth are correlated. Most of the Texas transplants are not coming from conservative-leaning states, but liberal high tax states such as California and New York. Arizona is another state currently experiencing a large diaspora of Americans migrating from high-tax states. Epitomized in the slogan “.. Don’t California, My Arizona..”. What happens when the conservative values of a low tax state become too off-putting for prospective residents? Not only hampers the economy through decreased tax revenue, but it hampers economic development in other ways. Left-leaning Tech Companies may enjoy the corporate tax rate of Texas. What happens when companies start choosing to avoid setting up offices in Texas for ethical reasons? More companies may opt to establish a campus in Phoenix instead of Austin. Causing an unfortunate ripple effect through the entire state economy. The Pro-Life camp is not doing themselves any favors by not striking a political middle ground. Progressives are only shooting themselves in the foot by avoiding Texas because of the Heartbeat Bill.
1.) This brief essay is in no way a commentary on the morality of abortion. Any such normative arguments would only detract from a game-theoretical assessment of the situation described.
Published by The Casa Grande Dispatch (Pinal Central): Click here
Editor, Casa Grande Dispatch:
There has been a lot of debate over vaccine mandates in the wake of the COVID-19 pandemic. Most arguments revolve around the science of vaccines or the ethical concerns of state-sanctioned requirements. However, are such policy prescriptions even legal? Much of the justification based in past case law depends upon which level of government is issuing the mandate. Several Supreme Court rulings from the early half of the 20th century validate the legality of state and local (Jacobson v. Massachusetts and Zucht v. King) immunization requirements. What about at the federal level? The Biden administration’s proposal seeks to implement a nationwide vaccine mandate. Arizona and 23 other states are rightfully challenging this encroachment upon states’ rights.
Past case law does not justify top-down mandates from the federal government. Limiting the defense of a national vaccine requirement to using circuitous channels, President Biden directed OSHA to establish a vaccination requirement for employers with 100 or more employees. The president relies on the authority conferred to the agency, under Section 6 of the OSH Act, endowing OSHA with the ability to promulgate occupational regulations. Judging by the amount of opposition to this emergency measure by state governments, the president initiated a bureaucratic cold war, fought in the courts. COVID-19 has been devastating to the entire county, but ultimately measures to combat the virus should be left to the states — a statement validated by past case precedence; a maxim guiding the core legal arguments of the litigating states.
The Lockean conception of shelf-ownership does not work if we cannot alienate self-hood. In the context of involuntary slavery, our absolute right (p.10) to self-possession is relinquished through coercive force . The notion of natural rights almost always implies that the individual owns. For instance, the right of free speech codified under the First Amendment of the Constitution implies self-ownership. Individuals embroiled in political debate must utilize the very bodies they own and utilize scarce resources (p.2)to engage in the passionate exchange. There is one glaring flaw that most ethical theorists get dead wrong about natural rights. Our negative rights that are part-and-parcel with our personhood may be self-evident, but they are certainly not inalienable. The American Declaration of Independence echoes this sentiment and forever cements it in the public consciousness:
We hold these truths to be self-evident, that all men are created equal, that they are endowed by their Creator with certain unalienable Rights, that among these are Life, Liberty, and the pursuit of Happiness.
The claim that these rights are unalienable does not connote ownership of these rights in any meaningful sense. By the inseparable nature of self-ownership and natural rights, we do not truly have unfettered possession of ourselves. The ability to alienate something is that can only be the consequence of ownership. True ownership implies that an individual can transfer, maintain, sell, deface, lease, destroy, etc. the article in question as they see fit. One of the strongest arguments for this radical interpretation of ownership comes from economist and Libertarian theorist Walter Block. Dr. Block writing “..No law should be enacted prohibiting or even limiting in any way people’s rights to alienate those things they own. This is “full monte” alienability, or commodification…” (p. 6) . Block surmises that an unlimited condition of ownership naturally extends to the person, meaning that if an individual chooses to sell themselves into slavery this is legitimate. Unlike the trans-Atlantic slave trade, the individual being sold is consenting to the arrangement .
However, most, and moral theorists would suggest that natural rights, especially selfhood cannot be alienated or dispensed with. As our mind and body are typically inseparable; neither can be reallocated nor disposed of. This supposition suffers from an unfortunate fallacy because a person can voluntarily absolve their will and sentience. In the most extreme case, a person could give themselves a lobotomy effectively alienating their will and severing their mind from their corporal body (p.8) .
There are less extreme examples of people abstractly selling off natural rights in exchange for material gain. One only needs to look to employment contracts to see a ubiquitous example of this selective selling of rights. It is common for employers to include social media policies as a condition of employment. Effectively acting as a voluntarily acknowledged limit on free expression; a right codified under the First Amendment. Regardless of whether this restriction is a temporary sale of this right or permanent alienation it is a legitimate exchange. From the standpoint of Rothbardian contract law, this arrangement fulfills the criteria for an enforceable contract. Under this theory of contract law, the property must be exchanged for the contract to be binding, any other agreement is a mere promise (p.133-135). At the core of an employment contract or conditions of employment, the property is being exchanged. The employer is transferring compensation (monetary and additional benefits) to the employee. This exchange is contingent upon the employee following the company’s internal policies. Indirectly operating as a form of selling or “renting” natural rights in exchange for employment.
Selling property is merely one means of alienating property. Other more drastic measures can achieve this same outcome. The concept that an individual can condemn their property, mirroring the same privilege current held by various tiers of the U.S. government. The only difference is that when the state does it, they do so without the consent of the owner. Even when eminent domain is practiced within the parameters of the takings clause, however, the property owner generally does not have the right to refuse to surrender their property. Regardless of whether they are justly compensated for the relinquishment of their business, land, or home this arrangement is still inherently coercive. In stark contrast, if a property owner dedicates to transfer or otherwise condemn the land they own, this is legitimate. Effectively, suicide is an example of a person opting to condemn themselves. A person choosing to forever dispose of themselves permanently disables their ability to contribute to society; mimicking how governing institutions can decree that land or a build is no longer fit for occupation or commercial use. The state typically initiates such a directive in the context of habitation or use of the property would pose a “safety hazard”. However, a person contemplating “condemning” themselves does not need to fabricate such vague excuses. If they truly own their own body and mind, they do not have to provide any justification for performing such action. Unlike eminent domain, the individual can consent to the decision they have made.
Most people might argue that allowing others to commit suicide with no mandated intervention would squander human lives . Further supporting this statement by repeating tired platitudes about how it is a permanent solution to a temporary problem. No doubt, suicide does come with a wide array of societal costs. The individual can never be replaced nor can their human capital because no two people have the same experiences. If we set aside the externalities of the act, there’s a deeper conflict at play. There’s a long tradition of property owners having the right to destroy what they own. The right to destroy one’s property has its roots in the doctrines of Roman and English Common law (p.8). Moreover, there is a long-standing tradition that arguably supersedes the concerns of modern environmentalists or other public interest initiatives. The concern for wasting resources was even voiced by John Locke back in the seventeenth century:
The same law of nature, which does by this means give us property, does also bound that property. God has given us all things richly, 1 Tim. vi. 12. is the voice of reason confirmed by inspiration. But how far has he given it to us? To enjoy. As much as anyone can make use of to any advantage of life before it spoils, so much he may by his Tabour fix a property in whatever is beyond this, is more than his share, and belongs to others. Nothing was made by God for man to spoil or destroy. (p.12).
While Locke provides us with prudent advice regarding resource management, it is nevertheless, a suggestion. A just legal system would defend the property owners’ right to dispose of their property how they choose, even if it is considered wasteful. A legal system that has penalties or restrictions impeding the right to destroy one’s property, provides a perverted form of justice. Much like anything else a person owns, they should be able to “destroy” themselves. In a sense, we legally permit other more protracted forms of incremental suicide. For instance, currently, no laws are prohibiting the sale or consumption of sugar-saturated and chemical ladened soft drinks. Although cigarettes are highly taxed and regulated, we still live in a society where smoking is still legally tolerated. Both soda and cigarettes slowly kill the person ingesting either product; despite this fact, these products should remain legal. Following this same logic, if the person should be able to choose what they put into their body, they can choose to also ultimately dispose of their body.
. The account of Slavery in Locke’s Second Treatise of Government (1690).
. The idea of wasting human life can be applied in an economic sense. The decreasing fertility rates in the Western world present challenges to the labor force and the tax pool. Especially, after all the Baby-boomers die.
Here is a hypothetical situation that presents us with a challenging conundrum that would drive most legal scholars and moral philosophers mad. There is as a person in a vegetive state who is hooked up to a variety of life-sustaining medical equipment (feeding-tube, ventilator etc.). Let’s say that the individual is married, and their spouse has been their legal guardian since they have become clinically brain dead. Does the parents of the incapacitated person have a say over the end-of-life decision making for their child? Should this heavy burden be left to the spouse and rightful guardian? It should be noted that the moral analysis must be separated from the determination of legality. All because something is legal does not necessarily make it moral. For instance, abortion in the United States is sanctioned around quasi-arbitrary timeframes with little consideration for situational context or biological development of the fetus. The decree of legislative fiat does not automatically make a policy moral. There are many legal protections within American statutory law that prevent individuals from facing criminal penalty or ligation. If crimes against persons and property cannot be subjected to restorative justice then there is no point in calling a legal system just. In other words, we will be reviewing this situation from a philosophical standpoint, specifically from the perspective of individual property rights.
The above scenario is not quite so hypothetical but is a concise description of the Terri Schiavo case. However, one striking difference between the scenario presented above and the Schiavo case is that :
Terri Schiavo breathes on her own. She is not on a ventilator or respirator. Although she swallows, she is sustained through a gastric feeding tube. She is not in distress or imminent danger of death.(P.5).
Despite Schiavo’s lack of cognitive functionality for the most part she was able to “live” in the most basic sense of the term. It should also be note that prior to her cognitive impairment she made no will directing her “wishes” for medical treatment. Also including end-of-life decisions. Therefore, leaving the variable of individual consent obscured by Schiavo’s incapacitated state. There was a rift between Schiavo’s husband/ guardian wanted to remove her feeding tube while her parents staunchly disagreed with this decision. Ultimately, the courts sided with the husband and Terri ended up dying after having her feeding tube removed. This may have been the legally permitted course of events, but was it moral from the paradigm of individual property rights?
The economist and Libertarian Philosopher Walter Block provides a remedy to this quandary squarely from the standpoint of Lockean property rights. A grown adult who has lost their cognitive faculties is analogous to a child and exist in purgatorial grey area when it comes to the prospect of Lockean ownership (p.5).Block takes the Rothbardian approach to addressing a parents required commitment to child rearing, which in fact allows parents to relinquish this right (p. 6). Much like how Lockean homesteading does not preclude an economic agent from taking ownership of an abandoned patch of land, this analogy can be applied to raising children. If an adult within the community is willing to devout the resources to raising a child discarded in dumpster, this should count as a transfer of guardianship (p.7). Based upon the premise of Lockean homesteading the Supreme Court of Florida was morally wrong in assigning the right to end Terri Schiavo’s life to her husband. Through wanting to end her life with no prior record or request of her wanting such measures taken, he effectively relinquished his guardianship. Clearly he did not do so in the modern legal sense, but he did so within the context of Lockean property rights. If her parents were willing to assume guardianship of their daughter then the court’s decision is nothing more than perverse.
And if they are, then whoever is at first control of her must maintain her; if he refuses, her guardianship reverts to the second closest party, her parents. If they will not homestead her, then perhaps her siblings. If not them, then anyone who wishes to take up this burden. Based on the number of protests at the callous way she is being treated ( Block, 2011, p.7)
There is a battle brewing in Arizona. The municipal government of Tucson is looking to enact gun control ordinances that are contrary to Arizona state law. The city passed a resolution requiring federal gun laws to be followed within Tucson’s city limits. From a superficial standpoint, this does not sound so radical. As any careful observer of the Arizona political scene can tell you this outright rebellion. Arizona has always been a very 2nd Amendment friendlily state. Back in April, Governor Doug Ducey signed HB 2111. The bill prevents any institutions from utilizing state resources or promulgating rules that violate state gun laws.
“…Specifies that pursuant to the sovereign authority of this state and Article II, Section 3, Constitution of Arizona, the state of Arizona and its political subdivisions are prohibited from utilizing any financial resources or state personnel to administer, cooperate with or enforce any law, act, order, rule, treaty or regulation of the federal government that is inconsistent with any law of this state regarding the regulation of firearms…” (HB 2111).
Many outside spectators may view this measure by Arizona lawmakers a superfluous or even paranoid. Objectively, there has been a precipitous erosion of gun rights over the decades. Generally resulting from a tightening of federal gun regulations. One only needs to look towards the Brady Handgun Violence Prevention Act (1994) and subsequent laws to see this pattern emerging. Although, most gun enthusiasts would most likely reason that this pattern emerged before 1994. However, this legislative game of red rover isn’t an illusion caused by the slippery-slope fallacy. It is also important to not frame the legislative encroachment of the 2nd Amendment as devolving into a frenzied conspiracy climaxing to a dystopian gun grab campaign.
Arizona lawmakers not being quite so sanguine about the Biden administration’s respect for gun rights is understandable. Especially when you consider his platform regarding gun safety, which seeks to impose more restrictions. It is well known that the City of Tucson has been at odds with state gun laws for a while, being an uncharacteristically left-wing city in a conservative state. The state legislator fearing that Biden would tighten up federal gun regulations they drafted HB 2111, effectively making Arizona a “2nd Amendment Haven”. The state of Arizona is not alone in drafting us preemptive measures as several other states have drafted similar bills.
The officials of the City of Tucson have stated that if the state government intervened they would take it up with the federal courts.
“….Steve Kozachik, the councilman who introduced the resolution last month, said he believes the state’s sanctuary law to be unconstitutional.
Insinuating that under the Supremacy Clause of the U.S. Constitution the city would have the higher ground from a legal standpoint. Because the Supremacy Clause states that federal law supersedes state law. Even the causal jurist knows that U.S. Law is complex and riddled with a plethora of loopholes. Holding such an axiom as unwavering is at best an overly simplistic interpretation of the law. It should be noted that the Supremacy Clause was intended to apply to the promulgation of laws in the scope of congress’s enumerated powers. After re-reading Article I, Section 8 several times, I simply could not find a sentence, never mind a paragraph conferring the power of formulating gun control laws to the federal government! Nevertheless, when Tucson petitions their complaint to the SCOTUS it will make for an entertaining case, to say the least.
It is important to remember that the state government does have a very compelling bargaining chip for negotiations. That is state tax dollars. The city of Tucson does receive a portion of tax revenue from the state (like most municipalities do), the state of Arizona could very well withhold these funds as a condition of noncompliance. It is estimated by going rogue on the gun issue, the city stands to lose “… half of its state shared revenue..”. The conflict here is the typical example of conflicting political interests at various layers of the political hierarchy. Mirroring the conflicts between the federal and state governments. Because both factions have divergent interests, rather than compromise both groups prefer fighting to the bitter death. Gun control like most wedge issues has a winner-take-all payoff. Primarily due to political polarization. However, losing ground policy-wise does turn into a slippery slope quickly. Incrementally evolving into long-term losses.
Since the incentives structure is skewed towards winner-take-all payoffs, neither party can trust the other in the event of a compromise. Completely dispensing with any good faith bargaining; leaving logrolling off the table. This lack of good faith between the state government and the city of Tucson creates fertile ground for a Prisoner’s Dilemma. A Prisoner’s Dilemma is a concept in game theory where individuals working together could produce better results than working against one another. In certain situations, if both parties lack trust, they will defect and work against the other individual. Paradoxically, both actors would be better off if they worked in unison. If both Tucson and the state government brokered a deal with some carefully considered concessions, everyone would be happier. Instead, they both would rather hardball a gluttonous attempt to have all of their policy preferences fulfilled. Does nothing more than waste resources and generate more drama.
Arguably there are few methods of aggregating data that are as effective as using Prediction Markets. Prediction Markets are exchanged markets where speculators purchase “… that yield payment based on the outcome of uncertain events..” (p.877). One of the biggest misconceptions regarding this method of forming consensus on the accuracy of future events is that experts will be supplanted by amateurs. However, this concern is unfounded because of the knowledge necessary to succeed in such a speculative market. The experts would tend to dominate these markets (p.85). Separating Prediction Markets from gambling in a legal context. Dumb luck is not rewarded, but the diligent and concentrated study is. The legal lecture identifies gambling as having an element of chance (p.102). The intention of opening the trading pool to laypeople is not to give them to trade based on arbitrary “hunches”. Rather, to supplement the data pool by contributing the “on-the-ground” information absent in academic analysis (p.82).
Even though the work of legal scholar Tom W. Bell (p.102-104) demonstrates that Prediction Markets are distinct from games of chance. If a Prediction market is poorly designed, it has the potential to be subjected to anti-gambling laws (p.419). Although Prediction markets reflect the features of a decentralized form of “consulting “services than a sports betting pool (p.419). Many privately hosted sports beating pools escape prosecution due to their discrete manner. Even an in-house prediction market hosted by a corporation may raise the attention of prosecutors (p.102). It should be noted that prediction markets also face potentially regulated by the SEC and CTFC. Unfortunately, placing great barriers to entry for institutions looking to host such data aggregation markets. Prediction markets are being stifled by massive layers of red tape.
Although, it is possible under certain circumstances to be granted exemptions by regulatory agencies.
For example, one of the best-known legal prediction markets in the United States is the Iowa Electronic Markets (IEM). In the early 1990s, the CTFC issued two no action letters granting the IEM immunity from the commission’s regulatory authority (p.25). Essentially, all federal agencies are immune from anti-gambling laws (p.419). A fact confirmed by Robin Hanson by describing the immunity enjoyed by the DARPA’s PAM project (p.77). Why not grant regulatory exemptions to all purposed prediction markets? Certainly, a novel solution. There are those voicing moral concerns and those who can prosper from prediction markets remaining heavily regulated. Presenting the classic features of any Bootlegger and Baptists coalition (1983).
One of the most evident examples of a Baptist would have to be the regulators. Despite the numerous examples of employees of regulator agencies engaging in rent-seeking and other pursuits of aggrandizement, there is still a concern for the rules being enforced. This does not mean that the rules are necessarily rational or even moral, but there is an ethical commitment to duty. Unfettered access to trading or gambling markets can result in adverse consequences for participants and the economy. If prediction markets were erroneously designed, they could operate similarly to securities and futures markets. Making prediction markets susceptible to dishonest practices such as insider trading leading to disparate effects for less privileged participants. Also, keeping prediction markets within the bounds of gaming regulations could help reduce the externalities of problematic gambling. In most jurisdictions domestically, as a condition of being granted a gaming license establishments are required to have their staff trained on awareness programs. Even requiring signage offering resources for those suffering from gambling addiction to seek treatment. If prediction markets are in theory like other forms of gambling, it could be a welcomed substitute for individuals with gambling problems. Casinos are often encouraged by state governments to implement exclusion programs for problematic patrons. The trading of cryptocurrencies, precious metals, stocks, etc. is free from the reach of gaming regulations. Potentially providing problem gamblers with a slightly different type of impulsive thrill. Prediction markets could fall into this category even if they are regulated as securities or futures commodities. If prediction markets lack age restrictions barring minors from participating. It may operate as a backdoor form of underage gambling.
Casinos, lotteries, bingo-halls, dog/horse tracks, and other gaming venues either online or brick-and-mortar. None of these establishments are going to take the time to research whether prediction markets are the same as gambling. Perceiving prediction markets as an alternative to gambling with potentially fewer regulations. Incentivizing vendors providing gambling services to favor any restrictions that can be placed on this potential competing form of “entertainment”. Prediction markets are a hyper-competitive form of consulting service.
Foreign-based prediction markets. Overseas prediction markets in countries such as Ireland provide real monetary compensation to users with leading regulatory interference (p.414). If America’s regulatory system became more friendly towards prediction markets, these existing prediction markets would lose participants.
Experts and professional consulting firms. Prediction markets place professional consulting firms and other subcategories of experts in direct competition with other participants. Consequently, disrupting the current status-quo of the consulting services market. Traditionally, a firm will hire a firm, freelancer, or agent of a firm to provide consulting services. Irrespective of whether the consultant is providing flawed advice, they still receive their whole salary. This is analogous to paying full price for a defective product. Even in the service industry patrons receive refunds for a lousy meal. Prediction markets resolve this issue by rewarding the consultants providing correct information. The hosting institution benefits from receiving a large pool of data for a low cost. This practice is more cost-effective than purchasing traditional consulting services. However, concurrently threatening the bottom line of consultants operating within the framework of the original model.
Over the past couple of years, it seems as if the Fourth Amendment has been under attack. The headlines featuring stories of no-knock raids and other invasive search tactics used by the police. Despite the specter of an expansive police state looming above his, there is a silver lining. There have been some minor victories. One shining example was the Supreme Court ruling inCarpenter V. United States. In which, the high court ruled that conducting warrantless seizures of phone records to be unconstitutional. Another recent example of the court ruling in favor of the Fourth was Caniglia V. Strom.
In Caniglia, the court rejects the First Circuit’s expansive interpretation of the Community Care Taking Doctrine. Caniglia had been quarreling with his wife pulled out a pistol and asked her to put him “out of his misery”. Mrs. Caniglia decided to spend the night in a hotel to allow her husband to calm down. After not hearing from Edward, she called Cranston police to conduct a welfare check on him. Responding officers reported that Mr. Caniglia seems to be stable. He consented to be evaluated at a psychiatric hospital providing police did not confiscate his firearms. Police later came by the home to remove the guns. Officers informed Mrs. Caniglia that Edward had consented to his firearms being seized. After several failed attempts to recover his guns, Caniglia sued under Section 1983. The First Circuit ruled that the actions of the officers were permissible under the Community Care Taking Doctrine. This decision would subsequently be overruled by the Supreme Court.
Community Care Taking Doctrine
Before reviewing the SCOTUS decision there is still one question that remains. What is the Community Care Taking Doctrine? It is the legal doctrine that enables warrantless searches and entry for noncriminal policing functions. Actions that promote the general interest of the community. This legal construct was devised in the early 1970s because of the Cady V. Dombrowski decision. The petitioner, a Chicago police officer, had been involved in a drunk driving accident. His service revolver had been left in the vehicle. The court viewed this action on the part of the local police department to be legitimate. Recovering the weapon would protect the public from it “… falling into the wrong hands”. Epitomizing the logic of the doctrine in one single case.
Justice Thomas in his written opinion sums up the major flaws of extending the Community Care Taking exception to Caniglia. A case that has the rare distinction of being a unanimous court decision. In a nutshell, his concerns included the lack of justification in previous case law and the constitutional distinction between the home and vehicles. Making the claims that the police acted within the scope of the doctrine questionable.
Lack of Legal Justification
Justice Thomas direct states in his opinion that the First Circuit’s interpretation “… goes beyond anything this Court has recognized.”. The presumption being that generally, home searches require a warrant. By Thomas’s assessment, the lower court applied this doctrine merely because the nature of the search was noncriminal. The conditions of a search being permissible under the doctrine must be for purposes outside of a criminal investigation. The logic in Cady was specific to impounded vehicles already in police custody. It is reasonable to permit officers to assist motorists in trouble on the roadways. However, this privilege allotted to facilitate officers in completing their civic duties should not be viewed as an “… open-ended license..”.
Thomas holding the Care Taking Function to the parameters of Cady establishes effective limits on the doctrine. Favoring the First Circuit’s decision would only further erode the Fourth Amendment. Why? Since our legal system is influenced by English Common Law, past case precedence directs future court decisions. If there was a case history justifying an expansive interpretation of the doctrine, the logic would have to be continued in subsequent cases. Only further eroding our Constitutionally held right to privacy and baseless searches.
The Constitutional Difference between the Cars and Homes
From the perspective of the Fourth Amendment, there is a difference between the right of privacy in the home and one’s vehicle. This was a point held by Justice Thomas. He expresses in his opinion that the core of the Fourth Amendment was that a person could retreat to their home free of any undue inference from the government; Citing Florida v. Jardine. A major caveat being the instance of exigent circumstances. A point of argument the First Circuit failed to establish, considering if Mr. Caniglia was a threat himself, action would be necessary immediately. Not hours after the fact. Leading Justice Thomas to state “…First Circuit… goes beyond anything this Court has recognized..”. Because the officers lack both a warrant and consent of the owner and effectively violated the sanctity of his home.
The Community Care Taking Doctrine has traditionally been applied to vehicles. In the corpus of case law, there has always been a different expectation of privacy in the home. Carroll V. United States, one of the first SCOTUS cases to address automobile searches found that the mobile nature of cars made warrantless searches crucial. However, a house is a stationary private property. Outside of the scope of extenuating circumstances or a warrant in hand, police entering the home is a civil rights violation. The officers who seized Mr. Caniglia’s guns were out-of-line.
Over the past couple of years, it appears as if the Fourth Amendment has been under attack. However, despite the headlines being flooded with stories of no-knock warrantless entries ending in tragedy, there still have been some minor victories. One shining example was the Supreme Court ruling in Carpenter V. United States (2018). In which, the high court ruled that conducting warrantless seizures of phone records and tracking the location of cellphone users be unconstitutional. Back in May, the Supreme Court once again did the Fourth Amendment justice in its decision in Caniglia V. Strom (2021). In its ruling, the court implemented effective judicial limits on the Community Caretaking Doctrine.
The SCOTUS held that this legal construct that has been traditionally applied to automobile searches did not extend to the home. Some legal experts such as Josh Blackman may have criticized the ruling for lacking any discussion of “originalism”. Regardless of the imperfect logic upholding this ruling it effectually upholds the sanctity of our homes. Reinforcing the notion that the home is still in fact our castle.
What Is The Community Care Taking Doctrine?
The Community Care Taking Doctrine was devised in the early 1970s as a result of the Cady v. Dombrowski (1973) case. The petitioner, a Chicago police officer, had been involved in a drunk driving accident and had left his service revolver in his vehicle. The court viewed this action on the part of the local police department to be legitimate. Recovering the weapon would protect the public from it “… falling into the wrong hands”. Operating within the public interest absent any intentions of criminal enforcement. While Cady may set the stage for warrantless searches for noncriminal purposes it never directly addresses the application to the home. The doctrine has over the years has been expanded to justice application to homes. One notable example being the United States v. Rohrig (1996), where police entry an unlocked home due to a noise complaint.
There is a long case history of warrantless searches of automobiles pre-dating the advent of the Community Care Taking Doctrine. Starting with Carroll v. the United States (1925) citing the mobile nature of cars necessitating the need for warrantless searches. The courts have also ruled in a subsequent case that there is a lower expectation of privacy in automobiles. Making cars distinct from houses in Fourth Amendment jurisprudence. In Caniglia, this distinct was used to curb the First Circuit Court of Appeals expansive interpretation of the doctrine. Justice Thomas even stated in his opinion that the First Circuit’s verdict “… goes beyond anything this Court has recognized…”.
The Facts of Caniglia v. Strom
The case stems from an argument between spouses Edward and Kim Caniglia. Mr. Caniglia became upset and brought out a pistol requesting his wife to shoot him. Mrs. Caniglia decided to spend the night in a hotel to allow her husband some time to calm down. The next morning not having heard back from Mr. Caniglia, Kim called the Cranston police to conduct a welfare check on him. Responding officers reported that Edward appeared to be stable and he consented to be sent to a psychiatric hospital for evaluation on the condition that his firearms were not confiscated. While hospitalized, the Cranston police came by his home to retrieve his firearms. Officers erroneously informed Mrs. Caniglia that Edward had consented to his firearms being seized. Upon release from the hospital, he made several failed attempts to reacquire his firearms. He then “… filed a lawsuit under Section 1983..” arguing that the confiscation of his guns violated his Second and Fourth Amendment rights. The First Circuit ruled that the officers’ actions were permissible under the Community Care Taking Doctrine.
Mr. Caniglia’s petition made its way up to the Supreme Court. As a result of the unanimous decision among all nine justices. The general message of the decision was that the First Circuit was out of line with its expansive interpretation of the doctrine. The First Circuit clinging to the reasoning that exigent circumstances justified the removal of the petitioner’s guns. Since the actions to protect the petitioner and any potential bystanders did not constitute “…the normal work of criminal investigation..” making this action a Community Care Taking function. However, the ruling held that the right to privacy in the home is Constitutional distinct, citing Florida v. Jardines (2013). The court finding this expansion of the doctrine to not be justifiable in previous case precedence.
Let the Caniglia decision be a ray of hope for all Fourth Amendment advocates. The Supreme Court took a firm stance against the reasonable expansion of a doctrine validating warrantless searches. The slow progress of policing reform may be disheartening. The advances in surveillance technology may be horrifying and often outpace the law. That does not mean the courts cannot formulate rules that are faithful to our Constitutional rights.
We frequently hear back about the erosion of our civil liberties. Often various pundits, bloggers, and even judges fervently debating the scope and applicability of our Constitutional rights. Even in an era of the expansive “police state” it is important to celebrate the small victories. Even gaining an inch is as good as gaining a mile. The outcry for policing reform over the past year (since the murder of George Floyd) has reanimated the civil liberties debate. Unfortunately, someone had to be martyred to shift the public discourse in the correct direction.
Considering this renewed public consciousness of civil rights, crucial that we hold public officials accountable. This has been observable by the recent reforms regarding Qualified Immunity at the state level. Accountability isn’t limited to just immunities and privileges granted to government employees, but also to how our laws are enforced. Anyone serving on the behalf of the public should perform their job function in a manner that is faithful to our Bill of Rights. Not execute their job functions in a way that will trample our rights as private citizens. This is why the Supreme Court’s opinions on civil liberty cases are crucial in insulating us from extralegal and invasive procedures from our civil servants.
The Fourth Amendment has arguably been one of the biggest casualties of technological advancement and doctrinal exceptions developed in previous case precedence. With the rapid evolution of surveillance technology coupled with judicially crafted loopholes, our expectation of privacy has greatly diminished. One doctrine that has developed from case law has had the unfortunate consequence of undermining the Fourth Amendment. That being the Community Caretaking Doctrine. This doctrine is a prime example of “…law from the bench..”. The Community Caretaking Doctrine was not fabricated to facilitate criminal investigations, but rather provide a privacy exception where a warrantless entry to another person’s property was necessary due to various categories of exigent circumstances. The pivotal case in the formulation of the doctrine was Cady v. Dombrowski (1973). In which, the arresting officers searched a vehicle in a drunk driving crash. To recover a service revolver. Doing so with the intentions of facilitating public safety.
Traditionally the Community Care Taking function of the police has been separated from criminal investigations (p.263). The conflict arises when police engage in caretaking functions and come across evidence linking someone to a crime. It is applied in situations under which the Emergency and Exigent Circumstances Doctrines would not apply. The two primary functions of the Community Care Taking Doctrine can be summarized as :
“…the community caretaking doctrine as authority for warrantless home entry would apply in only two situations: (1) non-bodily harms such as nuisances; and (2) non-imminent threats of bodily harm.…” (p.10).
The “nuisance” function of the doctrine may seem frivolous, however, it is frequently invoked. The case the United States v. Rohrig (1996) embodies a classic example of “non-bodily harms such as nuisances”, a noise complaint. (p.16). Neighbors called in the early hours of the morning to report loud music being played. Officers opened the unlocked door to the defendant’s house to request he turn the music down. While locating the homeowner “… discovered wall-to-wall marijuana plants, as well as fans and running water…”. Presenting an interesting conundrum because it is debatable whether the plain view doctrine could apply. The officer did entry the property of the homeowner with his consent nor with a warrant in hand. Criminal evidence was obtained stemming from something as trivial as noise complaints. Normatively, this makes a convincing argument for weighing the severity of the circumstances justifiable under any warrantless search and entry. Regardless of the doctrine upholding its legality. Loud music is certainly a nuisance, but it is devoid of any real danger. In the absence of any statutory mandate enabling the police to enter or the defendant’s violation of local noise ordinance; the police procured evidence of a Marijuana grows operation predicated on a legal construct. One that was conceived on the lofty bench of the high court. In the absence of ample circumstantial indicators of a serious crime nor of an emergency. It is difficult for any defender of the Fourth Amendment to perceive such actions as anything but intrusive and inordinate.
The post-Cooper case precedence removes the one core restriction established in Carroll. The elimination of the standard of a search being proximal to a traffic stop only further provides more fodder for the justification of extending warrantless searches. Making Cooper arguably a pivotal case in the advancement of the Fourth Amendment Law on vehicle searches. Consequential, throwing out this one requirement serves only to further erode our Constitutional right to privacy. Even the jurisprudence behind the plain view doctrineand probable causeis at best questionable from a normative standpoint. Upholding the limitation of onsite warrantless searches could at least be perceived as a fair compromise between civil libertarians and criminal justice conservatives.
All cases from Cooper on the standard of “appurtenance” of a search to being detained were served. Divorcing these two variables further expands the ability of code enforcement officers to commence warrantless searches of automobiles. Even after the defendant has been incarcerated. Such expansive interpretation of the doctrines involving warrantless searches of vehicles degrades the rights guarded under the Fourth Amendment. Criminating evidence discovered with a substantial probable cause at least has some grounds for permissibility. Allowing searches after detention by police bring down a treacherous slippery slope that can only be exacerbated by further judicial innovation.
The incident serving as the basis for this case stemmed from the events that transpired on February 25, 1966. It was purported that petitioners Dyke, McKinney, and Blackwell were riding in a vehicle implicated in a shooting. The automobile drove past the home of Lloyd Duckett, a nonstriking employee of “Taylor Implement”. Duckett’s son-in-law who was standing in the front yard of the property saw the shots come from the vehicle and fired back with his pistol. Subsequently, he reported the incident to Monroe County police. Police then spotted that they presumed met Ellis’s (Duckett’s son-in-law) description and chased the car. The speeding vehicle was eventually stopped and the occupants were sent to the local jail. While the defendants sat in jail local police searched the automobile. The officers came across an air rifle underneath the front seat of the car. Even at the trial, it was noted that:
“…the case against petitioners was ‘premised entirely upon circumstantial evidence’ but that nonetheless he had ‘no trouble at all with the proof which I have heard and I have weighed it in its severest form, that the charges made must be proven beyond a reasonable doubt….”
Invariably the petitioners were found to be guilty by the court. The defendants were sentenced to ten days in jail and a fifty-dollar fine. The Tennessee State Supreme Court rejected the petitioner’s claim that the evidence against them had been seized illegally. Since the air rifle was obtained when the defendants were incarcerated. However, the court did find that the officers did not face sufficient probable cause to stop and then search the car. Because the arresting officers lacked a complete description of the offending vehicle. Citing Brinegar v. the United States the Supreme court ruled that the evidence had been obtained illegally. Forcing the court to find the evidence of the air rifle seized in the search to be inadmissible in search. It would be a mistake to even perceive this court decision as even a small victory for Fourth Amendment advocates. This court ruling reads more like a technicality than jurisprudence aiming to insulate our right to unjust searches by the long arm of the law. Any judgment against the inferences of the officers was made about the flimsy evidence justifying their intervention versus Fourth Amendment concerns.
A blue station wagon containing four occupants, one wearing a trench coat and a green sweater was stopped by police. Matching the description of two men implicated in the robbery of a Pennsylvania gas station the occupants were arrested. There was a trench coat found and the vehicle and one occupant wearing a green sweatshirt. After the car was seized, it was taken to the police station and subsequently searched by authorities. During the search, the police discovered two pistols in the glove compartment and business cards from another gas station that had been recently burglarized.
In Chambers, it was found that the warrantless search of the car obtaining the handguns and business cards was lawful. However, the search failing on the dimension of appurtenance cannot be “..justified..”. Since the search had no connection to the “.. incident to the arrest..”. The spurious nature of the legal justification was outweighed by the probable cause logically substantiating the need to search for stolen property. Due to the mobile nature of cars if there is probable cause it is imperative that the vehicle is searched (citing Carroll). Arguably the most fatal reasoning in Chambers was that location of the search was inconsequential to any Fourth Amendment concerns.
“…Given probable cause, there is no difference under the Fourth Amendment between (1) seizing and holding a car before presenting the issue of probable cause to a magistrate, and (2) carrying out an immediate warrantless search…”
Demonstrating that whatever “gains” were made in Dyke were only illusory. If there was any impact made in Dyke was ineffectual if the case even moved the needle at all. As previously noted, the court weighed scant evidence for the stop and search than any civil liberty concerns. Since Dyke lacked any true fidelity to Preston, it can be seen as inert and inconsequential in the advancement of protecting the Fourth Amendment. The lack of resistance to relinquishing the appurtenance requirement for warrantless searches makes Chambers merely a continuation of the logic held in Cooper.
Cady V. Dombrowski ended up being a seminal case in the evolution of the jurisprudence of Fourth Amendment law. Arising from the decision was the foundation for the legal construct of the Community Care Taking Doctrine. Over time this doctrine has become another tool in facilitating legal warrantless searches. Despite the notable observation that an individual does have a lower expectation of privacy in their car versus their house; it is reasonable to question the veracity of the care-taking functions conferred by the court to police officers. The circumstances surrounding the development of this doctrine appear to be indicative of what many jurists refer to as “..legislating from the bench..”. The advancement of expansive doctrines through case operates as an informal form of lawmaking. The court’s historical disregard for our Fourth Amendment rights on motor vehicles is disturbing. The genesis of the Community Care Taking Doctrine serves to provide another justification instead of necessary limitations.
The Cady decision was spurred by an incident that occurred just outside of a small town in Wisconsin. The defendant had crashed his rented vehicle and was determined by responding officers to be intoxicated. He was then taken to the hospital and subsequently arrested on charges of operating a motor vehicle while under the influence. The defendant’s vehicle was towed to a garage several miles away from the police station. The next day, police commence a search of the unguarded vehicle after being informed the arrested respondent was a Chicago police officer, in an attempt to recover his service revolver. The officers found substantial evidence linking the respondent to potential murder.
“…search of the car and found in the trunk several items, some bloodied, which he removed. Later, on receipt of additional information emanating from the respondent, a blood-stained body was located on the respondent’s brother’s farm in a nearby county. Thereafter, through the windows of a disabled Dodge which respondent had left on the farm before renting the Ford, an officer observed other bloodied items. Following the issuance of a search warrant, materials were taken from the Dodge, two of which (a sock and floor mat) were not listed in the return on the warrant among the items seized..” (Justia)
The defendant refuted the evidence obtained in the vehicle search during his murder trial through a habeas corpus action. The court of appeals ended up overturning the judgment of the courts. Viewing as the evidence linking the defendant to the murder as unconstitutional obtained. However, this was not even remotely a Fourth Amendment victory. The court may have perceived the evidence procured in the search as being inadmissible, but the search in itself was not outside the bounds of reasonable action. Ruling that the search of the automobile itself was imperative for securing public interest. Mainly from the standpoint of the safety of the general public.
“…The warrantless search of the Ford did not violate the Fourth Amendment as made applicable to the States by the Fourteenth. The search was not unreasonable, since the police had exercised a form of custody of the car, which constituted a hazard on the highway, and the disposition of which by the respondent was precluded by his intoxicated and later comatose condition; and the revolver search was standard police procedure to protect the public from a weapon’s possibly falling into improper hands. Preston v. the United States, 376 U. S. 364, distinguished; Harris v. the United States, 390 U. S. 234, followed. Pp. 413 U. S. 439-448…” (Justia).
Removing the disabled vehicle from the road, especially if it was blocking access to a roadway presents a conundrum. The vehicle needs to be removed due to the car obstructing traffic. Even property rights purists (even if the ethical disagree with the police moving the vehicle) can logically deduce the rationale for doing so. The question of whether the road was a public or private roadway comes into play. Splitting hairs over such minute points is outside the scope of my analysis. It can begrudgingly acquiesce that there may be grounds to justify moving the car. However, the search for the service revolver was an overreach. If our cars can be searched merely for some vague “public interest” purpose it becomes difficult to place effective limitations on these justifications. Especially when terms like “public good” or “public interest” fail any measurable metric of objectivity. Making public safety measures mirror many of the fallacies that plague welfare economics. What is advantageous to one man is detrimental to another, unless adequate compensation is provided. The ambiguity of these qualitative terms is precisely is what lends them to the reasoning for the expansion of constructs such as the Community Care Taking Doctrine.
The case history of warrantless vehicle searches only expands from the 1925 Carroll decision. Over time, the conditions under which warrantless searches are permissible to have evolved. Not necessarily for the better. One of the most conspicuous safeguards built into the adjudication of Carroll over the years has been eroded in subsequent court decisions. The prevision of the search being appurtenant to a traffic stop is no longer consistent with the larger body of case law. Allowing probable cause searches to be conducted offsite and even days after the motorist has been detained by authorities. While the Carrol decision was imperfect at least set clear boundaries regarding permissibility. A principled stance that disappeared by the 1970s.
Chronologically the next warrantless vehicle search case taken by the Supreme Court was Husty V. United States (1931). Much like Carroll, this case involved a motorist suspected of transporting illicit alcohol. It should be noted that both incidents transpired during the U.S. prohibition on alcoholic beverages (1920-1933). The petitioners were indicted on charges of possessing and transporting alcohol in Western Michigan. Making the actions of the petitioners’ direct violations of the Volstead Act. The arresting officers searched the vehicle without a warrant and came across “a quantity of intoxicating liquor”. Since this evidence was obtained without a warrant the petitioners motioned to prevent it from being used in court. Claiming that the grounds under which they were arrested and searched with illegal under the Fourth Amendment. This motion was denied by the lower courts. Both defendants were sentenced and incarcerated.
The Sixth Circuit Court of Appeals sustained the convictions and “granted certiorari” to have the Supreme Court review the case. The high court ruled in favor of the lower courts. Stating that probable cause is enough to condone a warrantless search of a vehicle. Mentioning that :
“….it is not necessary that the arresting officer should have had before him legal evidence of the suspected act. It is enough if the apparent facts which have come to his attention are sufficient, in the circumstances, to lead a reasonably discreet and prudent man to believe that liquor is illegally possessed in the automobile to be searched….”(Justia)
In other words, a police officer does not need to justify their reasoning for the search of an automobile. The suspicion of circumstantial evidence that may be indicative of legal activity is justification in itself. The actions of the petitioners only aided in strengthening the circumstantial case for the vehicle search. The petitioners attempted to evade police when they were “hailed” to stop. The court holding that officer suspicion of the petitioners transporting contraband was sufficient for the search. Considering the recent Carroll decision, the court’s stance was not an aberration from the trends in the jurisprudence of the era.
The 1938 court decision Scher V. United States only serves to preserve the logic held in Carroll and Husty. This case also shares the commonality of the two latter cases as about the transportation and possession of illegal alcohol. Except this case involved the petitioner circumventing tax laws of alcohol. This is notable because the incident transpired after the repeal of prohibition. Scher was charged with two counts of violating section 201, Title 2, of the Liquor Taxing Act (1934).
(U. S. C., 1934 ed., title 26, sec. 1231), is amended to read as follows: “SEC. 3287. (a) Except as provided in section 602 of the Revenue Act of 1918, as amended, all distilled spirits shall be drawn from receiving cisterns into casks or packages and thereupon shall be gauged, proved, and marked by a storekeeper-gauger, and immediately removed into an Internal Revenue Bonded Warehouse. The Commissioner of Internal Revenue, with the approval of the Secretary of the Treasury, is hereby empowered to prescribe all necessary regulations relating to the drawing off, gauging, and packaging of distilled spirits; the marking, branding, numbering, and stamping of such packages; and the transfer and transportation to, and the storage of such spirits in, Internal Revenue Bonded Warehouses. “(b) Upon the application of the distiller and under such regulations as the Commissioner of Internal Revenue, with the approval of the Secretary of the Treasury, may prescribe, distilled spirits may be drawn into wooden packages, each containing two or more metallic cans, which cans shall each have a capacity of not less than five gallons, wine measure. Such packages shall be filled and used only for exportation from the United States. And there shall be charged for each of said packages or cases for the expense of pro- viding and affixing stamps, 5 cents. “(c) The Commissioner of Internal Revenue, with the approval of the Secretary of the Treasury, may, by regulations, prescribe the standards of fill of casks or packages of distilled spirits at each distillery. (Liquor Taxing Act 1934).
Scher violated these conditions under the statute by possessing and transporting distilled spirits missing the required tax stamps. The petitioner was sentenced to a year and a day for his transgression. The Court of Appeals sustained the judgment. The defendant was apprehended in December 1935, after an anonymous tip came in that his car was transporting illegal whiskey. Officers pursued the vehicle from a residence in Cleveland, Ohio where the car was observed to be “heavily loaded”. One of the officers following the car hailed the petitioner for a traffic stop. The officer that commenced the traffic stop asked Scher if he had liquor in the car. The petitioner responded by stating that he had acquired some for a social function. When asked if the liquor tax had been paid on the liquor, he stated that it was Canadian Whiskey. The officer searches the car and found “..eighty-eight unstamped bottles..” of liquor. The car and containers holding distilled alcohol were subsequently seized by authorities. Scher motioned to suppress the evidence procured by the revenue agents in the traffic stop. The Supreme Court ruled that the conditions under which the criminating evidence was acquire were valid. Despite the fact the illicit liquor was seized in a stop initiated in a garage connected to a residence, it was still valid evidence in court proceedings. Differing slightly from the previous warrantless vehicle cases, but remaining within the boundaries established in Carroll.
The defendant/ petitioner was convicted of illegally transporting alcoholic beverages across the Oklahoma state line. His actions violating Oklahoma state liquor laws, specifically the Liquor Enforcement Act of 1936. How the liquor was exported from Missouri to Oklahoma violated state law and in effect violating the 1936 statute. Federal agents seized the illegally transported alcohol at a traffic stop. The petitioner had a reputation for being in the illicit liquor business and was observed by authorities loading cases of alcoholic beverages into his vehicle. While being interrogated by the authorities initiating the stop admitted to possessing twelve cases of liquor. The petitioner motioned to “suppress” the evidence due to the search being conducted without a search warrant. Effectively claiming that this search violated the Fourth Amendment making the evidence against the defendant inadmissible in court. Based upon the case precedence dating back to the mid-1920s the petitioner was grasping at straws to avoid conviction.
The court held that the defendant made incriminating statements that established probable cause for the search of his automobile. The court also stated that the officer’s knowledge of the petitioner’s illegal activities was not purely circumstantial as he observed the defendant committing a crime. It was also ruled that utilizing the evidence in court was not improper, due to there being sufficient probable cause justifying the search. The court’s overall decision is consistent with the jurisprudence established in Carroll.
Three “companions” who had been sitting in a parked car for several hours were arrested for vagrancy. Both occupants of the vehicle were searched for weapons and then taken into police custody. The vehicle the three petitioners had been loitering in was towed and subsequently searched by the authorities’ office site. The police found substantial evidence confirming that the duo was planning to “… rob a federally insured bank…”.The Court of appeals for the Sixth Circuit ruled that this search was outside the bounds of “reasonableness” and indeed violate the Fourth Amendment. Then certiorari was granted to determine if the arrest was valid considering the search by the officers was not.
The arrest of the petitioners was spurred by a telephone complaint to the Newport, Kentucky police department reporting that three men were parked in a car and “…acting suspiciously…”. Four police officers were dispatched to respond to the complaint. Upon questioning of the police, the men in the suspiciously parked car provided questionable answers. All of the men appeared to be unemployed and only possessing a meager sum of money. One of the individuals in the vehicle claimed to lawfully own the car, but could not produce a title. Police decided to arrest the occupants and then engage in searching the vehicle afterward. The officers found paraphernalia[PC1] and other evidence linking the occupants to a scheme to rob a bank “fifty-one miles” away from Newport.
As bleak as it may seem for the petitioners, in this case, they end up capturing a big win. The Supreme Court maintaining its fidelity to Carroll end up finding the evidence seized in the search to be “inadmissible”. Since the search was “.. too remote in time and place to being treated as incidental to the arrest…”. Within the corpus of case law post-Carroll, this is the first instance of the 1925 case serving as a reasonable limitation on warrantless vehicle searches. Demonstrating that while arresting officers can conduct a warrantless search of your vehicle. That such an extraordinary privilege is not without proper limits. Making Preston a landmark case in the defense of upholding the Fourth Amendment.
The true erosion of the safety net established in Carroll was eviscerated in Cooper V. California (1967). This was the case where the court rejects the condition of a search being appurtenant to a traffic stop or arrest. In the view of Fourth Amendment purists, even the conditions set by Carroll could be viewed as being perverse. At least the Carroll decision attempted to implement a safeguard against extending warrantless searches to the point of being arbitrary. The unfortunate consequence of Cooper was the elimination of the standard of the proximity of police engagement and the search of a vehicle. Serving this one thread eliminates any silver lining provided in the Carroll ruling.
The Cooper Case was a result of the petitioner being convicted on charges of violating California narcotics statutes. However, the evidence obtained against the petitioner was collected a week after his arrest. When his vehicle had already been impounded. The petitioner attempted to cite Preston as grounds for the inadmissibility of the evidence collected from his vehicle. However, the lower court swiftly rejected this claim, suggesting that “… evidentiary error harmless under the State Constitution’s harmless error provision…”. The Supreme Court held that the search did not violate the Fourth Amendment. Since the search was closely related to the arrest of the petitioner.
The seminal Supreme Court case Roe V. Wade (1973)is a textbook example of a game-theoretical focal point. Why? Roe like many other Supreme Court rulings operates as an unspoken point of convergence in public policy. Ideally, such decisions made by the high courts should clarify the existing laws. In theory, the application of the law is the attempt to apply static statutes to dynamic circumstances. Generating ample opportunities for ambiguity and other categories of confusion regarding the administration of law. These cases generally serve as centering fixtures of public policy debates. After all, there are typically steep penalties for violating the law. If a law is flawed or otherwise unjust it can be amended or repealed, providing use revisions have gone through the proper channels. Making such court decisions a common destination of all pundits regardless of their stance on abortion. Endowing this infamous court decision with all of the unique characteristics of a focal point. No formal coordination or communication is required to reference this court case in the abortion debate, for decades it has been the centerpiece of all the contemptuous verbal sparring matches.
In many regards, Roe is unique even from the standpoint of being a Schellingian focal point. Even individuals lacking the proper understanding and context of the legal and normative arguments if the debate knows the case. Maybe not a bit of the factual or legal details of the case, but they know it by name. It is long been know as being synonymous with the legal justification for abortion. Many pro-choice and pro-life advocates use this case as a springboard to crafting normative positions either defending or repudiating the legality of this controversial procedure. Oddly enough, most of these talking points craft from a superficial understanding of the case has little to no legal substance, it degenerates into an ethical debate. Ethical justifications are also important but signify a conflation between normative and positive arguments. This an all too common occurrence in just about any political debate, the confusion between hard facts and ethics. Despite the common misconceptions regarding the abortion debate, without any formal coordination, even the arm-chair pundit looks towards Roe for the basis of their arguments.
Even people who are not interested in nor have an invested interest in the abortion debate, colloquially know Roe as the “abortion case”. Demonstrating how culturally in the United States this one Supreme Court decision from the 1970s has taken on a life of its own. Whether its legal significance is overblown is almost immaterial, but a matter to be debated among proper jurists. The significance or the salience of the focal point is culturally constructed. This isn’t to say that the moral arguments surrounding the debate are subjective. Rather, points of reference are most certainly subjective, but what makes them centralized or significant is a consensus of its importance. There is certainly a democratization effect that takes place in the establishment of culturally relevant focal points. The actual importance of the case is not nearly important as its perceived significance. A lot of Roe cultural clout was most likely sustained due to the decision being sandwiched between the cultural liberalization of the 1960s and the nascent period of feminism. It’s difficult to surmise if this ruling was made at a different point in time that it would possess the same degree of gravity. The cultural tides of the 1960s and 1970s provide the fertile substrate for such a contentious issue to be in the Supreme Court docket. These temporal and cultural aspects of the 1970s made Roe the ideal cause to be a focal point. In the decades since it has remained a consistent point of reference that also doubles as a divisive cultural event. Mirroring the same contentions of the Vietnam war and the Civil Rights movement.
The Fourth Amendment of the U.S. Constitution is central to our modern conception of property rights. Outside of contract law, few areas other than our right to privacy substantially address such civil libertarian concerns. The Fourth Amendment like so many other Constitution “rights” are not absolute and are subject to various exceptions and stipulations. Much how our right to free speech has limitations, the same can be said about our right to privacy. Even instances of warrantless searches of property and persons. Conceptually a warrantless search and seizure of property are condoned under a specific legal context. Effectively divorcing case law from the normative justifications for the drafting of the Fourth Amendment. The basis for the Fourth Amendment has its origins in the philosophical precepts of English Common Law. Immortalized in the words of the English jurist Sir Edward Coke “…That the house of everyone is to him as his Castle and Fortress..” implying that the home is a man’s ultimate refuge from public life. It is where he stores his personal effects and experiences the most intimate moments of his life. Arguably making securing one’s home the focal point of the property rights protected under the Fourth Amendment.
The Fourth Amendment concisely details the intended scope of security bestowed to American citizens under its protections.
The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized. (Amendment IV, U.S. Constitution).
In a literal reading of the amendment, it is quite evident that its scope was enough for covering the property rights of citizens of the 18th century. With the advent of new technology, this list of protected areas of the property is wholly incomplete. Since the era of the founding, the various types of property ownership have greatly expanded to include automobiles, various forms of modern intellectual property rights, and even digitally stored information. This is likely why some jurists advocate for the prospect of a “..living Constitution..” that possesses the pliability to adapt to modern times. Despite the potential danger of illiberal innovations that may be utilized to invalidate crucial Constitutional rights. E.g.) An amendment that repeals the Second Amendment due to an increase in gun violence. Due to the stringent requirements to ratify such Amendments, the 4th Amendment has evolved primarily from case law. Primarily the rulings in Supreme Court cases, setting the tone for the modern interpretation of our right to privacy.
In certain contexts, our expectation of privacy varies. For instance, we do not have the same expectation of privacy walking down the street as we do in our bedroom. The verbatim text of the Fourth Amendment does explicitly guard Americans against warrantless searches of their home and person but leaves us in a murky situation when it comes to modern forms of ownership. Never mind cloud computing and other variants of modern data storage, but even automobiles are left out of the equation. This concern becomes particularly significant in the event of a traffic stop. However, factors relating to probable cause and the plain view doctrine need to be considered in justifying a warrantless search of a vehicle, there is another variable at play. Simply, we do not have the same expectation of privacy in our car that we do in our home. To many people, this may sound somewhat absurd and normatively there are some grounds for arguing against this point. However, from the stance of positive law, these assumptions hold.
The origin of the modern limits of the Fourth Amendment regarding vehicle searches dates back to Carroll V. United States (1925). In September 1921, Carroll met with an undercover agent to sell illegal whiskey. After Carroll left the location to obtain the whiskey his “potential” client had left. Then in early October Carroll’s vehicle was involved in a chase with a patrolling police car. Carroll was able to escape arrest. Then on December 15th of the same year, Carroll was pursued and stopped by police. During the traffic stop, the officers discovered 68 bottles of illicit whiskey tucked behind the upholstery of the car. The court held that the agents that apprehended Carroll had justifiable probable cause to search his vehicle. Since previous encounters with the suspect indicated a high likelihood that he owned alcoholic beverages.
It is easy to find such conclusions troubling. After all, we do own our cars. Shouldn’t searches of automobiles require a warrant barring exigent circumstances or the consent of the owner? Carroll happened to be the defining case that did indeed confirm that a man’s car is not his castle! It is easy to assume that the same rights that apply to a home could easily be extrapolated to a vehicle. Much like a home, a car can act as a vessel for holding personal effects. In some cases, for individuals that are homeless, a car is their house. Carroll singlehandedly defines the criteria under which an automobile differs from a stationary house regarding the expectation of privacy. The court ruled that the authorities having the suspicion that a car contains contraband is in itself justifiable for a warrantless search. Why? Since cars are mobile, they can easily leave the jurisdiction well before a warrant can be issued. This decision on the part of the court may seem overarching, however, it was not without limits. The court ruled that warrantless searches of parked automobiles would be considered unreasonable. That the search must be “…contemporaneous with the stop…” making it improper to move the vehicle offsite to search at the police officer’s “convenience ”. Subsequent cases even decades after the Carroll decision would further erode the notion that there is an expectation of privacy in one’s car. Noting that the very nature of a car being a conveyance strips away much of privacy privileged to our homes. Later cases even detailing that “…It travels public thoroughfares where both its occupants and its contents are in plain view…”.