- The Washington Times - Monday, December 4, 2000

The Supreme Court has struck down an Indianapolis law that allowed police to use roadblocks as a means of searching for drugs. The court said the war on drugs was not more important than the Fourth Amendment, which prohibits generalized searches and seizures of the population for the purpose of uncovering criminal activity. Roadblocks are permissible when the police are looking for a person who is suspected of a specific crime. They are not permitted as a means of trolling for people who might be guilty of crimes.

This ruling is a step back from the proactive approach to crime favored by Jeremy Bentham, a famous 18th century Englishman who believed, fervently, that the more power government had the more good government could do. Bentham believed it was what our Supreme Court would call a “compelling social interest” or a “compelling government interest” for people from lower socio-economic classes (whom he believed to be more prone to crime) to be arrested and put in workhouses before they could commit a crime.

Society would benefit more, Bentham said, by preventing crimes before they occur than by punishing people after the event. Bentham justified his proactive roundup of possible criminals as producing “the greatest happiness for the greatest number.” He contrasted his approach favorably with Sir William Blackstone’s approach of protecting the individual from unreasonable search and seizure.

Bentham also thought that efficacy in securing convictions was more important and more beneficial to society than the attorney-client privilege, jury trials and the prohibitions against torture and self-incrimination. Torture, Bentham said, would do away with the delay and expense of a jury. The conviction process would also benefit, he said, if lawyers were forced to be stool pigeons who ratted on their clients.

Many Americans, both liberals and conservatives, become Benthamites when they are chasing after their favorite devils. Liberals believe white-collar crimes and environmental crimes are so heinous that apprehension of such criminals justifies setting aside the prohibition against retroactive law, as in the Superfund legislation, and the attorney-client privilege, as in the Charles Keating S&L case. Conservatives believe the war on drugs should be pursued at the expense of the prohibition against unreasonable search and seizure.

Or so it seems. In the Indianapolis case, it was the three most conservative justices William Rehnquist, Antonin Scalia and Clarence Thomas who voted to uphold the use of roadblocks to conduct drug searches. It appears that our Constitution is safe from neither the left nor the right as all sides are prepared to cut great swaths through constitutional protections in order to better chase after their favorite bete noire.

On the other hand, the conservative justices might only be arguing for consistency. The court does uphold roadblocks to check for alcohol use. This is also a generalized search unrelated to a specific suspicion. Here we have the Benthamite argument that in this case it is permissible to troll intrusively among the population in order to protect pedestrians and other drivers from the drunk driver.

This is different, six justices think, from trolling for drug users, transporters and sellers because the possession of drugs does not mean one is incapacitated and a dangerous driver on the road.

Blackstone would say that one Benthamite argument is the same as another and that inconsistency is an equally regrettable legal shortcoming of our Supreme Court. The same justices, who are willing to suspend the Fourth Amendment for the sake of clearing the road of anyone who has had a drink, refused 9-0 to allow an employer to dismiss a truck driver who repeatedly failed drug tests.

Apparently, it is OK to drive drunk on drugs, but not drunk on alcohol. It is troubling that the Fourth Amendment’s sway is subservient to the subjective belief that alcohol is a greater menace to society than drugs.

What better basis for a Benthamite society than a Constitution that rests on nothing but the subjective opinion of judges?

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