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A 'Constitutional Moment?' : Insisting the crime problem is unique, people are ever more willing to abandon the Bill of Rights.

April 24, 1994|ROBERT WEISBERG | Robert Weisberg is a law professor at Stanford University

Fourth Amendment law has a complex and tortuous history, and many liberals believe the Burger and Rehnquist courts have dangerously weakened Fourth Amendment protections. But if one basic judicial construction of the Fourth Amendment has survived all the political buffeting, it is the rule that unless police have a warrant, or specially defined exigencies are proved, they cannot enter a person's home even if they have probable cause to believe there is evidence of a crime at this particular time and place. (The proposed public-housing sweeps do not even meet the probable-cause criterion.) Breach that wall and it will be hard to resist legal arguments for military-style sweeps of homes on all sorts of government-contrived pretexts, or for highly selective sweeps that seem aimed at minorities.

Nor is this concern for unintended consequences limited to judicial precedent. However crazy, the "three strikes" laws are probably not unconstitutional under current Supreme Court doctrine. But in our complex system of separated and partly overlapping governmental powers, legislatures have a bad habit of creating messes that someone else has to clean up. As they demonstrate their toughness, they bamboozle the public into believing these measures can be had without tax increases or without bankruptcy-threatening costs on cities and counties that have to foot most of the bill for overlogged criminal-justice calendars.

Ironically, if one area of American life might justify a sense of unique exigency, it is the inner city--where the risk of residents becoming victims of criminal violence is wildly disproportionate to the risk that the middle classes face everywhere else. But if that urban condition constitutes a "constitutional moment," the remedy can hardly be to solve the problem by re-empowering the states to impose martial law at the voters' discretion. That would not be a constitutional innovation designed to meet changing times as much as a terrifying reversion to a world that constitutional government was designed to prevent.*

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