The US Supreme Judicial Court just decided that police has the right to do strip searches as they see fit, regardless of the nature of the crime someone is being detained for. The decision, 5 to 4, is a misstep to be certain, but it is a very difficult one to correct.
The SJC exists for a single purpose, to uphold the Constitution of the United States on a legal issues brought before it. It cannot, for example, act unilaterally. It acts only on legal cases it accepts as brought before it from the lower courts. It is the responsibility of the plaintiff to show that a lower court decision, or an action by the President of the United States or Congress, is unconstitutional in nature. Such was the course of the case it heard on strip searches.
In this particular case the 4th Amendment, the right against unreasonable search and seizure, was at the heart of the matter. I find it curious, therefore, the Judge Anton Scalia found in favor of upholding the right of law enforcement to conduct such searches as it sees fit. I say that because Scalia is an “original intent” justice. That is, he believes court actions must be consistent with the original intent of the portion of the Constitution in question. I have heard Scalia interviewed and my opinion of his is he is a brilliant jurist with a very common sense approach to the law, very pragmatic. I have always felt that his conservative political leanings not withstanding he would always err in favor of the broadest interpretation of the Constitution. I am disappointed, therefore, the he took a very narrow approach to this case.
Let’s take the 2nd amendment as an example of how justices can differ greatly in their interpretation of our basic law. The 2nd amendment has been the focus of an SJC case only twice in our nation’s history. This is extremely unusual but it speaks to the court’s dis-ease with interpreting original desire. The key word in this amendment is the word “militia.” In 1774, prior to our nation’s war against England, each colony of the America’s was a government unto itself, and answerable only to the King and Parliament. The colonists desired to have a defense force of their own so the formed state militias. The minutemen of Massachusetts were just such a group. When the king forbade the colonists from storing gun power, lead, and weapons, the colonists rightly viewed this as an act against the basic right to self-protection. England had no intention of taking guns away from individuals but it did take offense to anyone other than its own forces collecting as an armed force.
The writers of the first ten amendments had certain overt actions taken by England, particularly between 1768 and 1775, in mind when they wrote each of the ten amendments. If you look at the amendments you will find an admonishment against the government lodging its soldiers in private residences. This does not seem to make much sense in today’s world but at the time the king had declared that the British army could in fact be housed in private homes as commanders saw fit.
Let’s be very clear about one thing. The writers of this portion of the Constitution were extremely wary of any individual official using his office to gain any advantage over the individual and that individual’s right to move about and live as he sees fit. Too many times the colonists had fallen victim to the whim of an official of the crown. They wrote the entire Constitution and its first ten amendments with that in the front of their mind. The writers believed that the rights of the individual must be upheld, even over the feeling of security by others. For example, most of us find the rantings of neo-Nazis to be hate speech that has the possibility of inspiring violence against people. But the reason we allow such hateful speech is that we have faith in the other laws of our country to protect us against people who would do us harm. And that as much as we might like hate-speech removed from us we do so only at the peril of other forms of speech.
In the latest case it was decided that the safety of the law enforcement officials trumped the rights of the individual over unreasonable search. In essence, the SJC said that strip searches are not unreasonable given the idea that “you never know” who might become dangerous or violent once inside a prison or jail. I think this decision an abomination to our most basic of rights. People in law enforcement understand theirs’ is a dangerous job by its very nature. I think we should afford such officials every right to insure their own personal safety but the line gets crossed at being allowed to do a strip search just because you think someone might present a danger.
The 4th Amendment has been under attack ever since “The Patriot Act” took place. The argument at that time was the same, public safety trumped individual rights. As much as I want to feel as safe as possible, I also understand that a free society necessarily leaves us vulnerable to those who might do us harm. But, it is never ever right to use group safety over individual safety. The right of the individual in our society always has to trump the rights of any group.