The balance between liberty and security in criminal cases
Matters of criminal procedure were not much in evidence in the aftermath
of the bombings at the Boston Marathon. Nary a peep of protest was raised
against the massive lock-down and manhunt that followed hard on the heels of
that senseless tragedy.
But now that some degree of normalcy has returned, it is important to
think about these procedural issues. To that end, two recent Supreme Court
cases address law enforcement and the Fourth Amendment. Florida v. Jardines
deals with searches in connection with illegal drug trafficking and Missouri v.
NcNeely addresses compelled blood tests on suspected drunk drivers.
Both of these cases return to fundamental questions that have previously
divided the Court. What is remarkable about the Supreme Court’s recent Fourth
Amendment jurisprudence is that these divisions are not apparent. The opinions
in both cases lack reference to the endless theoretical debates between the
hard-nosed originalists and the equally insistent defenders of the “Living Constitution.”
In consequence, these close decisions have generated strange alliances that
have transcended the deep five-to-four conservative-liberal split.