5.26.2011

Conservative Constitutionalist - Justice Ruth Bader Ginsburg

It is with no small amount of trepidation, of which I’ll explain shortly, I find myself siding with one of the most ‘liberal’ justice’s conservative defense of the 4th amendment in ‘Kentucky v. King,’ decided in this week’s Supreme Court docket.

Ruth Bader Ginsburg, with whom I couldn’t imagine myself agreeing, this week issued the sole dissent to the Court’s landmark decision concerning warrantless searches pursuant to the doctrine of ‘exigent circumstances.’

Ginsburg cited Brigham City v Stuart, 547 U. S. 398, 403 (2006) which defines “exigent’ circumstances [as] “when there is an imminent risk of death or serious injury, or danger that evidence will be immediately destroyed, or that a suspect will escape.”

The majority opinion hinged on the ‘danger that evidence will be immediately destroyed’ and the extent to which the officers in the case ‘caused’ the circumstances by loudly banging on the door of the residence.

If the police had probable cause and could convince a judge of the same, prudence suggests they wait and make sure they have the warrant before provoking ‘exigent’ circumstances. The evidence suggests they could have done so, but failed to do so.

The 4th amendment declares our right to be secure in our persons, houses, papers, and effects, against unreasonable searches and seizures. The court, in favoring law enforcement against what after the fact were shown to be criminals, has given the state yet more power against all individuals, diminishing the rights of all in order to prevail against a few.

Justice Ginsburg’s well reasoned dissent from the majority opinion is the conservative opinion - conserving the principle embodied in the 4th Amendment of the Bill of Rights of protecting the individual against the overwhelming power for the state.

Justice Ruth Bader Ginsburg, a conservative constitutionalist. Who woulda thunk it?

No comments: