By: Suzanne Sherman
A case recently decided by the U.S. Supreme Court once again reveals the inherent danger of placing virtually unlimited authority in the federal judiciary and centralizing decision making for 50 sovereign states and over 325 million people in the hands of nine unaccountable, unelected lawyers.
In Mitchell v. Wisconsin 588 U. S. ___ (2019), the United States Supreme Court considered what police officers can do when a person suspected of driving under the influence is unconscious and cannot be given a breath test.
A summary of the facts are as follows: In May of 2013, Gerald Mitchell’s neighbor observed him appearing intoxicated and agitated. The neighbor contacted police after Mitchell got in his van and drove away. Police located Mitchell walking near Lake Michigan, where he had taken pills and consumed vodka. His van was nearby. Mitchell was given a preliminary breath test, which indicated his blood alcohol content (BAC) was .24, three times over the legal limit.
Mitchell was transported to a police station for an additional breath test using more reliable equipment for evidentiary purposes in court. He lost consciousness en route, and officers wheeled him into the station. At that point, he was too lethargic to participate in the breath test, so he was transported to a nearby hospital. Even though he was unconscious upon arrival, officers read aloud to a slumped over Mitchell the standard statement offering him a chance to refuse the blood test. Mitchell was unable to refuse, and remained unconscious during the procedure.
At the instruction of law enforcement officials, the hospital administered the blood draw. The test took place approximately 90 minutes after his arrest. Mitchell was charged with violating two related provisions of Wisconsin’s drunk driving laws. He moved to suppress the results of the blood test as a violation of the Fourth Amendment’s prohibition against unreasonable searches, as it was conducted without a warrant.
Wisconsin ignored the Fourth Amendment claim and instead rested on the proposition that the search was valid under the state’s implied-consent law, meaning every person driving on the state roads suspected of driving under the influence of drugs or alcohol is presumed to have consented to testing for the proscribed BAC level, whether it be via a breath or blood test.
Interestingly, the United States Supreme Court ignored the implied-consent issue, and instead focused on whether the warrantless draw on an unconscious suspect violated the Fourth Amendment, which states that “[t]he right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated.”
The inception of the Fourth Amendment – which had little British precedent – was largely the result of the American reaction to the British writs of assistance in the 1760s. Unlike genuine search warrants, that required a much higher level of scrutiny and had to be approved by a judge, writs of assistance did not expire and did not require an itemized list of items to be seized. Under the general writs, customs officials were given complete discretionary freedom to enter private property at will. These two factors made the writs especially contemptible, rousing the indignation of those who believed that traditional liberty was rooted in the inviolability of property rights.
James Otis, the famed Massachusetts agitator that most famously articulated the treachery of such a policy in a famous legal case. Otis argued that the writs of assistance would guarantee arbitrary and despotic governmental undertakings. “Every one with this writ may be a tyrant,” he warned.
While five of the Crown’s judges decided to uphold the constitutionality of the writs, and Otis lost the case in question, he made a potent impression on compatriots that identified with the compelling force of his stance. A young John Adams was so moved by the persuasive power of Otis’ words, he wrote that “American independence was then and there born.” By all accounts, the firebrand’s condemnation of the writs left a lasting impression that wove itself into the tapestry of early American liberty.
Adopting Otis’ sensibilities, Virginia’s Declaration of Rights explicitly prohibited such a system:
“That general warrants, whereby any officer or messenger may be commanded to search suspected places without evidence of a fact committed, or to seize any person or persons not named, or whose offense is not particularly described and supported by evidence, are grievous and oppressive and ought not to be granted”
In a similar manner, Massachusetts adopted a declaration of rights that required all searches to be “reasonable,” and held that “no warrant ought to be issued but in cases, and with the formalities, prescribed by the laws.” Several other states followed suit in the 1780s. By the time the First Congress mulled the Bill of Rights, such a safeguard seemed an obvious inclusion to inhibit the general government.
In the present case, the Court was presented with a criminal matter arising out of the state of Wisconsin. The appellate court sent the case to the State Supreme Court to determine if the Fourth Amendment of the United States was violated, a clear example of a state surrendering its sovereignty. Making such a claim will ultimately move the matter to the federal judiciary.
Throughout the Philadelphia Convention, James Madison pushed for a federal “negative” (veto power) over state laws. This idea was rejected on each attempt. When a number of States insisted on adding a Bill of Rights as a condition of ratification, he argued against it saying, along with Alexander Hamilton and James Wilson, among others, that it would be redundant since the “general” government had only the powers specifically enumerated.
The legislative powers of Congress are set forth in Article I, with the enumerated powers listed therein under Section 8. The Tenth Amendment asserts the following:
“The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people.”
Here we see the United States Supreme Court sitting in judgment of how local police are handling state laws with regard to driving under the influence on state roads, which according to the Constitution as ratified, is a matter to be determined by the states, regardless of the erroneous Fourth Amendment claim.
The constitution that should control in this case is the Wisconsin State Constitution — a fact that is ignored by the federal courts, and in this case, by the state itself.
So why wasn’t this adjudicated as a matter of state law under the state constitution?
Once again, we can thank the 14th Amendment for opening the door for federal interference in matters never intended nor consented to by the states.
The Preamble to the Bill of Rights states, in relevant part, the following:
“The Conventions of a number of the States…expressed a desire in order to prevent misconstruction or abuse of its powers, that further declaratory and restrictive clauses should be added…as extending the ground of public confidence in the Government will best ensure the beneficent ends of its institution.”
When he introduced the proposal for a Bill of Rights to Congress, Madison wanted some of the provisions to be made applicable against the states. He argued that was where liberty would be most likely threatened. Again, he was defeated. The Bill of Rights was never understood to be applicable against the states. There is absolutely no historical evidence of the Bill of Rights being made enforceable against the states. Even nationalist John Marshall, in the 1833 case Barron v. Baltimore, 32 U. S. 243, was forced to admit this when he said that the first ten “amendments contain no expression indicating an intention to apply them to the state governments. This court cannot so apply them.”
In delivering the opinion of the Court in Mitchell case, Justice Alito refers to two previous instances where “we have addressed…the circumstances under which a police officer may administer a warrantless blood alcohol concentration (BAC) test to a motorist who appears to have been driving under the influence of alcohol.”
The Constitution can be amended, and the process for doing so is set forth in Article V; Congress or the States can propose an amendment and ¾ of the States must support its ratification. Justice Alito is acknowledging that the Supreme Court can hold its own Constitutional convention without inviting the States to weigh in.
This interpretation by the Court is problematic and unhistorical.
The 39th Congress, which proposed the amendment, did not debate the issue of “incorporation,” and no such premise had been adhered to in the preceding years. But, by 1925 the Supreme Court was well on its way toward inflicting a complete rewrite of the Constitution onto the states and the American people, thus diminishing the “separation of powers” between the states and the “general” government. This made-up doctrine has served the chief mechanism through which a “one-size-fits-all” form of government, with all rights and powers emanating from Washington, D.C., has arisen.
Justification for federal review of a State issue also arises from a misapplication of the Court’s jurisdiction, namely the statement in Article III that “…judicial power (of the federal courts) shall extend to all cases…arising under this Constitution…” What is the result of this interpretation? It means that all one has to do to circumvent State policy is to call the matter a “Constitutional question,” file in federal court, and ignore the Tenth Amendment, the foundation of the Constitution, according to Thomas Jefferson.
In the present case, issues of federalism are ignored, largely due to two factors: ignorance and the emotional response to the tragic consequences of driving while intoxicated.
Alito stated the following:
“The importance of the needs served by BAC testing is hard to overstate. The bottom line is that BAC tests are needed for enforcing laws that save lives. Highway safety is critical; it is served by laws that criminalize driving with a certain BAC level; BAC tests are crucial links in a chain on which vital interests hang.”
He explains further that, “twice we have referred to the effects of irresponsible driving as “slaughter” comparable to the ravages of war. Breithaupt v. Abram, 352 U. S. 432, 439 (1957); Perez v. Campbell, 402 U. S. 637, 657, 672 (1971).
To compare the statistics of highway deaths attributable to drunk-driving to the “ravages” of war is hyperbole at best and disingenuous at worst. It is language selected to trigger the emotions and blind the eye that should be jealously guarding against an ever-expanding encroachment upon state sovereignty. Clearly, no one wants to see people killed on the highways due to drivers operating motor vehicles while impaired. But that is not an excuse to ignore the fact that the states are the proper authorities entrusted with managing this issue; further, the means by which they have entrusted law enforcement to carry out procedures is a manner to be accepted or challenged at the state level.
Supreme Court opinions have essentially gutted the warrant requirement of the Fourth Amendment. Further, the Court was mixed on whether a warrant under Mitchell’s circumstances was required at all.
Justice Thomas opined, “The better (and far simpler) way to resolve this case is to apply ‘the per se rule’ I proposed in Missouri v. McNeely, 569 U. S. 141 (2013)…Under that rule, the natural metabolization of alcohol in the bloodstream creates an exigency once police have probable cause to believe the driver is drunk, regardless of whether the driver is conscious.” (Emphasis added.)
Justices Sotomayor, Ginsburg and Kagan joined in the dissent, saying, “When the aim of a search is to uncover evidence of a crime, the Fourth Amendment generally requires police to obtain a warrant,” Veronia v. School Dist. 47J v. Acton, 515 U. S. 646 (1995) and that “(t)he warrant requirement is not a mere formality; it ensures that necessary judgment calls are made ‘by a neutral and detached magistrate,’ not ‘by the officer engaged in the often competitive enterprise of ferreting out crime.’” Schmerber v. California, 384 U. S. 757 (1966)
If the states were left to resolves this matter on their own, – the purpose of the system Madison described as federal and not national in nature in Federalist No. 39 – people could choose under which system they prefer to live. They may choose liberty over safety and rely on the fact that a warrant is the preferred method of gathering evidence, or they may opt for the feeling of security, and know that at any time, they may be required to allow law enforcement to inject a needle into their body for the purpose of gathering evidence against them.
By surrendering such matters to the federal judiciary, we are admitting that we are incapable of governing ourselves and that the right to consent to our system of government, over which a war was fought, really doesn’t matter after all.