Democratic Policing Before the Due Process Revolution.

• Author: Seo, Sarah A.

ESSAY CONTENTS INTRODUCTION 1248 I. SELF-RULE ON THE POLICE LEVEL 1258 II. THE POLICE ASPECT OF RULE OF LAW 1266 III. DUE PROCESS 1278 IV. THE AMERICAN WAY 1283 V. PRELUDE TO THE DUE PROCESS REVOLUTION 1291 Yet even the ordinary human mind is quite capable of recognizing both that an ideal has no objective truth and yet that it does have emotional value. For example, note the display of joy and sadness at football games indulged in by alumni who well know that nothing of importance is at stake; note the necessity of the presence of an admittedly non-existent Santa Claus at Christmas; note the English attitude toward their king. Most churches today have achieved that attitude toward their creeds. Realistic understanding of an ideal does not necessarily destroy it. In the end it may make the ideal even more vital by restricting it to the purposes for which it has value. --Thurman W. Arnold (1) INTRODUCTION

In July 1952, Jerome Hall, a prominent legal scholar at Indiana University, gave three public lectures collectively titled Police and Law in a Democratic Society at the University of Chicago Law School. (2) To illustrate his understanding of democratic values in the police context, Hall rendered a conceptual flowchart. He began with the constitutional provision of due process, which imputed legality to statutes enacted under it. Those statutes, in turn, gave legitimacy to rules and standards set forth injudicial decisions. The rule of law then manifested in the police officer who acted pursuant to those rules and standards. The flowchart, however, did not conclude with the officer's mechanical enforcement of the laws. Ultimately, the officer, through such enforcement, turned into an abstraction: "the living embodiment of the law," "the concrete distillation of the entire mighty, historic corpus juris," "the living expression of democratic law." (3) Hall's figurative language seems remarkable today, coming from a self-professed "rule of law person" and conservative critic of the discretionary powers of administrative bureaucrats. (4) Within a single lecture and with the facility of metaphor, Hall cloaked the most discretion-wielding, law-enforcing arm of the twentieth-century state with the legitimacy of law.

The dominant narrative of the Warren Court's Due Process Revolution is one of rupture, captured in the word revolution itself. In this account, the Court broke new ground by extending federal procedural rights to state criminal defendants in an effort to protect individuals, especially minorities and the poor, from the police. Most histories of twentieth-century criminal procedure have adopted this paradigm of social conflict. (5) The flourishing of rights, we have learned, emerged from an enduring struggle between the forces of security and advocates of liberty, with the Supreme Court leading the charge to police the police under the banner of the Fourteenth Amendment's Due Process Clause. Today's understanding of due process accordingly centers on judicial oversight of policing. Dan Kahan and Tracey Meares, for example, have defined the "modern criminal procedure regime" as the body of constitutional doctrines that seeks to tame police discretion through "exacting judicial scrutiny of routine policing functions." (6)

Yet several inconsistencies complicate this story of active and progressive judicial review of police discretion. One is Yale Kamisar's observation that "[t]he Warren Court's performance in the field of criminal procedure does not fall into neat categories." (7) In Kamisar's assessment, during the "closing years of the Warren Court Era," when the Revolution had already ended, the "defense did win some victories." (8) The defense also "lost some important cases earlier, when the revolution in criminal procedure was supposed to be at its peak." (9) Second, while many of the Warren Court's landmark decisions provoked prompt backlash--consistent with the narrative of opposition--one of its most prominent cases, Gideon v. Wainwright, (10) received immediate and widespread approval. (11) Third, the subsequent, more conservative Burger Court invalidated vagrancy laws in Papachristou v. City of Jacksonville (12) for granting too much discretion to the police and, in doing so, articulated a breathtaldngly broad understanding of personal liberty. Rather than proving the rule, all of these exceptions suggest that a general theory built on a dichotomy between due process and crime control fails to provide a fully coherent view of the Supreme Court's criminal procedure decisions.

One could dismiss Jerome Hall's striking description of the police as the embodiment of democratic values and the rule of law as mere metaphor, political spin, or cognitive dissonance. But it is more difficult to ignore the fact that the Chicago lectures received attention from both the general public and legal scholars, including Herbert Wechsler. (13) Although now somewhat obscure, Hall was a Distinguished Professor of Law at Indiana University from 1957 to 1970, and in recognition of his stature, the Maurer School of Law named its library and a postdoctoral fellowship in his honor. In 1966, a New York Times book review essay identified him as among the "American judges, lawyers and teachers of law... who made contributions to legal philosophy and jurisprudence." (14) He was a leader in several disciplines, serving as President of the American Society for Political and Legal Philosophy (1967-1969), President of the American Section of the International Association for Legal and Social Philosophy (1966-1968), and Director of the American Society for Legal History. (15) Once he retired from Indiana, U.C. Hastings College of Law immediately hired him into the distinguished "65 Club." (16) This peculiar tradition took advantage of mandatory retirement rules then in place at many law schools by recruiting prominent scholars and jurists over the age of sixty-five, including the Chief Justice of California Roger Traynor, U.S. Supreme Court Justice Arthur Goldberg, and the torts scholar William Prosser. (17) This assembly of star power prompted Roscoe Pound to declare that Hastings had "the strongest law faculty in the nation." (18) According to Hall's New York Times obituary, he continued to teach until about six years before his death at age ninety-one. (19)

By the time he delivered his Chicago lectures in 1952, Hall had established an international reputation as a leading scholar of criminal law and legal philosophy. The major works for which he was known--including General Principles of Criminal Law, which the Journal of Legal Education described as "the most important treatise on criminal law produced by American legal scholarship" (20)--had already been published. (21) (In 1960, his publisher would increase his royalties for a second edition of General Principles from fifteen to twenty percent because "Professor Hall is the mos[t] ou[t] standing Criminal Law writer of the twentieth Century." (22)) Hall had also written on democratic theory, having published Living Law of Democratic Society in 1949. Based on his scrapbook, Hall began receiving invitations to give talks on the topic in 1947, and his 1952 lectures appear to have been part of this spealdng tour. Two years later, in 1954, the U.S. State Department asked him to assist with the "legal reconstruction" of South Korea after the war there. (23) Given Hall's reputation as a criminal law scholar and democratic advisor and theorist, Police and Law in a Democratic Society received serious attention.

Hall's exposition of democratic policing may be perplexing to us today, but it made sense to him and to his audience. Talcing Hall on his own terms, rather than writing off the lectures as a curious relic, might offer a starting point for a cultural history of fundamental principles in American law--and could help to explain tensions within the Due Process Revolution. This approach may suggest insights altogether different from those of traditional legal studies. The pages of a judicial opinion, a casebook, or a professor's lecture provide a first-order description of, say, due process, to take the example from Hall's illustration above. They address the legal meanings of due process, such as the Sixth Amendment right to counsel. To be sure, these rights are important in the real world; the point at which an accused has the right to consult a lawyer can make all the difference in a case. The main point here is that the internal view of law--the very stuff of law school curricula--centers on legal reasoning and argument.

But there is also a second-order inquiry, which explores the symbolic meaning of legal norms within a particular culture. Thinking about law as culture raises different questions than the legal inquiry of which procedural rights are due or the normative inquiry of which rights should be due. Instead, it asks what values those rights signified beyond the debates of lawyers and what purpose those values served. This Essay examines Hall's lectures at this interpretive level, as an artifact reflecting American legal culture in the mid-twentieth century, and then reinterprets the Warren Court's landmark criminal procedure decisions within this particular culture. (24)

Of course, culture is amenable to many definitions, especially among anthropologists. This Essay adopts the understanding memorably stated by Clifford Geertz, that "man is an animal suspended in webs of significance he himself has spun," and that culture refers to those webs. (25) To get at these questions of meaning, Geertz proposed "sorting out the structures of signification... and determining their social ground and import," a process more simply known as "thick description." (26) In even plainer language, the cultural anthropologist describes behavior in context, distinguishing--to use Geertz's example--an involuntary twitch of the eye from a flirtatious signal or a parody of an...