The new public.

• Author: Seo, Sarah A.
• Position: Correlation between police discretionary authority and automobile governance in criminal procedure development - Introduction through II. The Public Sphere of the Automobile Society, p. 1616-1647

ESSAY CONTENTS INTRODUCTION I. A SOCIO-LEGAL, CULTURAL, AND INTELLECTUAL HISTORY OF THE FOURTH AMENDMENT A. Why Cars B. Why Reich II. THE PUBLIC SPHERE OF THE AUTOMOTIVE SOCIETY A. Governing the Automotive Society B. Policing the Regulatory State III. THE NEW PRIVATE SPHERE OF AUTOMOBILITY A. Reich and the Road to Freedom B. The Freedom of Movement and the Automobile IV. THE NEW PUBLIC A. Privacy in Public B. From Substance to Procedure C. Public/Private Distinction Redux V. CODA: THE FUTURE OF THE FOURTH AMENDMENT INTRODUCTION

"The most powerful elements of American society devised the official maps of the culture: inscribing meaning in each part of the body, designating some bodily practices as sexual and others as asexual, some as acceptable and others as not; designating some urban spaces as public and others as private.... Those maps require attention because they had real social power, but they did not guide the practices or self-understanding of everyone who saw them."

--George Chauncey, 1994 (1)

"Although Meg still could not move her arms or legs she was no longer frightened as she lay in her father's arms, and he carried her tenderly towards the trees. For the moment she felt completely safe and secure and it was the most beautiful feeling in the world. So she said, 'But Father, what's wrong with security? Everybody likes to be all co[z]y and safe.'

'Yes,' Mr. Murry said, grimly. 'Security is a most seductive thing.'

'Well--but I want to be secure, Father. I hate feeling insecure.'

'But you don't love security enough so that you guide your life by it, Meg. You weren't thinking of security when you came to rescue me with Mrs Who, Mrs Whatsit, and Mrs Which.'"

--Madeleine L'Engle (2)

In 1966 Charles Reich, then a professor at Yale Law School, wrote about his "disturbing number of encounters with the police," particularly the "many times" while driving a car. (3) The traffic stops happened in several states, from New York to Oregon, and "always in broad daylight." (4) The officers would ask to see his license and wanted to know "where [he] was going, where [he] was coming from, and [his] business." (5) Each time, Reich asked why the officer had "flagged [him] down with sirens and flashing light," only to receive the dismissive reply that he was "just checking." (6) When one officer informed Reich that he "had the right to stop anyone any place any time--and for no reason," Reich decided that he "had better write an article." (7)

In the article that followed, published in the Yale Law Journal and titled Police Questioning of Law Abiding Citizens, Reich articulated a "special need for privacy in public" in a world of seemingly unlimited police discretion. (8) This inside-out claim harkened back to a constitutional understanding that prevailed from the nineteenth century into the early twentieth. What scholars today refer to as classical legal thought divided the world into public and private spheres to delineate the reach of legitimate government action. (9) Whatever the law labeled "public," the state could govern. For instance, in 1928, the New York City Police Commissioner defended aggressive, even unconstitutional, police tactics on the ground that "[a]ny man with a previous record is public property." (10) In the private realm, however, free men (and they were men) (11) enjoyed the presumption of the right to be left alone and do as they pleased. The classic private sphere was the home, where individuals enjoyed the inviolability of their proverbial castles (12)--at least until what they did inside their homes affected the "public interest." (13) As this burden-shifting process suggests, complete freedom from state regulation in the private sphere was never the reality. The public/private dichotomy was more like a continuum from more regulation to less, and somewhere along that spectrum was a line between free and not free. This dualism was an analytic framework that powerfully shaped how legal minds conceived and articulated arguments for individual rights or social legislation.

Reich was thinking of the legally constituted private realm when he wrote that "[t]he good society must have its hiding places--its protected crannies for the soul." (14) Only in these sanctuaries, hidden from the intrusive gaze of the state, could individuals live freely. But by "hiding places," Reich referred not to the sanctity of one's home, but rather to the road and the automobile. This was an odd claim as a matter of law. Ever since Henry Ford perfected the mass production of the Model T, courts had held that automobiles were not private property like houses. (15) Rather, they were more like public property, judges reasoned tautologically, because the state regulated them. Courts accordingly concluded that the automobile was not entitled to all the rights that the private sphere afforded. Relying on the public/private framework, courts interpreted the Fourth Amendment to require warrants for searches of the private sphere--"persons, houses, papers, and effects" as enumerated in the text--but this requirement did not apply to whatever the law classified as public. (16) This was precisely why police officers could stop Reich in his car without a warrant. So why did Reich think of the automobile as a private hiding place, and what did he mean by privacy in public?

Reich had made a similar topsy-turvy move in his more well-known article The New Property, published in the Yale Law Journal two years earlier in 1964. (17) To protect individuals who relied primarily on "government largess" for their livelihood, (18) Reich proposed turning that largess--that is, public benefits--into private property. Reich sought to reconceptualize the automobile in much the same way. In Police Questioning, he described an automotive society that relied increasingly on policing to maintain order and provide security. To guard against invasive policing in what the law deemed public but that he experienced as private, Reich suggested turning the public into the private. The automobile would become a new private space.

The two articles shared more than an analytic kinship. The "public interest state" that Reich portrayed in The New Property was, in fact, one and the same with the "security" state in Police Questioning. (19) Understanding how Reich connected abuse of police discretion with the dangers of the administrative state can elucidate how the police's discretionary authority metastasized from the regulation of the automobile. To be sure, post-New Deal process theorists explained that discretion is inherent in all governance. (20) But the fact that discretion is a built-in part of enforcing and applying the laws does not obviate the need for a historical account of how particular officials and institutions have come to exercise discretion over specific matters or even how discretion came to be understood as a problem that requires a solution. Police discretion has such a history. Moreover, Reich's story can illuminate how the due-process revolution in criminal procedure emerged from the same set of historical circumstances that made due-process rights essential to preserving individual liberty in the regulatory state.

By reading Reich's seemingly unrelated writings on his life and the law together, this Essay argues that modern Fourth Amendment jurisprudence "modern" in the sense that it focuses on procedural remedies that attempt to regulate police conduct (21)--has its roots in the governance of an automotive society. It traces this history, beginning with the need to provide for public safety in a fast and dangerous world, then leading to the justification of discretionary policing, and finally culminating with the threat that the demands of security might completely consume private individual rights. Once courts conceded that requiring automobile warrants would endanger the public (22) and accordingly sanctioned discretionary policing under the Fourth Amendment, (23) creating zones of privacy in cars--free from state regulation and policing--existed only as a theoretical possibility. A few people, including Reich, did imagine a constitutional right that would shield individuals from the police in their cars, which had become for many a space and means for private pleasures and freedom. But when American society depended on policing as the enforcement apparatus of the administrative state, a substantive private right in the public sphere of cars and roads proved untenable. Instead, proceduralism in criminal law would place some limits on police discretion.

This regulatory history of criminal procedure unfolds in five Parts. Before delving into the life and oeuvre of Charles Reich, Part I explains why the methodology and sources of this Essay are necessary to fully understand the development of Fourth Amendment jurisprudence specifically and criminal procedure more generally. Part II begins the narrative before Reich's time, with the nascent administrative state's response to the mass chaos that ensued from the mass production of the automobile. It then picks up at midcentury with Reich's awareness of the automotive society as a regulatory-security state in which a long list of public rights that regulated the automobile had granted the police too much discretionary power. Alongside this transformation in policing, the automobile was also revolutionizing individual mobility and, with it, the meaning of individual liberty. Part III examines Reich's memoirs and the Supreme Court's 1972 decision in Papachristou v. City of Jacksonville to describe the ways that automobility changed how many people at midcentury experienced freedom. But this preeminent symbol of personal liberty had simultaneously become one of the most heavily policed aspects of American life. To protect the automobile as a realm of individual autonomy, Reich argued for private rights, and specifically the right to keep the police out, in a space that the law...