Timothy P. O'Neill

Chicago Daily Law Bulletin
Volume: 153 Issue: 73

April 13, 2007

The Constitution: Puzzling or Mysterious?

Howard Hawks had some trouble directing ''The Big Sleep,'' the 1946 Humphrey Bogart film noir based on Raymond Chandler's classic novel. He once convened a story conference with the film's three screenwriters, a group headed by Nobel Prize-winner William Faulkner. The four were having a terrible time trying to make sense of Chandler's famously labyrinthine tale. Totally flummoxed concerning one plot twist, Hawks fired off a telegram to Chandler reading ''Who killed chauffeur? Hawks.'' The next day he received the response ''Damned if I know. Chandler.''

Such a response would have been inconceivable from a writer such as Agatha Christie. Her books are elaborately plotted, with every detail accounted for. There are no loose ends.

Christie and Chandler were both fine writers. But they worked in very different genres: Christie created puzzles, while Chandler created mysteries.

This point was brought home in a completely different context by Gregory Treverton, a senior consultant at the research group RAND, in his book Reshaping National Intelligence for an Age of Information. He traces the shift in the roles of the U.S. intelligence community from the Cold War to the present. During the Cold War, Treverton wrote, the most pressing questions facing the intelligence community were ''puzzles,'' i.e., questions ''that could, in principle, have been answered if only the information had been available.'' He offers examples of Cold War puzzles: How big was the Soviet economy? How many missiles did the Soviet Union have? How much steel did the Soviet Union produce during the previous year? These were all questions that could be definitively answered if one only had the right information.

Treverton differentiates these Cold War puzzles from what he calls ''mysteries.'' A mystery is ''a question that cannot be answered with certainty even in principle.'' And he contends that today ''most of the critical questions facing American foreign policy are mysteries.'' He offers these examples: Will China continue to grow rapidly or will it fragment? Will reform and democracy take hold in the former Soviet Union - or in South Africa? These are mysteries because no one knows for certain. Unlike puzzles which cannot be solved because of a lack of information, many mysteries these days ironically suffer from a surfeit of information. The problem is determining which parts of the mountain of available information are truly relevant.

This leads to another distinction: ''Mysteries also differ from puzzles in that, by definition, puzzles have already happened,'' i.e., the Soviet steel has already been made and the missiles have already been built. Mysteries, however, are more subtle. Not only are they unknowable at this time, but their eventual answers are intertwined with events which have not yet occurred, such as what U.S. government policy will be next year.

Not everyone is equally adept at solving puzzles and mysteries. The two endeavors require different skills and, perhaps, different mindsets.

Malcolm Gladwell recently addressed this issue in an article he wrote for Jan. 8 issue of the The New York called ''Open Secrets.'' Gladwell wrote that ''Puzzles come to satisfying conclusions. Mysteries often don't.'' He quotes Yale law professor Jonathan Macey that puzzles are ''transmitter-dependent''; that is, their solution turns on what information we are provided. Mysteries, on the other hand, are ''receiver-dependent''; their solution turns on the skills of the listener.

Gladwell applies this distinction by comparing the Watergate cover-up with the Enron collapse. Watergate - with its whistle-blowers, ''Deep Throat,'' and secret tapes - was a classic puzzle. Bob Woodward and Carl Bernstein had no particular expertise in any area. What they did possess, however, was enormous energy and persistence that enabled them to uncover the secrets of the Nixon White House.

Enron, Gladwell argues, was a totally different story. There was very little secret information. The Wall Street Journal's Jonathan Weil broke the Enron story through his study of public information such as Enron's annual reports, income statements, and quarterly filings. Much of this was available to anyone online. This is not to say that you or I could have looked at these public documents and have come to Weil's conclusions. Weil, with years of experience in the financial world, estimated that he needed about a month before he noticed some odd patterns. He then called in an accounting professor to help him with his analysis, which eventually led to the story behind Enron's collapse.

Watergate was a puzzle that only required persistence. Enron was a mystery that required sophisticated financial expertise.

What does all of this have to do with law? I would suggest that you could roughly divide Supreme Court justices into two groups: those who view constitutional interpretation as trying to solve a ''puzzle'' and those who view it as trying to solve a ''mystery.'' And what does this have to do with criminal law? Let's look at the way puzzles and mysteries impact Fourth Amendment interpretation.

First consider Justice Antonin Scalia, a proponent of what has been described as the ''new Fourth Amendment originalism.'' David A. Sklansky, The Fourth Amendment and Common Law, 100 Columbia Law Review 1739 (2000). Scalia's general theory of all constitutional interpretation is referred to as ''originalist'' because he contends that the Constitution should be read as the Framers actually understood it, not as we might currently prefer to read it. He has derided his opponents as members of ''the original-meaning-is-irrelevant, good-policy-is-constitutional-law school of jurisprudence.'' Minnesota v. Dickerson, 508 U.S. 366, 382 (1993) (Scalia, J., concurring).

Yet his Fourth Amendment jurisprudence during his early years on the court was comfortably positioned within the mainstream tradition of deciding cases based on text and the tradition found in the Supreme Court's previous Fourth Amendment decisions. See, e.g., Arizona v. Hicks, 480 U.S. 321 (1987) (Scalia's first Fourth Amendment opinion).

A change began to occur in several cases where Scalia averred that the solution to Fourth Amendment issues should be found in the state of common law as it existed when the Bill of Rights was ratified in 1791. California v. Hodari D., 499 U.S. 621 (1991); County of Riverside v. McLaughlin, 500 U.S. 44, 56 (1991) (Scalia, J., dissenting). It became clearer when Scalia stated that the path out of the court's search and seizure confusion ''should be sought by returning to the first principle that the 'reasonableness' requirement of the Fourth Amendment affords the protection that the common law afforded.'' California v. Acevedo, 500 U.S. 565, 583 (1991) (Scalia, J., concurring). Later he stated that the purpose of the Fourth Amendment was ''to preserve that degree of respect for the privacy of persons and the inviolability of their property that existed when the provision was adopted [in 1791].'' Dickerson, supra, at 380 (Scalia, J. concurring) (emphasis added).

To Scalia, then, Fourth Amendment interpretation is a classic ''puzzle.'' It can be answered only by gathering the relevant historical information. The role of the judge is not to create policy, but rather to track down the necessary information on the history of the common law in order to find the answer. And, Scalia contends, there is one definite answer.

Compare this to Justice Clarence Thomas. At his confirmation hearings, Thomas testified that as a judge ''You want to be stripped down like a runner'' and ''shed the baggage of ideology.'' Linda Greenhouse, ''The Thomas Hearings,'' New York Times, Sept. 13, 1991. Naive or disingenuous? We report, you decide.

And yet look at Thomas's first Fourth Amendment opinion for the court in Wilson v. Arkansas, 514 U.S. 927 (1995). In order to decide whether the ''knock and announce'' rule was guaranteed by the Fourth Amendment, Thomas wrote that ''we have looked to the traditional protections against unreasonable searches and seizures afforded by the common law at the time of the framing.'' If, like Scalia, you view Fourth Amendment jurisprudence as merely a puzzle to be solved by looking at the law in 1791, then perhaps you can honestly believe that ideology plays no part in judging.

Compare Scalia and Thomas with Steven G. Breyer, a justice firmly in the camp of those who see constitutional interpretation as more a mystery than a puzzle. Breyer has stated that he believes that ''history is meant to inform, but not automatically to determine, the answer to a Fourth Amendment question.'' Wyoming v. Houghton, 526 U.S. 295, 307 (1999) (Breyer, J., concurring). Breyer has a detailed critique of ''originalism'' in his book Active Liberty (Knopf, 2005), p.115-132. Among his comments, he argues that originalism - with its criticism of the subjective judgments used by its constitutional critics - itself has inherently subjective elements, e.g., ''Which historical account shall we use? Which tradition shall we apply? And how does that history, or that tradition, apply now?''

Interestingly, David Sklansky makes the same criticism of the Scalia-Thomas ''new Fourth Amendment originalism.'' He argues that there never was a single ''common law'' tradition in 18th century America. Rather, there were 13 versions - one for each colony. He also criticizes Scalia and Thomas for refusing to confine themselves to any one version of ''common law.'' Rather, ''they look sometimes to cases, sometimes to statutes, sometimes to commentaries. They refer interchangeably to authorities from the 1600s and 1700s - and sometimes also from the 1800s and early 1900s. They mix together English and American materials.'' The question is whether this kind of analysis is really any less subjective than Breyer's emphasis on ''purpose and consequences'' in facing the mystery of constitutional interpretation.

The Fourth Amendment - is its meaning a puzzle or a mystery?

I don't know about you, but I find Philip Marlowe a lot more interesting than Miss Marple.