Justice Kagan's 'white supremacist' defense of the home and liberty

U.S. Supreme Court justice Elena Kagan sided with the so-called "white supremacy" of Anglo-American common law in limiting the ability of police to enter homes without a warrant.

In Lange v. California decided on June 23, the issue was whether police could enter a suspect's home without a warrant.  The suspect had committed a misdemeanor, and the police were attempting to arrest him when he fled to the confines of his home.

This case involved how far the "exigent circumstance" test under Fourth Amendment interpretation applied to warrantless entry to one's home.  The Supreme Court concluded that the warrantless entry in this case violated the Fourth Amendment.

Despite its brevity, for the broad array of circumstances it covers, the Fourth Amendment should be recognized as one of the greatest protections of liberty and private property ever conceived. It reads:

The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no warrants shall issue, but upon probable cause, supported by oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.

The Fourth Amendment stands between us and a police state.  Judicial interpretations using the Anglo-American history of searches and seizures have recognized exceptions to the warrant requirement when certain "exigencies," meaning emergency circumstances, exist.

Justice Kagan quotes several sources about the exigency exception to the warrant requirement, noting taht "the exception enables law enforcement officers to handle 'emergenc[ies]' — situations presenting a 'compelling need for official action and no time to secure a warrant.'"

The exceptions to the requirement to obtain a warrant cited by Kagan include rendering emergency assistance to an injured occupant, protecting an occupant from imminent injury, preventing imminent destruction of evidence, and preventing a suspect's escape.  Kagan noted that the exceptions have been addressed often on a case-by-case, facts-and-circumstances basis.

In his separate opinion joined by Trump appointee Brett Kavanaugh concurring in part with the judgment, Justice Clarence Thomas warned that the "case-by-case rule does not foreclose historical, categorical exceptions" and "our regular rule that history — not court-created standards of reasonableness — dictates the outcome whenever it provides an answer."

The parallel between the opinions written by Kagan and Thomas is their reliance on the old, very "white" Anglo-American common law that shaped the magnificent law over government found in our Fourth Amendment.

Kagan, for example, cites the great English jurist William Blackstone and his famous 1768 Commentaries on the Laws of England, and Semayne's Case from 1604, which is the basis for the modern-day saying, "Every man's home is his castle."

Interestingly, both Kagan and Thomas cite for the historical interpretation in this case another great English jurist, Sir Mathew Hale, and his magnificent work, History of Pleas of the Crown, where in Volume II he addresses the common law principles of cause for arrest, cause for searches and seizures, and when use of force in maintaining the peace is lawful.  Hale's writings, which helped shape American law, describe the limited circumstances of entering homes without a warrant when in pursuit of criminals.

Kagan contrasted the writings of Hale, Blackstone, and Sergeant William Hawkins from the 18th century about warrantless searches after flight and pursuit under what's now known as the "felony exception."  These very "white" authorities attempted to balance the need for law and order with the English commitment to liberty and security of one's home against unlawful government trespass.

In explaining "Ordered Liberty Is Not White Supremacy and Does Not Date from 1619" last October, I wrote about Hale and these common law bases of American law:

The principles of America's law enforcement system, however, are based in the English system from even before the time of America's Founding. Those principles are some of the greatest human achievements to protect both law and order, and liberty. That liberty is based in principles of private property and freedom of conscience.

It is no stretch, indeed it seems obvious, to conclude that totalitarian Marxists are using the cover of "white supremacy" in their attacks on the Anglo-American system to undermine our liberty and property rights.

Old-style liberals from the Democrat Party not yet completely swept away by leftist ideology — and perhaps Justice Kagan is among them — may help expose how the Anglo-American system of law and order is actually the most race-blind system of justice and liberty ever created.

Caricature by Donkey HoteyCC BY 2.0 license.

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