Reagan and the law

National Review, Oct 4, 1985 by John J. McLaughlin

ED MEESE loves being attorney general, and the job is transforming him. "The guy is turning out to be a dynamo," says a White House insider, "the most energetic Cabinet officer we've got. I didn't think he had it in him.c Meese, you see, loves to enforce the law, especially against drug traffickers. He's been on the drug scene in Miami, New York, Boston, Detroit, Chicago, Los Angeles, San Diego, and the southwest border, making the continent into a county--Alameda County, if you will, where Meese served as prosecutor.

Of a pice with his law-enforcement charter, Meese's role as a point man (along with Education Secretary Bill Bennett) of the Reagan social and civil-rights revolution is likewise in full flower. "I would consider myself in the forefront of the civil-rights movement," announced the attorney general on a late August Brinkley TV show, adding en passant that the Supreme Court's 1966 Miranda decision was "infamous," and that the Warren Court was guilty between 1960 and 1969 of "wholesalely upsetting cases and inventing new law."

The course and contour of Mr. Meese's judicial agenda are broadly known. What has happened in the past few weeks, however, is that the focus has sharpened, and no fewer than five thrusts of the Justice Department are now in view: Miranda, the exclusionary rule, minority hiring, gender classification, and Bill of Rights application.

Before the police can interrogate a suspect held in custody, they must advise the apprehended person of the right to have counsel (his own or court-appointed) present at the interrogation, the right to remain silent, and the knowledge that if he chooses to speak, anything that he says may be used against him at a possible criminal trial (Miranda). "So any skilled criminal simply stays quiet, calls in his attorney, and deprives the police of evidence that can be used to prosecute," notes Bruce Elliott Fein of the American Enterprise Institute, whom the Washington Post recently described as "part of a budding and influential cadre of conservative activists providing the intellectual underpinning for the Reagan Administration's civil-rights stances." Joe Califano strongly disagrees. "Anybody who's ever been in a police station," Califano told me, "finds the place so intimidating that it simply demands some legal instrument that will protect his rights" Fein says it already exists: If the confession is voluntary (uncoerced), it's admissible; involuntary, inadmissible.

The exclusionary rule is similar: Evidence obtained without a warrant (where a warrant is required) is excluded from use in a criminal trial, "depriving the police of reliable and often necessary evidence," notes Fein. Califano thinks differently: "The Court is the place where you go to protect the individual. Any individual who's had the force of government laid on him knows that you have to give that individual tremendous protection--that is, if you want to have a free society."

In civil rights, the most contentious issue of late deals with minority hiring. Under existing executive order (LBJ's, signed in 1965), any government contractor must establish goals and timetables for increasing the number of minority hirees until the rate at which minorities are hired is at least 80 per cent of the rate for whites. "To avoid being hassled by the government, contractors automatically give preference to blacks over whites until they get above the 80 per cent mark," says a Reaganite official. "Then they don't have to fill out all those papers and worry about all these lawsuits. Of course, in the process a white person gets disciminated against."

The Meese Justice Department wants to preserve affirmative action but get rid of all quotas or anything that smeels like quotas. "Recruitment is the answer," says Fein. "Search everywhere for those who have the talent to fill the job." But the opposition syas recruitment is not enough. "You've got to have statistical evidence or the proces swon't have the power to overcome resistance to putting blacks into the system," says a Great Society lawyer/lobbyist.

STATES' RIGHTS is a major concern of Reaganites, and it can be studied through the issue of gender classification. In Mississippi, as a case in point, only females could attend a state nursing school until the Supreme Court held that to be unconstitutional. Conservatives of the judicial-restraint stripe believe that Mississippi should be entitled to have an all-female state nursing school if it so wishes. The larger issue here is whether the powers of the states ought to be broadened by shrinking the application (or "incorporation") of the Bill of rights. "Generally speaking," observes Fein, "the Bill of Rights was not intended to be applied or incorporated to the states through the Fourteenth Amendment. The High Court's 'Doctrine of Incorporation' is its own invention."

Reagan's social/juridicial revolution, with its wide cultural wake, faces rough waters ahead, obviously. But this particular break with the past is more intellectually interesting than either the Reagan fiscal revolution (supply-side economics, tax cutting and overhaul, shrinking of government regulation), or the foreign-policy shift (reintegration of force into diplomacy, as in Grenada), or the national-security thrust (military rearmament). If this social revolution takes hold, especially through a High Court heavy with Reagan appointees, then it will turn out to be the most enduring legacy of the President, and the most reformist one.