The Constitution: above politics
The November election could turn out to be something of a referendum on the US Constitution. And the result, according to some politicians, may set the path for justice in America for the rest of the century.
This is unfortunate. Guarantees of liberties should not be reduced to partisan political considerations. If we are to have a another hard look at the Supreme Law of the Land, it shouldn't be in the glare of a presidential campaign.
The gaunlet, however, is already down. The Mondale-Ferraro Democratic team is decrying recent criminal-justice decisions of the US Supreme Court as ''backward-looking.'' And they warn that the reelection of Ronald Reagan could lead to the appointment of several more conservative justices who would go even further with law-and-order rulings.
The liberals' scenario is frightening to any self-respecting civil libertarian: It includes the retirement of three or four justices - including William Brennan and Thurgood Marshall, now the court's progressive bulwark - and the appointment by President Reagan of solid conservatives who (in the view of Democrats) would clearly place community protection over individual rights.
Democrats are concerned that a top priority of this new right-tilting high tribunal would be to knock down totally the exclusionary rule, which now disallows certain evidence that has been illegally gathered by the police.
Just recently, the court took initial aim at this 70-year-old judicial guideline by deciding that defective (or procedurally incorrect) search warrants could be honored if police had acted in ''good faith'' in presenting them. In related decisions, the justices also upheld the doctrines of ''inevitable discovery'' and ''independent source'' which will now validate previously tainted, and disallowed, evidence.
The Reagan administration had lobbied hard for major restrictions on the exclusionary rule. Its rationale was that the rule had been widely abused by criminals and those accused of crime. And the loser, they say, is the law-abiding public, continually endangered by criminals walking the street who have been freed on legal ''technicalities.'' Their motto: Protect the crime victim - not the perpetrator.
On the other hand, Democrats, including many liberals, see the priority as one of guaranteeing individual rights. They are concerned that the Fourth Amendment, which protects individuals against unlawful searches and searches, is likely to be dismantled by future decisions of conservative justices.
''Save the Constitution'' is the cry of liberals. Eject Reagan and Bush, elect Mondale and Ferraro and halt the whittling away of individual liberties.
Obviously there is hyperbole on both sides. Despite recent decisions by the court, the Fourth Amendment is not on the ropes and personal freedoms are still generally intact. Yet it would be naive to assume that there is no danger along these lines. A conservative-leaning, law-and-order court has clearly signaled that defense of the many is as important as justice for the individual, if not more so.
This philosophy could become more entrenched with the reelection of Ronald Reagan and the expected appointment of several more justices of like views. The admission of good-faith evidence now only pertains to faulty search warrants. But it could be a step toward widespread warrantless searches and broadened use of ''tainted'' evidence - if it could be proved that police had no illegal intent.
On the other hand, the installation of the Democratic ticket in the White House would almost certainly signal more liberal appointments to the high court - and a swing of the pendulum back to the days of the Earl Warren court of the 1950s and '60s with the emphasis on personal rights.
Regardless, the exclusionary rule and its application are likely to be immersed in controversy for a long time. Some reformers recommend the British approach: Instead of excluding evidence, use civil, criminal, and disciplinary remedies to curb unlawful searches and seizures.
The US Constitution would seem to preclude an adoption of the British method. And, fortunately, it is that Constitution that will ultimately save us from thrusts from both the left and the right - and perhaps our own undoing.