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Perhaps in anticipation of a serious attempt to undermine Roe v. Wade, 410 U.S. 113 (1973), the U.S. Supreme Court has adopted a technique of dismantling well-established constitutional rights and remedies and, in essence, relegating these protections to a form of “second class” status. Devolution may be defined as transferring power and authority from a higher governmental unit to a lower one, and this form of devolution involves redefinition of constitutional rights to uncertain statutory ones. The process is exemplified by two recent cases involving the Fourth and First Amendments. In Hudson v. Michigan, 126 S. Ct. 2159 (2006), the majority held that although the “knock, wait, and announce” rule during execution of search warrants involved an established Fourth Amendment right, suppression of evidence-the traditional remedy for a violation-was not required. Strangely, the decision avoided discussion of a well-recognized exception to suppression, “inevitable discovery,” which permits use of evidence that would have been obtained even in the absence of a constitutional violation. Justice Antonin Scalia manifested his well-known sense of humor by noting that a Section 1983 damages remedy was sufficient to deter unconstitutional conduct. First Amendment erosion In Garcetti v. Ceballos, 126 S. Ct. 1951 (2006), another bare majority of the court held that a public employee was not protected by the First Amendment if his “speech” was made in the course of performance of his official duties, rather than as a “citizen.” Since whistleblowing occurs when a conscientious public employee discovers and reveals information about corruption or malfeasance learned in the course of his work, it would appear that this major source of vital public information has been effectively squelched. The most hard-hit employees may be inspector generals, whose duty is to actually uncover and reveal agency problems. Justice Anthony M. Kennedy’s opinion blithely shrugged off the issue: Federal and state whistleblower laws were sufficient. This diminution of constitutional law has major repercussions, both theoretical and practical. For instance, since any violation of the Fourth Amendment is, in theory, actionable under Section 1983, and even perhaps state law, Hudson may be a precursor to abolition of the exclusionary rule altogether. To argue that a federal damages remedy is both practical and effective verges on the delusional. There are numerous defenses to Section 1983 actions, including “qualified immunity,” the defense that a reasonable officer would not have known that his conduct was illegal. Inadequate remedies If a search produces no evidence of a crime, the officers may argue reasonableness (reliance on the warrant) or lack of quantifiable actual damages. A nominal damages award may be soul-satisfying to an innocent homeowner, but not to his attorney who will probably be denied fees-because of other Supreme Court decisions. And if evidence of crime is discovered, no jury would find for the plaintiff-who may well be in prison. The Garcetti fall-out has already begun. The case was applied to dismiss a claim by a state university employee who reported concerns about fraud and false claims in student files. U.S. ex rel. Battle v. Georgia Regents, 468 F.3d 755 (11th Cir. 2006). Indeed, even before the decision was issued, the rationale behind the case was applied to uphold discipline for a police officer’s routine tip to another officer about the location of a suspect. Schad v. Jones, 415 F.3d 671 (7th Cir. 2005). Standard has been superceded Although Kennedy dismissed concerns that public employers would redefine job duties to encompass whistleblowing, lower courts have begun to find that such duties are implicit in or peripheral to extant ones, even if not enumerated. See Freitag v. Ayers, 463 F.3d 838 (9th Cir. 2006) (remand on issue of whether a female guard’s complaint of inmate sexual harassment was subject to Garcetti); Shattuck v. Potter, 441 F. Supp. 2d 193 (D. Me. 2006) (statements were “closely related” to official duties within Garcetti). Garcetti‘s relegation of whistleblowers to the vagaries of incomplete and inconsistent state laws is disquieting. This is especially true since the new standard supersedes the traditional one-whether a disclosure, even one made on the job, was about a “matter of public concern.” The job of devolution is not over, and if Roe v. Wade will not be overruled outright, the Roberts court has established the groundwork for leaving many aspects of this particular right of constitutional privacy in state hands. The great irony is that the above-mentioned diminution of constitutional protections has been (bizarrely) justified as meaning that rights will be enforced under statutory, instead of constitutional, interpretation . In the case of Roe, devolution simply means that a constitutional right will be fragmented, even shredded. The results for criminal suspects, whistleblowers, pregnant women-and the rest of us will be a constitutional tsunami. Isidore Silver is professor emeritus of constitutional law and history at the City University of New York.

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