The politicization of the Constitution by conservative Justices is self-evident when you compare the manner in which they interpret the Second and Fourth Amendments. As previously set forth, conservative Supreme Court Justices created a cost-benefit constitutional analysis to determine whether the costs to society outweigh the benefits of enforcing the Fourth Amendment. In regards to the Second Amendment, conservative Justices refused to use this same “interest balancing” test. Stone, at 488, 515.

In District of Columbia v. Heller, 554 U.S. 570, 634 (2008), Justice Scalia, writing for the Court, addressed an argument Justice Breyer made in his dissent saying: He criticizes us for declining to establish a level of scrutiny for evaluating Second Amendment restrictions. He proposes explicitly at least, none of the traditionally expressed levels (strict scrutiny, intermediate scrutiny, rational basis), but rather a judge-empowering ‘interest balancing inquiry’ [that] asks whether the statute burdens a protected interest in a way or to an extent that is out of proportion to the statute’s salutary effects upon other important governmental interests.” Id., at 634.

Justice Scalia further said: We know of no other enumerated constitutional right whose core protection has been subjected to a freestanding ‘interest balancing’ approach.” Id. This statement is unequivocally false. Conservative Supreme Court Justices have repeatedly used an “‘Interest balancing’ approach” (i.e. public safety) to illegally transform the Fourth Amendment from a protected constitutional right to a mere privilege subject to the whim  •  of judges.

Ironically, Justice Scalia aptly described the danger and destruction brought to a constitutional right through the use of an “interest balancing” test: “The very enumeration of the right takes out of the hands of government–even the Third Branch of Governments—the power to decide on a case-by-case basis whether the right is really worth insisting upon. A constitutional guarantee subject to future judges’ assessments of its usefulness is no constitutional right at all.” Id. Yet, this is exactly what conservative judges have done to the Fourth Amendment.

Finally, it must be noted that Congress used almost identical language in the enforcement clause of the Second and Fourth Amendments: Second Amendment: “shall not be infringed;” and Fourth Amendment: “shall not be violated.” The words “infringed” and “violated” are synonymous.

RACIAL MOTIVE

          Less than four years after the enactment of the Civil Rights Act, President Nixon declared his “war on drugs” a few days after taking office in I969. At this time, the drug problem was largely an inner-city problem, or more specifically a problem in the black community. Just eight years later, the Supreme Court, in Stone v. Powell, held that state prisoners could not raise a Fourth Amendment claim in a federal habeas corpus proceeding, even if the issue was decided wrongly in the state courts. In sum, this decision encouraged and allowed the states to violate the Fourth Amendment, and to use evidence obtained in violation thereof at trial. As Justice Scalia stated in his majority opinion, it was more important to obtain criminal convictions than it is to vindicate constitutional rights. See pages 4-5.

In sum, Nixon’s “war on drugs” was a war against the black community, and the Stone v. Powell decision was made to make it easier to lock up black people.

CONCLUSION

          Based on the foregoing, it is beyond any doubt that conservative Justices have an actual bias against those charged with a crime. Justice Scalia’s opinion makes it clear that obtaining criminal ‘convictions is more important than any constitutional right. When Scalia’s Stone opinion is put into historical context, it becomes clear that it was designed to oppress the constitutional rights of persons of color to aid President Nixon’s war on the black community.