The Heroes of the First Amendment

In 1950, Felix Frankfurter famously observed that “[i)t is a fair summary of history to say that the safeguards of liberty have frequently been forged in controversies involving not very nice people.” The circumstances of Justice Frankfurter’s observation were hardly atypical, for his opinion arose in a Fourth Amendment case involving a man plainly guilty of the crime with which he had been charged – fraudulently altering postage stamps in order to make relatively ordinary ones especially valuable for collectors. Indeed, Fourth Amendment cases typically present the phenomenon that Frankfurter pithily identified, for most of the people injured by an unlawful search are those whose unlawfully searched premises contained actual evidence of the actual crime they actually committed. Other dimensions of constitutional criminal procedure present the phenomenon in a more attenuated way, because liberties like the rights to confront and cross-examine witnesses and to be free of compelled selfincrimination are ones in which it is more likely that the procedural defects will bear on the defendant’s guilt. But it is still the case that almost all of the American constitutional law of criminal procedure has been built by those whose underlying guilt could not seriously be questioned.