Legal Authority

I'm not sure that Marshall would have been a dissenting vote in Terry. The view that it is reasonable for officers to search and seize on the street in order to protect their own safety is supported by a consensus of which he certainly was a part. The admissibility of evidence acquired in such a search is then the constitutional question, and again I am not certain that he would have disagreed. No one who is at all racially realistic will deny that this means that street stops can and will be used in a uniformly racially unfair manner. You are undoubtedly right in your summary of the consequences. It is still possible, however, to believe that those elements of policing have to be made racially non-discriminatory by means other than changing the underlying constitutional law. Marshall at any rate seems to adhere to that point of view throughout most of his time on the Court.

Which leaves us asking something like the same question, though half a century further along and therefore even more aware of the outcome. We may reasonably enquire, given what we see around us, whether there are any changes in constitutional doctrine that would actually remedy the problems? The older view may turn out to have power precisely because what we have learned in the meantime puts the attainment of racially-just policing on a different level of difficulty altogether, as is expressed in the rise of efforts to change the public order system more fundamentally.

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