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As security experts propose new forms of searches, seizures and surveillance to combat terrorism, civil libertarians will rhetorically rally round the Constitution. But that document does not quite say what most libertarians — or most judges, for that matter — think it does. Indeed, the document is far wiser than the standard libertarian line and the conventional judicial interpretation. The key constitutional text is the Fourth Amendment: “The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.” Note what the amendment does not say. It does not say that every search or seizure must have a warrant. Nor does it require that each intrusion must be backed by probable cause, or even individualized suspicion. Nor does it command that whenever an unconstitutional intrusion occurs, judges must exclude the evidence obtained, and its fruits, from any criminal prosecution. Founding history confirms this straightforward reading of the text. Arrests — highly intrusive seizures — did not require warrants at the Founding. (Nor do they today. Most arrests in fact occur without warrants.) The very Congress that proposed the Fourth Amendment authorized searches of certain ships without probable cause or even individualized suspicion. Before 1776, and for more than a century thereafter, no English or American judge ever excluded reliable evidence simply because it had been found in an improper search. Common sense also supports plain meaning. Metal detectors at airports and courthouses are now commonplace even though these search regimes lack warrants and probable cause. Metal detectors are indiscriminate — everyone, suspicious-looking or not, must pass through — but indiscriminateness alone does not make them unconstitutional. In fact, the general lack of discrimination may make metal detectors constitutionally more attractive on egalitarian grounds. Common sense also balks at the extreme libertarian argument that evidence found in an illegal search must always be suppressed because government must never “profit from its own wrong.” Government does not, and should not, return stolen goods to a thief, even if it finds them in an illegal search. Rather, government restores stolen goods to their rightful owner, just as it would restore a kidnapped child to her parents. We do not insist that if cops find the child in an unconstitutional search, they must give her back to her kidnapper, close their eyes, count to 20 and then start looking again. For similar reasons, government should constitutionally be allowed to use leads found in illegal searches to track down violent partners in crime, and to use all reliable evidence to put perpetrators behind bars, thereby protecting future victims. If the Constitution does not require warrants, probable cause, individualized suspicion, or the exclusionary rule, what does it require? Simply this: Every search and seizure must be reasonable. This is less vague than it might sound, for the document gives us considerable guidance about what is reasonable, why, and who should decide. The Fourth Amendment affirms Americans’ right to be secure. The right runs against government, but threats to security posed by thieves and thugs affect the constitutional calculus. For example, well-placed metal detectors may make us a little less secure against government, but can also make us a lot more secure against terrorists. Greater private threats may justify greater governmental intrusions. Americans may disagree about whether a given governmental intrusion makes them, on balance, more secure overall. But that is the key issue to debate, as opposed to the presence or absence of warrants and probable cause. And in thinking about security, we should openly focus on the intrusiveness and proportionality of the government’s response. For example, in contrast to full-blown arrests or bodily strip-searches, metal detectors at airports are relatively modest intrusions, proportionate to the real threat of airline hijacking. A dragnet search of a neighborhood to find a stolen watch would ordinarily be disproportionate, even though a similar search to find a missing child might not be. The amendment affirms a right of the people. At the Founding, juries embodying the people played leading roles in deciding which intrusions were unconstitutional. (Warrants — addressed in the second half of the amendment — were generally disfavored because they issued from judges in secret proceedings that cut juries out of the loop. Thus, warrants required certain special safeguards — probable cause, oaths, particular description — not required generally for all searches and seizures.) If the government searches a broad cross-section of citizens, allegedly to enhance their security, those citizens are well positioned to assess the reasonableness of the search, and judges should not completely ignore popular sentiment. But when only a few individuals or members of disfavored minority groups are specially targeted, the people en masse may be poor judges, happy to impose intrusions on others that they would not willingly bear themselves. Ironically, sometimes a broader search, intruding on a much greater portion of society, is constitutionally preferable. The people can judge best when they are both the subjects of a search and its alleged beneficiaries. The Bush administraton has recently proposed to expand the powers of judges to issue wiretap warrants. But because judges issuing such warrants typically act in secret, the public and the people are in effect cut out of the loop here. Given the Fourth Amendment primacy on popular input, additional safeguards should be considered. For example, the law could require that, in addition to getting a court order, the Justice Department must periodically report the names of those to be subjected to wiretapping to a Senate commitee with special security clearance. Exceptions could be made only if personally approved by the president and attorney general. This reporting requirement would tighten the link between governmental intrusion and popular judgment; unlike federal judges, senators and presidents are elected by the people. The amendment mentions persons, houses, and papers, above and beyond all other effects. When government searches or seizes human bodies (persons), it must take special care to minimize unnecessary intrusions upon liberty and dignity. Houses deserve more protection than other buildings because they are unique seats of intimacy and family. Rifling through citizens’ papers can threaten free expression, and so here, too, government must tread cautiously. Once we understand these special Founding values of bodily dignity, privacy, and free expression, we can guard against high-tech intrusions that threaten these values in nonliteral but real ways. For example, overly broad wiretaps and electronic eavesdropping can jeopardize expressive freedom even if papers are not literally involved. Equality is another vital Fourth Amendment value. The very word “people” implies democratic equality among citizens, in contrast to the elaborate class distinctions of the Old World from which America revolted. The rule that warrants can be supported by either oath or affirmation embodies religious tolerance and pluralism; some religions reject oath-taking, and the amendment aims to accommodate these minority groups. Most importantly, the 14th Amendment, adopted after the Civil War, glossed the Fourth Amendment’s command of reasonableness. Anti-slavery crusaders inserted into the Constitution the word “equal,” which the slaveholding Founders had omitted. The Fourth Amendment and all other Founding provisions should nowadays be read through the prism of Reconstruction, with its emphatic commitment to a republic of equal citizens. Airport searches targeted only at those citizens who look faintly Arabic are thus troubling; one way to symbolically affirm the equality of these Americans, while accommodating the need to be on the lookout for persons matching the description of specific suspects, might be to offer token compensation to passengers subject to special airport intrusions — say, free headsets or upgrades. This is how we currently show respect for those passengers — bumped off airline flights, for example — who endure special inconveniences to benefit their fellow passengers. In effect, we should try to spread the costs of fighting terrorism to the people more generally, rather than to the unlucky minority group members who are specially intruded upon. Finally, the Fourth Amendment tells us that its provisions shall not be violated. We must deter and punish unreasonable governmental intrusions. But the exclusionary rule is not the right way to do this. It punishes crime victims, who must watch grinning criminals walk free. It makes ordinary people less secure by unleashing thugs and thieves. It also provides no real remedy for innocent citizens targeted by government — there is no evidence to exclude in these cases. Thus, the Founders sensibly relied on systems of civil remedy rather than criminal exclusion to give the Fourth Amendment teeth. Such systems could be made to work again today, if judges and libertarians were willing to think creatively. Reasonableness, security, popular sentiment, bodily dignity, privacy, free expression, equality, deterrence — these are the true Fourth Amendment values that should organize democratic debate about search and seizure policy in the difficult days ahead. The Constitution does not give us all the answers, but, when read carefully, it helps us ask the right questions. Akhil Reed Amar is Southmayd Professor of Law at Yale University and author of “The Bill of Rights: Creation and Reconstruction.” He can be reached at [email protected]

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