By Stephen J. Schulhofer, Oxford University Press, Oxford and New York, N.Y. 199 pages, $21.99
For many Americans, including lawyers, the Fourth Amendment to the Constitution has at best secondary significance. As law-abiding citizens with mainstream political views, they see themselves as having nothing to hide. Such persons regard the amendment’s prohibition against “unreasonable searches and seizures” and its requirement of specificity in search and arrest warrants as no more than a shield for criminals, terrorists, fanatics and the like. In More Essential Than Ever, Professor Stephen J. Schulhofer of New York University Law School disagrees. His views give cause for concern.
In his introduction the author clears up what he sees as a misconception about the amendment. It protects not just secrecy, he maintains, but privacy, a word that does not appear in its text. He defines it as “personal autonomy,” protection “from unjustified government actions that disturb our peace and tranquility, not only from those that interfere with secrecy.” More than once he quotes Justice Louis D. Brandeis, who, dissenting in Olmstead v. United States (1928), named “the right to be let alone” as “the right most valued by civilized men.”
In his study, Schulhofer rejects the originalism that would limit the scope of the Fourth Amendment to the particular searches and seizures that its adopters had in mind. How, he asks, could men of the late eighteenth century foresee the complexities of twentieth and twenty-first century life? How could they even imagine wire-tapping, aerial, electronic and GPS surveillance and the other technological developments that have facilitated and expanded governmental investigatory capabilities?
The author calls instead for “adaptive originalism, tied not to original rules but to original principles.” Throughout the book he deplores the inroads that have been made on those principles, safeguards that the Founders put in place “out of bitter experience in the suppression of political dissent.”
The book analyzes a number of ways in which, in the author’s view, the judiciary, particularly the U.S. Supreme Court, has lost sight of the principles that guided the drafting and adoption of the Fourth Amendment. Today, he argues, “Fourth Amendment safeguards no longer ensure the opportunities for personal security that the Framers considered essential for individual freedom and political democracy.”
The Supreme Court’s “third-party” doctrine provides Schulhofer with what he considers a prime example of the erosion of Fourth-Amendment rights. The doctrine says that only when a party in possession of information or other evidence has a “reasonable expectation” of secrecy will that material enjoy the amendment’s protection. “To insist that information is private only when it remains completely secret is preposterous,” he contends.
As an example of the ridiculous results that application of the third-party doctrine can lead to, the author cites California v. Ciraola (1986). The Supreme Court there upheld, Justice Lewis Powell dissenting, the police’s search without a warrant, from a small plane at 1,000 feet, of a residential backyard to determine whether the occupant was growing marijuana. By reasoning that Schulhofer calls “inexcusably formalistic,” the Court held that the occupant had no reasonable expectation of secrecy since his premises could be viewed from any commercial aircraft that chanced to pass overhead. A similar holding decided Florida v. Riley (1989).
Other areas of law that demonstrate what he sees as dilutions of the rights protected by the Fourth Amendment command the author’s attention. One of them, the “administrative” search, excuses the absence of a warrant when a search is made for a valid public purpose by public officials not primarily concerned with the collection of evidence for a criminal conviction. Fire-safety inspections might fall within this category. “Administrative searches with flexible prerequisites,” the author concedes, “are sometimes necessary and legitimate.” Yet, he goes on, the rule permitting administrative searches can be stretched to the point of danger. In New York v. Burger (1987), for example, the Supreme Court upheld a New York statute that permitted unannounced, warrantless searches of the business premises, including offices, of automobile scrap companies to help in the tracing of stolen vehicles. The court extended the rule in that case to private homes in Griffin v. Wisconsin (1987), where a probation officer was held entitled to search, without a warrant, the home of a convict on probation on the bare suspicion that illegal guns might be there.
In times like these, a discussion of the Fourth Amendment must extend to its impact on the danger of terrorism. Schulhofer devotes a chapter to the subject and goes into a multiplicity of its aspect in detail. He observes, for one, that in the detention of hundreds of civilian “enemy combatants” at Guantánamo Bay without access to the courts, “the basic principles of constitutional government underlying the Fourth Amendment…were disregarded for far too long.” He calls the Foreign Intelligence Surveillance Act of 1978, notwithstanding its amendment in 2008, “an overbroad and unnecessary concession to security fears” and “an unjustifiable erosion of constitutionally mandated safeguards.” He goes into other areas that convince him that “our civil liberties do not conflict with our safety and we cannot ‘balance’ one against the other.”
For the above and for many other reasons, the author concludes that “Everyone needs the Fourth Amendment.” Time and again he emphasizes that that includes those of us with “nothing to hide.” Quoting from George Orwell’s novel 1984, he says that true democracy cannot exist when the individual citizen has reason to believe that “Big Brother is watching you.” It is the opinion of this reviewer that Professor Schulhofer’s ideas must be taken seriously.
Walter Barthold is retired from the practice of Law in New York City.