What Is the Essential Fourth Amendment?

Article excerpt

What Is the Essential Fourth Amendment? MORE ESSENTIAL THAN EVER: THE FOURTH AMENDMENT IN THE TWENTY FIRST CENTURY. By Stephen J. Schulhofer. New York, New York: Oxford University Press, 2012. 216 pages. $21.95.

I. Introduction

To the average American, the Fourth Amendment probably brings to mind a jumbled notion of warrants, probable cause, and exclusion of illegally seized evidence. Compared to the First Amendment, Miranda's right to remain silent,1 the jury trial guarantee,2 and the Equal Protection Clause's prohibition on racial discrimination,3 the right to be secure from unreasonable searches and seizures is not well understood by most of the populace, either in its precise scope or its rationale.

Some confusion about specific Fourth Amendment prohibitions is tolerable and understandable. After all, it is the job of the police and judges, not Joe Q. Citizen, to apply search and seizure law, and even these government actors are more than occasionally flummoxed by the rules. Public ignorance about the Amendment's rationale is perhaps just as excusable, but it is much more unfortunate. People do not always understand why the law appears to prefer a judge's opinion over that of the streetwise cop, why a person who has nothing to hide should care about official surveillance, or why a person who does have something to hide should be able to exclude evidence of guilt because the police violated some arcane rule. As a result, citizens are often outraged by judicial opinions that free defendants on "technicalities,"4 and seldom are bothered by those court decisions-much more prevalent in the past several decades-that curtail liberty and privacy in the name of crime control and national security.

Stephen Schulhofer sees this as a problem, and in More Essential Than Ever: The Fourth Amendment in the Twenty-First Century5 he tries to redress it. Pitched toward a general audience rather than the legally trained, the book provides a passionate defense of the "essential" Fourth Amendment that, as Schulhofer would have it, the Founders intended but the current Supreme Court has ignored. Much of what is said in this book will not be new to Fourth Amendment scholars. But the work's straightforward eloquence provides a strong, popularized brief for interpreting the Fourth Amendment as a command that judicial review precede all nonexigent police investigative actions that are more than minimally intrusive. Schulhofer argues that this interpretation is not only consistent with the intent of the Framers, but remains a crucial means of discouraging government officials from harassing innocent people, promoting citizen cooperation with law enforcement efforts, and protecting the speech and association rights that are indispensable to a well-functioning democracy.6

Schulhofer's liberal take on the Fourth Amendment is largely persuasive. This Review points out a few places where Schulhofer may push the envelope too far or not far enough. But, these quibbles aside, More Essential Than Ever is a welcome reminder for scholars and the public at large that the Fourth Amendment is a fundamental bulwark of constitutional jurisprudence and deserves more respect than the Supreme Court has given it.

II. Judicial Review as a Means of Protecting Privacy and Limiting Discretion

More Essential Than Ever is composed of eight chapters, the first two of which set up the rest of the book. Chapter 1 sketches out the thesis that was just described. In the course of doing so, Schulhofer describes his views on the core purpose of the Fourth Amendment. While he appears to accept the Supreme Court's stance that the scope of the Fourth Amendment is defined primarily by reasonable expectations of privacy,7 he reminds us that the Amendment explicitly speaks not of privacy but of "the right of the people to be secure in their persons, houses, papers and effects."8 Thus, he reasons, the Fourth Amendment is not about privacy in the sense of keeping secrets, but rather protects privacy as a means of ensuring people are secure in their ability to control information vis-à-vis the government. …