by Stephen J. Schulhofer. Oxford University Press, 2012. 199 pp. Cloth $21.95. ISBN 978-0-19-539212-8
Reviewed by Don Crowley, Department of Political Science, University of Idaho.
Crowley [at] uidaho.edu
This is a very good and readable book and a very useful addition to Oxford’s Inalienable Rights series. Stephen Schulhofer, the Robert McKay Professor of Law at New York University, skillfully combines an historical overview of the purposes and functions of the Fourth Amendment with a reasonably lively account of how the U.S Supreme Court has steadily abandoned many of the core principles embedded in the Fourth Amendment. This, of course, is not a new story and for those who have followed the Court’s approach to the Fourth Amendment and Schulhofer certainly isn’t advancing an argument that hasn’t been voiced before. Indeed Justice Brennan proclaimed in 1984 that the Court’s “victory over the Fourth Amendment was now complete.” (U.S v. Leon, 1984, Justice Brennan dissenting). Brennan’s comment was perhaps overstated in 1984 but Schulhofer’s account skillfully documents the Court’s continuing assaults on the Fourth Amendment’s core principles. Anyone looking for a short but persuasive argument detailing the Court’s “victory over the Fourth Amendment” should consider this work.
Professor Schulhofer begins by advancing the argument that too many people believe that the Fourth Amendment is primarily designed to “protect criminals or to shield information that is at best disreputable” (p.11). Those who see themselves as good law-abiding citizens see little value in the Fourth Amendment because they have nothing to hide. While Schulhofer offers no empirical support suggesting how many people really believe that the Fourth Amendment is of no value to them, he is probably right that too many neglect the larger function that the Fourth plays in preserving an open society. Schulhofer emphasizes that “no less than freedom of speech or the press, protection from unwarranted government surveillance ranks among these core liberties that are essential to democracy” (p.13).
In the second chapter Schulhofer recounts how the Fourth Amendment grew out of the English common law tradition of resisting “general warrants” carried out by an executive without judicial approval. The opposition to such general warrants carried over to the American colonies as seen in the outcries against “writs of assistance” aimed at enforcing unpopular British laws. This opposition to general searches or fishing expeditions unmoored from evidence linking a particular person to a particular crime ultimately became the cornerstone of the Fourth Amendment. Schulhofer argues that the “peculiar structure” of the Fourth Amendment gives rise to part of our modern interpretative problem. While the second part of the Amendment clearly asserts [*233] that warrants can only be issued by a judge (“neutral magistrate”) on the basis of probable cause and must identify the places and things to be searched, the opening clause only speaks to not violating the people’s right against “unreasonable searches and seizures.” Thus the possibility arises that a search can be “reasonable” without having first obtained a warrant. The irony here is that if it is not necessary to get a warrant based on probable cause then why would government officials ever get one. It would always be easier to avoid obtaining a warrant and simply argue later that a search was “reasonable.” One answer would be that what makes a search “reasonable” is obtaining a warrant based upon probable cause. While the Court has never firmly adhered to that position the typical answer to this puzzle has been to argue that the general rule is to obtain warrants based upon probable cause while acknowledging that sometimes it isn’t reasonable to insist on a warrant. Or, as Justice Stewart put it in Katz, “searches conducted outside the judicial process, without prior approval by judge or magistrate, are per se unreasonable under the Fourth Amendment – subject only to a few specifically established and well-delineated exceptions” (Katz v. U.S, 1967).
So an important question becomes how varied and how broad are these exceptions? As Schulhofer argues, the Court has generally adhered to the warrant rule in searches inside the home but has increasingly abandoned a concern with warrants in other settings. Some of this is familiar territory and non-problematic. No one expects police to get a warrant in “hot pursuit” of a suspect and certainly no one wants the police to get a warrant to obtain access to a bomb when there is evidence that it is in a car along a parade route. Still, despite the Courts assertion in Katz that the Fourth Amendment protects “people not places”, the Court has found ways to avoid applying the full protection of the Fourth Amendment to a growing number of situations. Some of these exceptions are to the warrant requirement (automobiles), while others are to probable cause or even reasonable suspicion (stop & frisk, drug tests, and other administrative or so called “special needs” searches).
The strength of Schulhofer’s book is his ability to provide succinct summaries of Court decisions in a wide variety of search and seizure areas and still maintain a flowing narrative of the Court’s gradual abandonment of key Fourth Amendment principles. Thus, we find nice chapters on the Court’s application of the Fourth Amendment in public places, administrative searches, wiretapping, eavesdropping in the information age, and issues related to national security. Schulhofer’s discussion of all of these issues is timely and persuasive. I would not hesitate to assign any of these chapters, or indeed the entire book, for my civil liberties course.
Schulhofer’s account of the manner in which the Court has failed to respond to issues related to the new information age is particularly compelling. He strongly criticizes the Court’s increasingly narrow and largely undefined notion of what constitutes a “legitimate expectation of privacy” in this technological era. It has been far too easy for the Court to pronounce that one has a “lesser expectation of privacy” in a [*234] particular setting. Schulhoferman notes that in the Court’s view what we turn over to third party actors doesn’t warrant any protection at all since an individual has chosen to reveal this information to others (p.126). He argues that “to treat information conveyed to a trusted intermediary, under promise of confidentiality, as if it had been posted on a public billboard is to make nonsense out of the Fourth Amendment.” (p.127). In a world where participation through communication technologies is virtually required if one is to be a full participant in civil society the Court seems to be saying that the price of admission is to give up any notion of privacy. As Schulhofer notes, the Fourth Amendment should be seen as protecting these third party transactions – not as irrelevant to them. “The Fourth amendment was designed to nurture and support civic life, not to provide an alternative to it” (p.132).
My only concern is in Schulhofer’s account of why the Court has failed to provide a strong defense of the Fourth Amendment. Schulhofer provides several explanations. He chastises the Court for adhering to 18th century versions of common law without recognizing the larger purposes behind the Fourth. “This sort of ‘originalism,’ tied to a literal version of the original rule, not to its underlying principle, actually defeats rather than furthers the objectives that we know the Framers had in mind” (p.53). While Schulhofer favors “adaptive originalism” (a term that he doesn’t adequately explain), he notes that the Court is willing to abandon old common law rules when it is necessary to meet the needs of law enforcement but tends to avoid “adaption when that approach would restrict policy discretion” (p.174). In a similar vein he criticizes the Court’s apparent “perception that police officers can be trusted to exercise discretion fairly without close oversight” (p.175). These tendencies, Schulhofer argues, undermine the central function of the Fourth Amendment, which isn’t just to protect privacy but rather to serve as an “essential buffer between outsiders of all sorts and the power of the state” (p.179). From this perspective the Fourth Amendment is crucial since “the ability to control what we reveal about ourselves and to whom is essential for having a sense of personal peace, for trying out new ideas, and for developing our potential” (p.178).
Perhaps it is just because I’m a Political Scientist who cares about rights while Schulhofer is a Law Professor who cares about rights, but I find it surprising that, for the most part Schulhofer’s account pays very little attention to politics. His critique centers on the legal logic employed by the Court and largely ignores the attitudinal predisposition of Justices as well as the political culture in which the Court functions. He does mention, the “war on drugs”, and the “war on crime” and isn’t totally unaware of differing attitudes towards “law and order”, but political explanations play almost no role in his analysis. He rightly questions how the Court went from allowing a “frisk” based on less than probable cause in Terry v. Ohio (1968) to allowing the police to chase a teenager running away from them with no other evidence in California v. Hodari D (1991), but the analysis only questions the Court’s logic and nowhere notes that between these two cases Republican Presidents, responding to “law and order platforms”, made nine [*235] consecutive appointments to the Supreme Court. What the late, Stuart Scheingold once referred to as the “politics of law and order” doesn’t show up in Schulhofer’s discussion. Certainly the case can be made that including a more complex political analysis would be a different book, or at least a vastly longer one, and that Schulhofer’s sustained critique of the Court’s shrinking of the Fourth Amendment stands on its own. In many ways it does, but to me his account would be a more compelling if the linkage between the Court’s decisions and the rest of our political system hadn’t remained so obscure.
Scheingold, Stuart A. 2011 (1984). The Politics of Law and Order: Street Crime and Public Policy. New Orleans, LA: Quid Pro LLC.
California v. Hodari D 499 U.S. 621 (1991).
Katz v. United States 389 U.S. 347 (1967).
Terry v. Ohio 392 U.S. 1 (1968)
United States v. Leon 468 U. S. 897 (1984)
Copyright 2013 by the Author, Don Crowley