The Fourth Amendment Gone Wild: Part I

cross-posted at www.downwithtyranny.com

The Fourth Amendment reads: "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."

The Fourth Amendment is at the same time procedurally specific and substantively open-ended. In terms of checks and balances, the Founders were very particular about searches and seizures, due to their immediate experience with the overzealous policies of King George in pursuit of potential tax-evaders. With the warrant procedure, they placed the regulation of searches in the hands of judges or magistrates, creating a fundamental check and a most important separation of powers.

The substance of the Fourth Amendment vindicates the "living tree" metaphor, invoked by non-strict-constructionists as a rationale for giving contemporary meaning and relevance to vague provisions ("due process" being the most inevitable question-begger). With the probable cause requirement, the Founders intentionally began a never-ending conversation about the appropriate balance between the interests in law enforcement and those in privacy.

I'd like to delve into the Fourth Amendment in a series of posts. This body of law is so interesting, relevant to our current "constitutional crisis," and applicable to us all, that every progressive should be familiar with it. The goal is to inspire a good discussion of technology, privacy, and the proper balance between regulating crime and regulating cops (the balance between regulation of individuals and regulation of the state, no less).

Despite its subtleties, interpretation of the Fourth Amendment should be fairly simple: abide by the warrant procedure, and measure probable cause by explicitly balancing law enforcement against privacy, giving due weight to prior practice and modern exigencies. As for "searches" and "seizures," those terms should be pretty self-explanatory.

However, thanks mostly to the Berger and Rehnquist courts, the Fourth Amendment has become a most tortured, nuanced and Orwellian body of constitutional law – a paradoxical universe where a search is not a "search," a seizure is not a "seizure," "probable cause" is riddled with new-found exceptions, and "warrants," (no longer important enough to be capitalized), are all but optional. (notwithstanding our justifiable anger over warrantless wiretapping, "warrantless" is really an exception that has swallowed the rule).

Exhibit A: Searches that are not "searches"

With expanding technologies, the judicial system needed a way to deal with new, nontraditional investigative techniques, such as phone taps and wires. Enter the "reasonable expectation of privacy" standard, first adopted in Katz v. United States, 389 U.S. 347 (1967), where the Court held that FBI agents, who had attached electronic listening devices to the outside of a phone booth, violated the Fourth Amendment rights of their suspect. Hence, the phrase is used by courts to delineate when a … umm… an investigative technique … is a "search" regulated by the Constitution. Initially, this standard seemed a promising way to ensure that technology didn't outpace our constitutional framework. Unfortunately, the standard was hijacked by judicial conservatives (along with the rest of the Constitution), and has become the principal vehicle by which the Court has brought the Fourth Amendment down to size. Even Justice Stevens, an otherwise reliable vote for liberty, has often jumped at the opportunity to narrow the textually-mandated judicial oversight of invasive police practices. (Perhaps this is the rare example of why he still considers himself technically a Republican).

Among others, the Court has found the following expectations of privacy unreasonable: the contents of our trash (just about everything we do is manifest in our trash – its not as if any of that is personal); our privately owned "open fields" (even when we post no-trespassing signs); the scents emanating from our vehicles only detectible by canines (because we should reasonably expect to be subjected to canine sniffs anywhere we go); and anything that could be seen by someone in a plane or helicopter that happens to be flying over our backyards . . . as long as they're at the minimum elevation required by the F.A.A. or other regulations. (?!?)

The only recent opinion where the Court has foregone the urge to shrink the Fourth Amendment was Kyllo v. United States, an opinion shockingly written by Justice Scalia. There, the Court held that the use of heat detecting devices on a person's home amounted to a search. Apparently, there is at least a reasonable expectation of privacy in when "the lady of the house draws her sauna." (Yes Justice Scalia really said that.)

Now, mind you, including a search within the purview of the Fourth Amendment means only that the police are required to have probable cause and, (theoretically), a warrant signed by a magistrate. And probable cause is a very low standard. Here's an example: I call the cops, and leave an anonymous tip that my neighbor has drugs in his red car, and will be driving home in his red car at 5:30pm. I know my neighbor has a red car, and I know he gets home from work at 5:30. I'm otherwise full of it. But the cops don't know that because I'm anonymous. They see my neighbor drive home in his red car at 5:30pm, and they have probable cause to search his car, and the resultant right to handcuff him and place him in the cruiser while they do it. (Don't get any ideas, people!)

So, with probable cause being the obvious textual basis for evolving the Fourth Amendment, and being traditionally easy to establish, what did the Court do? It defined some police activities right out of the Constitution. Remind you of anything the executive branch has done recently? Tactically, modern judicial conservatives and modern political conservatives are the same: rather than honestly, explicitly justifying its actions, both political and judicial conservatives take the slicker, more duplicitous approach of turning the operative terms on their heads, so that anyone not paying close attention hardly notices the change until its way too late. Meanwhile, the same conservatives have the gall to demonize the "activist judges" of the Warren Court, who reasonably concluded that "due process" needed some clarification. Ah well. I suppose there's some comfort in knowing that one thing (probably) hasn't changed: if the redcoats ever break down my door looking for black market tea or gunpowder, they may still require a warrant.

District of Columbia v. Heller

Abortion. Affirmative action. School prayer. Gun control. All examples of divisive constitutional issues which typically pit hard-line reactionaries against persons with more nuanced viewpoints. The Supreme Court, for better or worse, has played a pivotal role on most of these issues. In so doing, it has unwittingly provoked political reactions, creating a bounty of campaign issues for right-wingers over the years. Ultimately these issues galvanized social conservatives, paving the way for the ascendance of the wingnut movement. The obvious example of the Court's role in this regard is now the country's most endangered precedent: Roe v. Wade.

I'll admit, from a philosophical standpoint there is a legitimate argument that the Warren Court overstepped its bounds in some of its decisions, notwithstanding their sensibility and progressiveness. (In the matter of Roe v. Wade--actually a product of the Burger Court, which decided it by a 7-2 majority that included Earl Warren's Republican successor as chief justice, Warren Burger--many law students leave their constitutional law class shocked and dismayed to discover that the opinion really was one of the most reckless pieces of legal reasoning ever to come down from the Supreme Court, laying out a menu of potential policy justifications completely unhinged to any specific constitutional right.)

But whatever its questionable merits as a matter of constitutional law, the occasional overzealous decision has the authority of precedent and is bolstered over time by the mandate of its consistent application. And whatever its validity as a philosophy, the "judicial conservative" viewpoint is naught but a subterfuge when it's only selectively espoused and applied and its fair-weather proponents are merely cynical, opportunistic politicians.

This intellectual dishonesty is exposed in cases where the conservative judicial philosophies clash with conservative political objectives. Typically in these cases politically "conservative" Supreme Court justices have abandoned their judicial "conservatism."

One of the most telling cases this term will be District of Columbia v. Heller. It pits respect for precedent, and the intent of the constitutional framers (essential aspects of the strict constructionist and originalist judicial philosophies), against the NRA's pipe dream--a vast, unprecedented expansion of the right to bear arms. Moreover, unlike with most divisive constitutional issues, the Court has played no role in expanding or diminishing the scope of the Second Amendment until now. The Roberts Court can't pretend that it's merely "correcting" an "activist" decision from the Warren court.

The issue, as phrased by the Court, is whether D.C.'s handgun ban "violates the Second Amendment rights of individuals who are not affiliated with any state-regulated militia, but who wish to keep handguns and other firearms for private use in their homes." Since our Nation's founding, the Second Amendment was understood to encapsule a collective right, a right to bear arms explicitly tied to the maintenance of state militias, and historically bound to the revolutionary sentiment that a people should be allowed to "alter or abolish" their government. However, in 2007, the D.C. Court of Appeals became the first federal appeals court to ever strike down a firearm ban based on the Second Amendment. It was only the second time a court interpreted the right to bear arms as an individual rather than a group right.

The Supreme Court will review the decision, agreeing to review the scope of the Second Amendment for the first time since 1939. In that case, United States v. Miller, the Court held that the Second Amendment protects only the ownership of weapons appropriate for use in an organized militia, and that sawed-off shotguns don't qualify.

The Supreme Court has consistently refused to revisit this issue, but the Roberts Court hasn't gotten its hands on a Second Amendment case until now. What will it do? On the one hand, a federal appeals court has never before ignored the Miller precedent in striking down a gun law. So, hopefully, the Supreme Court merely intends to reinforce the Miller precedent, and admonish the D.C. Court of Appeals to stand down. On the other hand, the Roberts Court has already displayed a breathtaking disrespect for precedent, and for "judicial conservatism." It may very well endorse the D.C. Circuit's interpretation, expanding the Second Amendment for the first time in history and striking down the D.C. handgun ban for good. Because easier access to guns is just what our blighted capital needs.

Will this be another case of conservative judicial activism? Another betrayal of the purportedly "objective" philosophy motivating the likes of Justices Scalia, Thomas, and Roberts--and underlying their criticisms of Warren Court precedents such as Roe? Most likely, the decision will come down to the views of Justice Kennedy, as usual. Perhaps he will overturn the D.C. Circuit, and uphold the handgun ban. Precedent, judicial conservatism, policy rationales, and an international consensus on gun control dictate that he do so.



cross-posted at www.downwithtyranny.com