BOOKS OCTOBER 4, 2012
by Stephen J. Schulhofer
Oxford University Press, 216 pp., $21.95
I AM THE COPS. I pull you over on the road at night. You didn’t signal when changing lanes, I say. What I’m thinking is: you’re black. During the stop I shine a light into the car and spot some dope. I arrest you. Legal?
Legal. In Whren v. United States (1996), plainclothes narcotics officers in an unmarked car—not the types who spend their time enforcing stop signs and speed limits—pulled over a young black driver for making a turn without signaling. They found cocaine in the passenger’s seat. The Supreme Court held the stop to be perfectly legitimate, rejecting the defendant’s argument that the elaborate traffic code allows police to target almost any driver. The Court’s Fourth Amendment precedents, Justice Scalia wrote for the unanimous Court, “foreclose any argument that the constitutional reasonableness of traffic stops depends on the actual motivations of the individual officers involved.” This formalistic reasoning essentially dismissed the serious social issue of racial profiling. Driving while black, Scalia seemed to say, is not our problem.
Stephen Schulhofer, an eminent Fifth Amendment scholar at NYU Law School, deplores the Whren decision. He writes in his book that Whren removed most limits on police officers’ discretion on streets and highways. “For every instance involving a drug courier,” Schulhofer writes, “there are countless police actions that never make the newspapers or the criminal court docket—instances in which law-abiding citizens guilty of nothing more than a traffic infraction are subjected to an intrusive but ultimately fruitless roadside search.” More Essential Than Ever is a concise and engaging survey of Fourth Amendment law, although its warnings about the Amendment’s demise are hotter than they need to be.
With its prohibition of “unreasonable searches and seizures,” and its requirement that judges issue warrants only “upon probable cause,” the Fourth Amendment restrains police activity with judicial oversight: if probable cause exists, the police must apply to a judge or magistrate for a search or arrest warrant in most circumstances. Schulhofer returns to this framework again and again in his book. A liberal, Schulhofer disdains wooden originalism but is a strong believer in first principles: warrants and probable cause are written directly into the Fourth Amendment, and they matter. Instead of interpreting the Constitution based on what the founders supposedly intended at the time—the dubious and results-driven method favored by some conservatives—Schulhofer interprets it based on the touchstones written into the document itself. If a judge is not overseeing a police officer, he wants to know why. Call it big-picture originalism.
As Schulhofer explains, modern society, with its fast cars and slow bureaucracies, presents unique challenges to understanding and applying the Fourth Amendment. When the Bill of Rights was enacted, police forces were ad hoc affairs, and there were no cars, let alone telephones or wireless internet connections. The amendment sought to address the use of general warrants by British authorities to search colonists’ homes. Schulhofer describes a series of civil cases in the 1760s in which judges imposed stiff damage awards on such officers, in the process fueling a sense of grievance that helped provoke the American Revolution. The founders, he writes, “detested unrestricted government searches of the home.”
The modern Supreme Court has remained vigilant against searches in peoples’ homes—if only those. In cases such as Vale v. Louisiana (1970) and Minnesota >v. Olson (1990), the Court rejected the police’s efforts to circumvent the warrant requirement in searches of the home. In such cases, the justices display something like consensus by waving the “man’s-home-is-his-castle” banner—a flag stitched in the thread of civil liberty but held aloft by a pole of libertarianism. But outside the castle walls, the Fourth Amendment’s protective shield has grown steadily weaker since the days of the Warren Court. Schulhofer offers a clear and useful survey of major Fourth Amendment issues like warrants, stop-and-frisks, national security, and wiretapping. He even covers the latest term, discussing Court’s most recent major Fourth Amendment decision—United States v. Jones (2012), which invalidated officers’ use of a GPS device to track a suspect’s car. To Schulhofer, the Court’s decisions in recent decades have enabled a major erosion of liberty. Readers should follow him some ways to that conclusion, but not all the way there.
More Essential Than Ever is most persuasive in its criticism of decisions that permit exceptions to traditional Fourth Amendment requirements. In the 1970s, for instance, the Court held that citizens maintain no reasonable expectation of privacy over matters that they “disclose” to third parties, like their banks and telephone companies. Thus the government may constitutionally demand from those businesses banking records and lists of phone numbers called. (Federal statutes provide some protection against such demands.) In our information age, these precedents portend a huge hole in our Fourth Amendment rights—what information today is not “disclosed” to a third party as part of routine electronic communication, social networking, or business activity? As Schulhofer writes, “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 of the Fourth Amendment.”
Schulhofer is less convincing in the area of “administrative” searches. Such searches are not driven primarily by law enforcement goals and therefore are not subject to traditional Fourth Amendment warrant requirements; they survive if they are “reasonable.” He lambasts the Court for relaxing Fourth Amendment protections in public schools. In Vernonia School District v. Acton (1995), the Court upheld an Oregon school district’s rule that all students participating in high school sports must undergo random urinalysis testing. The program had the overwhelming support of district parents, and was meant to address a serious drug epidemic. Schulhofer calls the testing “preposterously overbroad,” and attacks one of its rationales: the district’s desire to avoid student injury on the playing field. He contends that this concern does not apply to low-impact sports like golf, and suggests that the district would have done better merely to scan the field for tipsy athletes. This is silly—and it ignores other indications that the program was reasonable: the athletes’ voluntary adherence to rules such as minimum GPAs and pre-season physical exams, the district’s desire to prevent the spread of a pervasive drug culture in sports to its students, and the example that student-athletes set for other children.
Similarly, Schulhofer frets over highway sobriety checkpoints, which the Court approved in Michigan Department of State Police v. Sitz (1990). Here, as elsewhere, he is slightly myopic in considering first principles. He is right to note that today’s modern professionalized police forces—which can establish sweep-like checkpoints—were unknown to the founders, and therefore require greater oversight than their forebears. But that coin has two sides. The problems that today’s police must confront—widespread drunk driving, sophisticated criminal networks, kids doping in school—were equally foreign to the founders, and authorities require greater latitude to solve them than Schulhofer is willing to acknowledge. Balancing such considerations will always involve value judgments and disagreements in particular cases. Yet it pays to be vigilant, and Schulhofer is right that the balance is tipping in the wrong direction—just not as far as he says.
Michael O’Donnell is a lawyer who lives in Evanston, Illinois. His writing has appeared in The Nation, the Los Angeles Times, and Washington Monthly.