More Essential than Ever: The Fourth Amendment in the Twenty First Century

214 Pages·2012·1.33 MB·English

by  Stephen J. Schulhofer

more essential than ever
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I N A L I E N A B L E R I G H T S S E R I E S
. . .
series editor
G eoffrey R. S tone
Lee C. Bollinger Goodwin Liu
President Professor of Law
Columbia University University of California at Berkeley
School of Law
Alan M. Dershowitz
Felix Frankfurter Professor of Law Michael W. McConnell
Harvard Law School Richard and Frances Mallery
Professor of Law
Richard A. Epstein Stanford Law School
Laurence A. Tisch Professor of Law
New York University School Martha C. Nussbaum
of Law Ernst Freund Distinguished Service
Professor, Philosophy, Law, Divinity,
Pamela S. Karlan South Asian Studies
Kenneth and Harle Montgomery The University of Chicago
Professor of Public Interest Law
Stanford Law School Richard A. Posner
Judge U.S. Court of Appeals for the
Alexander Keyssar Seventh Circuit
Matthew W. Stirling, Jr., Professor of
History and Social Policy Jack N. Rakove
JFK School of Government, Harvard William Robertson Coe Professor of
University History and American Studies
Stanford University
Michael J. Klarman
Kirkland & Ellis Professor of Christopher H. Schroeder
Law and History Charles S. Murphy Professor of Law
Harvard Law School Duke Law School
Larry D. Kramer Stephen J. Schulhofer
Richard E. Lang Professor of Robert B. McKay Professor of Law
Law and Dean New York University School of Law
Stanford Law School
Geoffrey R. Stone
Lawrence Lessig Edward H. Levi Distinguished
Edmund J. Safra Professor of Law Service Professor
Harvard Law School University of Chicago Law School
Kathleen M. Sullivan J. Harvie Wilkinson III
Stanley Morrison Professor of Law Judge U.S. Court of Appeals for the
Stanford Law School Fourth Circuit
Laurence H. Tribe Kenji Yoshino
Carl M. Loeb University Professor of Law Chief Justice Earl Warren Professor of
Harvard Law School Constitutional Law
New York University School of Law
Mark V. Tushnet
William Nelson Cromwell Professor of Law
Harvard Law School
Geoffrey Stone and Oxford University Press gratefully acknowledge the interest and
support of the following organizations in the Inalienable Rights series: The ALA The
Chicago Humanities Festival The American Bar Association The National Constitution
Center The National Archives
More Essential Than Ever
· · ·
the fourth amendment in the
twenty-first century
S tephen J. S chulhofer
1
1

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Library of Congress Cataloging-in-Publication Data
Schulhofer, Stephen J.
More essential than ever : the Fourth Amendment in the
twenty-fi rst century / by Stephen J. Schulhofer.
p. cm.
Includes bibliographical references and index.
ISBN 978-0-19-539212-8 (hardback)
1. United States. Constitution. 4th Amendment
2. Privacy, Right of—United States.
3. Searches and seizures—United States
4. Exclusionary rule (Evidence)—United States I. Title.
KF9630.S38 2012 345.73'0522—dc23 2011047120
1 3 5 7 9 8 6 4 2
Printed in the United States of America
on acid-free paper
Contents
· · ·
Editor’s Note
ix
Acknowledgments
xiii
chapter one
Introduction
3
chapter two
Our Fourth Amendment Tradition
22
chapter three
Searches and Arrests
42
contents
chapter four
Policing Public Spaces
71
chapter five
The Administrative State
93
chapter six
Wiretapping, Eavesdropping, and the Information Age
115
chapter seven
The National Security Challenge
144
chapter eight
The Fourth Amendment Today:
Misunderstood but Indispensable
170
Notes
181
Further Reading
191
Index
193
[viii ]
Editor’s Note
· · ·
We hold these truths to be self-evident, that all men are created
equal, that they are endowed by their Creator with certain unalien-
able Rights. . . .
—the declaration of independence
. . .
The Fourth Amendment is as clear as can be: “The right of the
people to be secure in their persons, houses, papers, and effects
against unreasonable searches and seizures, shall not be violated.”
As is often the case in law, however, what seems clear is not. What
is a “search”? Is it a “search” for the government to track an indi-
vidual’s movements using a GPS? Is it a “seizure” for a police
offi cer to stop a person on the street to ask her questions? Is it a
“seizure” for a police offi cer to use a parabolic microphone to over-
hear a conversation two people have on a park bench? Is a conver-
sation a “person, house, paper, [or] effect”? And when is a search
or seizure “unreasonable”? Is it “unreasonable” for government to