More Essential than Ever: The Fourth Amendment in the Twenty First Century PDF
Preview More Essential than Ever: The Fourth Amendment in the Twenty First Century
more essential than ever other books in the series Not a Suicide Pact The Constitution in a Time of National Emergency Richard A. Posner Supreme Neglect How to Revive Constitutional Protection for Private Property Richard A. Epstein Out of Range Why the Constitution Can’t End the Battle over Guns Mark V. Tushnet Unfi nished Business Racial Equality in American History Michael J. Klarman Is There a Right to Remain Silent? Coercive Interrogation and the Fifth Amendment after 9/11 Alan M. Dershowitz The Invisible Constitution Laurence H. Tribe Uninhibited, Robust, and Wide-Open A Free Press for a New Century Lee C. Bollinger From Disgust to Humanity Sexual Orientation and Constitutional Law Martha C. Nussbaum The Living Constitution David A. Strauss Keeping Faith with the Constitution Goodwin Liu, Pamela S. Karlan, Christopher H. Schroeder Cosmic Constitutional Theory J. Harvie Wilkinson III 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 Oxford University Press is a department of the University of Oxford. It furthers the University’s objective of excellence in research, scholarship, and education by publishing worldwide. Oxford New York Auckland Cape Town Dar es Salaam Hong Kong Karachi Kuala Lumpur Madrid Melbourne Mexico City Nairobi New Delhi Shanghai Taipei Toronto With offi ces in Argentina Austria Brazil Chile Czech Republic France Greece Guatemala Hungary Italy Japan Poland Portugal Singapore South Korea Switzerland Thailand Turkey Ukraine Vietnam Oxford is a registered trademark of Oxford University Press in the UK and certain other countries. Published in the United States of America by Oxford University Press 198 Madison Avenue, New York, NY 10016 © Oxford University Press 2012 All rights reserved. No part of this publication may be reproduced, stored in a retrieval system, or transmitted, in any form or by any means, without the prior permission in writing of Oxford University Press, or as expressly permitted by law, by license, or under terms agreed with the appropriate reproduction rights organization. Inquiries concerning reproduction outside the scope of the above should be sent to the Rights Department, Oxford University Press, at the address above. You must not circulate this work in any other form and you must impose this same condition on any acquirer. 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
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