We have begun the slide down the slippery slope. Where this ride ends is anyone's guess. But we may soon be asking of the Fourth Amendment what libertarians often ask of the Ninth Amendment: Where did it go?
The Fourth Amendment is fragile of necessity. It draws no bright line against the conduct of Government. Unlike the uncontroversial Third Amendment, which prohibits the quartering of soldiers in our homes, the Fourth merely proscribes "unreasonable" searches and seizures. But reason, we were reminded centuries ago by a Scottish philosopher, is and always shall remain a slave of the passions. We can yield liberty anytime we like.
I greet the news in this morning's New York Times about the Obama administration's retreat from the Fourth Amendment with a grim sense of foreboding. On the very day the administration announces the appointment of a new Supreme Court nominee, Elena Kagan, it also proclaims that the Fourth Amendment is for sale. This should sound a thunderclap for those who care about limits to government power. Is Kagan the emporer's new thug?
There Fourth Amendment is really quite brief: "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."
So who decides what is reasonable? Ultimately, the courts, and that's why kind of justices appointed to the Supreme Court matter so much. If a judge has never represented a person accused of a crime, or who is otherwise unpopular, then one's sense of the reasonable takes the cast of a law school dean or a government lawyer -- Elena Kagan's world. What is reasonable is the what serves those with power. Never mind that the colonists rebelled against a world of place keepers.
For the past decade, we've been on high alert about terror. We've declared war on non-state actors, a notion unconventional in the annals of international law, but perhaps necessary. We've also declared war on states that support terrorists. The wars linger on, with new enemies each day declaring war, in turn, on us and our values. We await the arrival of a retail suicide bomber, and count the near misses -- Detroit at Christmas, Times Square last month -- as signs of good fortune.
But surely chaos is coming. Indeed, I suspect chaos is already here, germinating quietly in sleeper cells that, like metastatic cancer, will one day erupt into lethal violence. I am afraid of the terrorists.
So what of the Fourth Amendment? What is reasonable for the government to do to combat my fear? How much liberty will I sacrifice in the name of security? This is the algorithm that defines the debate about reasonableness.
The Obama administration is now prepared to relax the requirement that a person subjected to a custodial interrogation be warned about his right to remain silent. This has long been a fantasy of the right. Why, we don't want criminals to have too many rights. Why not just bring back the third degree? Didn't Harvard's Alan Dershowitz, a professor of criminal defense, counsel that so-called "ticking time bomb" justifies extreme measures? When even the professariat runs scared, we are well past the point of alarm.
On an equally parallel and sinister track is the legislation proposed by Senators Lieberman and McCain to provide broader power for administrative power to strip a person of citizenship and, presumably, the rights secured by the Constitution. (Note to Senators: the rights secured to persons has not yet been circumscribed to mean mere citizens. But I am sure those pressing for immigration reform will find a way to empower government along that axis, too.) The Times report that the administration supports broader power to deprive folks of citizenship in summary fashion, as well. Hillary is said to like giving State Department a civic death penalty.
The Fourth Amendment is vulnerable. A leading case defining how it is to be interpreted requires not just that the person asserting the right have an expectation of privacy. Also required is that there be a broader societal commitment to protecting that right. You might think that the Government ought not to burst down your door and shoot your dog, for example. But unless enough people care, the Government can do so with impunity. I suspect in this country dogs have broader support than Moslems.
Arthur Schlesinger, Jr., wrote convincingly of great cycles in American history. Popular opinion swings along a vast arc from right to left and back again in the crazy corkscrew that defines our social and constitutional history. Barack Obama and the reawakening of a new McCarthyism? Who would have thought such a thing possible? But its looking more and more likely each day.
We get the Government we deserve. Apparently many Americans like the new regime just fine. This is some brave new world.