Book Review: More Essential Than Ever: The Fourth Amendment in the Twenty-first Century

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Book Review--More Essential Than Ever: The Fourth Amendment in the Twenty-first Century, By Stephen J. Schulhofer.  Oxford University Press, 2012. 199 pages, hardcover, $21.95.

The Fourth Amendment to the United States Constitution prohibits unreasonable searches and seizures, requiring a finding of probable cause before a search can take place.  The amendment allows for governmental invasion of privacy but it also requires that it be justified and that the government be held accountable for its actions.  Seemingly straightforward when originally drafted by our Founding Fathers, technological advances, changes in police work, and threats to national security have had a profound effect on the Court’s Fourth Amendment jurisprudence.  In More Essential Than Ever: The Fourth Amendment in the Twenty-first Century, author, Stephen J. Schulhofer, takes the reader through a concise retelling of Fourth Amendment jurisprudence, hoping to reconcile the historically held belief that governmental intrusions into the public’s private matters cannot be allowed in a free society; even when so doing my lead to the increased risk of danger and harm to the public.  Accordingly, Mr. Schulhofer argues that the protections provided by the Fourth Amendment as it was originally conceived can be, should be and must be adhered in today’s modern society.  A person’s right to privacy and the “right to be secure in their persons, houses, papers, and effects”[1] is that essential to democracy.

After an introduction that outlines the four myths that fuel skepticism about the Fourth Amendment[2], the author begins, in Chapter Two, by discussing the historical tenets of the Fourth Amendment, outlining the Framers strongly held belief that unconstrained governmental discretion cannot be allowed and that judicial oversight is needed to prevent improper governmental actions. In this chapter, Mr. Schulhofer argues that the present day courts should focus on the principles and values laid out by the Court in early Fourth Amendment jurisprudence when deciding cases, rather than relying on a strict adherence to the specific rules established by the Court’s Fourth Amendment jurisprudence.  The author calls this “adaptive originalism.”[3]  This concept is explored further in Chapter 3, as well as in the next chapter where he examines the changing nature of everyday police work.   In both of  these chapters the author discusses the exceptions to the Fourth Amendment that were necessitated by the nature of illegal activity and the need for the police to protect the public from criminal activity while still adhering to the spirit of the Fourth Amendment.  The author continues to discuss the need for flexibility in Chapter 5, when he discusses administrative searches, those searches that take place outside the realm of traditional police work.  In these special circumstances, for example, searches done to insure public health and safety, the Court has relaxed the traditional warrant and probable cause requirements.  Although this allows for flexibility, the author argues that this threatens the traditional notions of privacy requiring the need for governmental accountability and oversight.  Again, the author is calling for flexibility while still recognizing the need for actions that promote the Fourth Amendments original ideals.

In Chapter 6, the author examines the privacy implications resulting from the development of modern technologies, including the effect wiretapping, electronic eavesdropping and increased access to personal information has had on our Fourth Amendment jurisprudence.  Chapter 7 looks at national security and how the events of 9/11 have affected Fourth Amendment jurisprudence.  In this final chapter, Mr. Schulhofer discusses the effect the events of 9/11 had on our Fourth Amendment rights, arguing that the assumption that security and prevention of future tragedies outweighs the protections afforded to us by the Fourth Amendment is misconceived. All decisions have risk and to alienate the millions of law abiding Muslims in the U.S. in order to protect us from the few that mean us harm is more damaging.  Governmental transparency and checks on governmental power will generate the societal trust needed to better protect our society from the dangers we now face.[4]  In conclusion, Mr. Schulhofer argues in the last chapter that despite the many societal advances and changes the Framers couldn’t possibly have anticipated when the Fourth Amendment was drafted, the notion of individual privacy continues to be the most vital component of individual freedom and democracy, making the protections offered by the Fourth Amendment are vital in today’s society.

More Essential Than Ever: The Fourth Amendment in the Twenty-first Century, is an excellent resource for any undergraduate or academic law library.  It is an excellent starting point for students or scholars doing research involving the Fourth Amendment.  The author provides the reader with an excellent section of Notes at the end of the book, with citations to relevant cases discussed by the author as well as an excellent index allowing subject entry into the book.  Finally, the author also includes a “Further Readings” list with suggestions to other relevant resources.  This book provides an excellent history of the Fourth Amendment and convincingly argues for a flexible approach when applying Fourth Amendment protections in today’s increasingly complex society.

 

Christine I. Hepler is the Interim Director of the Garbrecht Law Library at the University of Maine School of Law.



[1] U.S. Const. amend. IV.

[2] These myths revolve around changes in the conception of privacy and how this affects the application of the Fourth Amendment.  See pages 6-15 for the author’s detailed discussion on these issues.

[3] See page 44 for the author’s definition of “adaptive originalism.”

[4] See p. 168.

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