Amar's Bill of Rights: The Misappropriation of the Fourth Amendment

The Fourth Amendment, in many respects, is the closest thing to a right to privacy that can be found in our federal Constitution. This Amendment has become the bulwark of personal security and liberty in our country, even as we struggle to understand the limits our security should place on our liberty and the imposition that technology places on both. But in Chapter 4 of his book The Bill of Rights, Akhil Reed Amar argues that the Founders were not primarily building an individual right to security and privacy in the Fourth Amendment, rather they were providing another tool for civil juries to keep oligarchical and repressive governments in check.

Let's walk through Amar's development of his argument because, even if we do not wish to adopt the Founders' interpretation of the Fourth Amendment -- after all, there is a place for a right to privacy in our constitutional structure -- there are principles the Founders' view of the Fourth Amendment have to teach us.

The Fourth Amendment reads as follows:

 

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.

The use of the word "people" in this Amendment rings with echoes of the context of the other Amendments employing this word -- the First, Second, Ninth, and Tenth Amendments. This is the clarion call to the sovereignty of "We, the People of the United States." Amar imagines what the Amendment might mean for us if we take this popular sovereignty perspective alone in its interpretation:

 

On one reading, the amendment's language of "the people" could be read as reminding us that we must be especially watchful of government efforts to use search-and-siezure powers to interfere with people's political activities -- circulating petitions (literally the people's papers), attending political meetings (with the literal persons), assembling in a constitutional convention (which might be seen as a house of the people), and so on. But without more, this reading seems a bit too cute; surely, the main "houses" to be protected here are private abodes, not public assemblies.

Amar argues that the 1763 English case Wilkes v. Wood must have served as an influence for Madison:

 

Wood involved a famous cast of characters -- both the target of the government, John Wilkes, and the author of the opinion, Lord Chief Charles Pratt (soon to become Lord Camden), became folk heroes in the colonies.... Wilkes, a champion of the people and a member of Commons, had used the press to communicate with his constituents and criticize George III's ministry and majesty. When the government reacted by trying to use general warrants to suppress his political activity, breaking into his house and rummaging through his personal papers, Wilkes brought suit in Wood and successfully challenged the legality of those warrants. Wilkes also brought suit to challenge the "seizure" of his "person." (The government had imprisoned him in the Tower of London.) In a companion case to Wood, the lord chief justice ordered Wilkes released on habeas corpus on the ground of his Parliamentary privilege from arrest.

Madison quickly turns from the "political to the personal, from the 'the people' out-of-doors in conventions and suchlike to "persons" very much indoors in their private homes."

 

Yet even here, in taking the familiar talk of individual rights, we must be wary of anachronism and must not automatically assume that the right was essentially countermajoritarian. As with virtually every Bill of Rights provision thus far examined, the Fourth Amendment evinces at least as much concern with the agency problem of protecting the people generally from self-interested government policy as with protesting minorities against majorities of fellow citizens. A self-dealing and oligarchic government, after all, could threaten rights of the people collectively by singling out certain persons -- opposition leaders like John Wilkes, for example -- for special abuse. To counter this and other threats, the Fourth and Seventh Amendments armed civil juries, drawn from "the people," with special weapons to protect both individual persons and the collective people against a possibly unrepresentative and self-serving officialdom.

Reflect, for a moment, on the fact that the Fourth Amendment actually contains two different commands. First, all government searches and seizures must be reasonable. Second, no warrants shall issue without probably cause. The modern Supreme Court has intentionally collapsed the two requirements, treating all unwarranted searches and seizures -- with various exceptions, such as exigent circumstances -- as per se unreasonable. Otherwise, the Court has reasoned, the requirement that a neutral magistrate verify probable cause ex ante would be obviously frustrated -- the special safeguards of the warrant clause would be all but meaningless.

But this conflation of the warrant clause with the probable cause clause is not what the amendment says and effectively rewrites the amendment by adding a second sentence: "Absent special circumstances, no search or seizure shall occur without a warrant."

Amar invites us to rethink our assumptions:

 

To begin rethinking, consider the paradigmatic way in which Fourth Amendment rights were to be enforced at the Founding. Virtually any search or seizure by a federal officer would involve a physical trespass under common-law principles. An aggrieved target could use the common law of trespass to bring suit for damages against the official -- just as Wilkes brought a trespass action against Wood. If the search or seizure were deemed lawful in court, the defendant would prevail; but if, as in Wood, the search were found lawful, the defendant government official would be held strictly liable. There was no such thing as "good faith" immunity.

The problem with the Supreme Court's modern approach is that the proper role of the jury is displaced, and the role of citizens to act as a check on the professional judiciary and powerful magistrates has been hijacked. General warrants are too, well, general, and the ability of juries to review facts and determine appropriate awards and damages for cases in which they deem rights were violated is compromised. As in our loss of understanding of the militia, the modern jury is a sad shadow of its former energetic self and fundamental structural principles of the original Constitution have been lost.

Marriage: social order or individual freedom?

For hundreds of years, human society has ordered itself around the institution of marriage. Men provided safety, security and sustenance for women, women ordered the household so that men could work out in the community, and the home the man and woman built provided the place for children to be raised in accordance with the expectations and standards of the community. Marriage has not been first and foremost about the happiness of the spouses. That has been a byproduct of a husband and wife reaching for their better selves and working together to become more than the sum of their parts, but the primary purpose has been one of social order and securing the propagation of society.

This all started to change in the twentieth century when women in Europe and the United States went into the workforce and changed the balance and characteristic of the home. Then with the advent of birth control and the Supreme Court decisions of the 1960s that institutionalized the right to privacy in the U.S., the link between marriage and the propagation of society was irreparably broken. Marriage was no longer necessarily about social order. The individual happiness of the people in the marriage was the first order concern of the institution. No-fault divorces became the laws of the land in the states, and everyone accepted the new conventional wisdom without much thought as to the ultimate logical conclusion.

So we should not really be surprised that the definition of marriage has been increasingly challenged over the past twenty years, now to the point where it is a question of equality under the Constitution. Of course it has nothing to do with equality because everyone is perfectly free to marry anyone of the opposite sex. Yet the question remains - if marriage is first and foremost about the happiness of the individual and no longer the primary concern of society, then what right does society have to restrict who can and cannot be married? And there you have it - the competing values that are at play in contemporary debates over the definition of marriage.

Those who defend the traditional understanding of marriage between one man and one woman see marriage still as the fundamental bedrock and foundation of society. Social order is protected by marriage, so society has an obvious interest in ensuring its health. Nevertheless, proponents of traditional marriage lost the debate before it really started. Once the link between marriage and propagation was severed in our minds, the primary reason for marriage to serve as a societal institution was lost.

Those who advocate for the expansion of marriage for same sex couples see the purpose of marriage as serving the personal interests and happiness of the parties of the marriage. It is a contract that can be entered and exited when it no longer suits the needs or interests of one of the spouses. Society has no business getting involved; the government should "stay out of the bedroom," etc. Nevertheless, proponents of expanding the definition of marriage, along with all the rest of us, have lost the sense in which society is vested in the health of marriage. The future of humanity is bound up in the institution of marriage, and that fact can't be changed, no matter how hard we try to ignore it.

The currents of history feel like expanding the definition of marriage is inevitable, but even if that plays out, society needs to simultaneously find a way to reunite marriage with childbearing and childrearing. Children with two loving parents who are plugged in and responsible are the best cure to inner city crime and gang activity, suburban drug abuse, and substandard education across the board.

In any case, our fundamental misstep in this debate as a people was to allow the discussion to become federalized. Marriage and family have been regulated by the states since the inception of the Republic, and the federal Constitution delegates no authority to the federal government in the area of marriage. Allowing each state to decide for itself how to order and structure marriage would prevent the mistakes we have made with abortion -- politicizing the issue, removing any room for democracy to drive debate and compromise, and smothering presidential elections with social issues that should not be the concern or purview of the U.S. president.

Are we so afraid of losing control that we can't trust each other to come to the right answers? Is the constant, unending struggle for the political machinery in order to dictate and impose our own beliefs the only resolution to the question? God save us from ourselves if it is. The Founders, once again, knew better.