Save the Fourth Amendment

One of the best things I’ve read recently. The only trick it missed was a reference to the TSA. A slightly shortened version of the Economist's article on the erosion of the 4th Amendment rights in the US (against unreasonable search and seizures).

Best quote: "The lesson from the founders, Mr Shipler concludes, is that freedom depends not on the virtue of leaders or officials but on a “durable foundation of constitutional protections”. The message from Guantánamo, and from the mean streets of north-east Washington, is that the foundation needs shoring up."

Most of the article below the fold:

IT IS only a mile or so from the colonnade of the Supreme Court to some of Washington, DC’s most dangerous neighbourhoods. But these two parts of the nation’s capital could be in different countries. On any given night, armed police prowl north-east Washington in search of guns or drugs. So routine are these patrols that black men sitting on stoops or standing on corners will reflexively lift their T-shirts when the police approach, to show that they have no pistol tucked into their waistbands. Often the police will frisk them anyway, and search their cars as well. You might almost forget, in light of these encounters, that the fourth amendment to the constitution establishes the right of the American people to be “secure in their persons, houses, papers, and effects, against unreasonable searches and seizures.”
David Shipler, a former New York Times reporter and winner of the Pulitzer prize, does not want you to forget. In a new book (“The Rights of the People”, Alfred Knopf) he argues that America’s search for safety is relentlessly eroding the precious protections in the Bill of Rights. He decided to write the book—the first of a pair—on September 11th 2001, the day al-Qaeda struck the twin towers. After watching the awful images on television, he suddenly understood: “There go our civil liberties.”…
Part of the damage is done by the habit of police everywhere to cut corners and stretch their prerogatives. But the Supreme Court has played a part, too. To take just one of Mr Shipler’s examples, the police must still usually show “probable cause” if they want a warrant to search a house. But for street encounters in which there is even the slightest possibility of danger to life, the court has over time substituted the woollier “reasonable grounds” or “reasonable suspicion”, thereby giving officers on the beat a latitude they are delighted to exploit. Most street pat-downs are never recorded, scrutinised by a prosecutor, challenged by a lawyer or adjudicated by a judge. Yet, says Mr Shipler, they weaken the fourth amendment and poison life on the street in a thousand poor neighbourhoods in America….
As in the war on terrorism, so in the war on crime: the sharp question is how much risk a society is willing to absorb in order to preserve liberty. Mr Shipler’s conclusion is that America is increasingly prone to give the wrong answer. The premise underpinning its justice system is that it is far worse to convict wrongly than to fail to convict at all. But in its responses to drug-trafficking and organised crime that ideal has been severely weakened….
There are some libertarians in American politics, but on the conservative wing of the Republican Party the liberty talk has come lately to dwell more on the alleged threat to economic freedom posed by Mr Obama’s alleged taste for big government, and less on the sort of freedoms entrenched in the Bill of Rights. The second amendment, on the right to keep and bear arms, is treated as holy writ, but the fourth has somehow lost its sex appeal.
That is a pity. Mr Shipler used to report from the Soviet Union. He sees reminders of Soviet thinking in the United States since al-Qaeda’s attacks. Though a bold line separates Soviet dictatorship and American democracy, people are much the same everywhere. That is why James Madison said two centuries ago that “all men having power ought to be distrusted to a certain degree”. The lesson from the founders, Mr Shipler concludes, is that freedom depends not on the virtue of leaders or officials but on a “durable foundation of constitutional protections”. The message from Guantánamo, and from the mean streets of north-east Washington, is that the foundation needs shoring up.