I’m in the middle of working through Akhil Reed Amar’s The Constitution and Criminal Procedure in my Phil/Crim 380 class (“Philosophical Issues in Criminal Justice”), and am also in the middle of planning the second event in Felician University’s “Race and Criminal Justice in America” series. The event is tentatively called “Search, Seizure, Stop, and Frisk: Two Perspectives,” and the idea is to invite a defense attorney and a police officer to share the stage while answering questions on Fourth Amendment rights and contemporary police work. More on that as I firm up the details.

In any case, I’ve got the Fourth Amendment and policing on my mind. To that end, I thought I’d post and invite comments on a paper that I presented back in 2012 at a conference for the Association for Core Texts and Courses, “The Fourth Amendment as a Core Text: A Pedagogy for the Citizen-Philosopher.” The more I think about it, the more I agree with what I wrote in the paper–always the right time to ask whether I’ve gotten anything wrong. Which is where you come in, reader. Feel free to search, seize, stop, and/or frisk the text. Hope you find it arresting. 

The Fourth Amendment as a Core Text: A Pedagogy for the Citizen-Philosopher
 Irfan Khawaja
Felician University

The Fourth Amendment to the U.S. Constitution consists of a single complex sentence:

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 text omits about as much as it asserts. Its first clause offers a statement of moral doctrine, prescribing inviolable respect for “the right…to be secure,”but omits any definition or description of this right. A phrase within that clause lists four items to be protected by the same right to security, but says nothing about the status—the exhaustiveness, exclusivity, or generalizability—of the items on the list. A different phrase, also within the first clause, legitimizes “reasonable searches and seizures” but specifies no criterion of reasonability. The Amendment’s second clause describes a procedure for regulating searches and seizures, but omits any mention of the procedure’s relation to the foregoing right or conception of reasonability. This combination of omission and assertion, I want to suggest, is rather puzzling, but also the Amendment’s great strength, both as a legal document and as a pedagogical one.

We often think of constitutional law as a topic specific to law school, but it finds its way into the undergraduate curriculum, typically in courses on constitutional interpretation (usually taught in Departments of Politics or Government), and courses on criminal procedure (usually taught in Departments of Criminal Justice). Consider three popular and/or authoritative approaches to the Fourth Amendment in these contexts. I’ll call these the folkloric, the textbook, and the historicist approaches, regarding them merely as general tendencies one encounters in the undergraduate setting, without intending the categories to be exhaustive of the possibilities, or even necessarily exclusive of one another.[1]

The folkloric approach is the one that students sometimes bring to the study of the Fourth Amendment, and is less a reading of the text than a series of associations conjured up by it. Inspired perhaps by police dramas on TV and the movies, this approach seizes on the Amendment’s warrant clause and takes that clause to be the essential content of the Amendment as a whole. On this view, the Fourth Amendment is narrowly to be understood as an instrument of criminal procedure. What it demands is that law enforcement officers operate at every step of a criminal investigation by “getting” probable cause, and then by getting a warrant. An officer with a warrant in hand can permissibly search and/or seize; an officer without one is paralyzed into inaction.[2]

Having construed the warrant requirement in this oversimplified fashion, the folkloric reading is then susceptible of a kind of inverse reading. If the warrant requirement is as rigid as the folkloric reading suggests, the Fourth Amendment would appear to be a positive obstacle to effective law enforcement. For what about cases where a search or seizure is necessary, but a warrant is impracticable? The folkloric reading insists that a warrant is nonetheless required, so that if a warrant is impracticable, substantive justice must be held hostage to a mere procedure. The law officer’s job, then, is discreet illegality in the service of substantive justice: a “good cop,” in other words, gets around the constitutional mumbo-jumbo to “get the job done.” Perhaps that explains the insistent romanticization in our popular tradition of the officer who unapologetically searches and seizes without constraint because he has an infallible understanding of where to look and what to do, regardless of the evidence available to him.

The folkloric approach is of course wrong. It is for one thing too narrow, since it ignores the Amendment’s application outside of criminal law. More fundamentally, it ignores the fact that while probable cause is required for warrants, nothing in the text of the Amendment says that warrants are always required for search and/or seizure. It follows that some searches and seizures can in principle be warrantless. Finally, contrary to its pretentions, the inverse-folkloric reading’s glorification of “rogue” law enforcement is incoherent. The “rogue” conception is ambiguous as between an ideal of law enforcement unconstrained by law, and an ideal that enforces an “unwritten law”of substantive rather than merely procedural justice. In the first case, we have the incoherence of law enforcement without law. In the second, we have the fantasy of law without written procedures. In either case, the inverse reading gives us a dangerously seductive version of the desire to play God (on this desire, see Bolt, 64-66 and Sartre, 566).

As the name suggests, the textbook approach is the one that students encounter in textbooks of criminal procedure and the like, and is often the one invoked to remedy the distortions of the folkloric view (e.g., Cole and Smith, 176-91). On the textbook view, the Fourth Amendment asserts a defeasible rule—the same one asserted by the folkloric reading—amended by a long series of exceptions. Where the folkloric reading tells us that warrants are always required,the textbook reading tells us that warrants are sometimes not required, and tells us where. The task of the apt or diligent student is to grasp the warrant requirement, to remember that it is not an absolute, and then to memorize and be able to apply the list of exceptions to it, with the proviso that the list can expand or contract as the courts modify it. Thus where the folkloric reading insists on a form of absolutism, the textbook reading offers a nuanced form of pragmatism.

The textbook approach may be more nuanced than the folkloric reading, but is still subtly (and dangerously) wrong. The plain fact is that the Fourth Amendment asserts an inviolable right. An inviolable right is one that, by definition, cannot be violated. The textbook reading tells us where the right can be violated without telling us where it can’t be, and without setting any limits on the possible exceptions. It thereby defaults on the task of explaining what the Amendment’s first clause is saying, and by implication what the Amendment itself says.

Suppose that someone insists that no right can literally be inviolable; some “exceptions” to the rule of inviolability are necessary, if only to accommodate reasonable searches and seizures themselves.[3] In that case, a rational interpreter still needs an answer to a basic question: how do we reconcile the textual requirement of inviolability with the necessary exceptions? On virtually any account of it, reason demands a coherent, principled account of the relationship between a rule and the supposed exceptions to it. Why, in other words, are some exceptions justified and not others?

The textbook approach gives no answer to these crucial questions. Indeed, most textbooks see no reason to raise them at all. But the text of the Amendment demands reasonability, and it flouts the norms of reason to promulgate an inviolable principle followed by a series of ad hoc exceptions. So the textbook approach must be rejected.

The historicist approach is an attempt to remedy the ad hoc character of the textbook approach by appeal to the historical context in which the Amendment was first formulated and adopted (e.g., Amar).[4] The assumption here is that the Amendment is best interpreted by discovering what its original authors believed about or intended for it. If we discover what they believed or intended, we discover the text’s original meaning—presumably the perfect interpretation. Historicist readings differ by the different historical claims they make, and any attack on one version will court the objection that it fails to respond to the claims of another. But we need not dwell on the differences between historicisms to see the problems that they all by definition share.[5]

The most obvious problem is that the historicist approach lacks a clear method of making the past relevant to the present. If its operative question is, “What did the Founders think?” the problem is that they disagreed with one another, not only about the meaning of the Fourth Amendment, but about the desirability of having a Bill of Rights at all.[6] In any case, even when they agreed, some of what the Founders said was wrong—that is, unreasonable and rights-violative (e.g., about slaves and women). If so, following their beliefs indiscriminately would violate the Amendment’s textual requirements of reasonability and respect for rights. To follow their reasonable beliefs, we would have to discriminate systematically between the right and the wrong ones. That procedure presupposes that we ourselves have in hand a criterion for distinguishing right from wrong beliefs on the subject. But the very idea of our having a criterion for tracking the Founders’ reasonable beliefs implies that it is reason rather than history that is driving our inquiry. The inquiry may be facilitated in part by historical concerns, but is not itself an exercise in historiography.

If the operative question is, “What would the Amendment’s authors think?”that question is incoherent. Our knowledge of the Founders is inherently tied to their eighteenth-century context. There is no feasible way to lift the Founders from that context, preserve our knowledge about them, and then ask counterfactual questions about what they “would have done” in some other century. We have no idea what the Founders “would have” learned in the time between then and now, or whether they “would have” changed their minds about what they originally believed. So the historicist reading cannot be right. We simply have to face the possibility that a James Madison or a Thomas Jefferson, resurrected from the grave, might lack good answers to the two hundred years of interpretive questions we’d want to ask him.

Each of the preceding three approaches to the Fourth Amendment shares a common feature, and as I see it, a common weakness. The folkloric readings begin by seizing on the warrant requirement in the Amendment’s second clause. The textbook reading proceeds by amending the warrant requirement in the same clause. The historicist reading directs our attention away from a direct confrontation with either clause of the Amendment, insisting that any such confrontation be mediated by historical inquiries into the Founders’ beliefs. Each approach, in short, avoids a direct confrontation with the Amendment’s first clause. It’s as though practitioners of all three approaches scan quickly over the first clause, come upon the concept of an inviolable right there, find that concept either anachronistic or otherwise obscure, and then decide to focus attention elsewhere. But the first clause’s reference to inviolable rights is where the interpretive action is. Omit an account of it, and one leaves the Fourth Amendment a mystery.

And it’s unsurprising why interpreters tolerate that mystery. On the hand, the Amendment’s first clause claims to safeguard an inviolable right to security. In doing so, it demands that its readers know what such a right is and entails. On the other hand, the Constitution neither gives us an account of that right, nor gives us a hint about where to find one. We’re left, then, in an interpretive quandary: we’re asked to protect a right with a definite identity (“the right of the people to be secure”), but one whose identity is left unspecified. As students are apt to ask, where is one supposed to “go” to “get” an account of it?

Perhaps the question is misconceived. “Going” and “getting” is language appropriate to the inculcation of dogma or the consumption of commodities, but neither is appropriate to the task at hand—inquiry and discovery. The Constitution tells us that we the people (the same “people” mentioned in the Amendment’s first clause) ordain a Constitution to “secure the blessings of liberty to ourselves and our posterity” (the same concept of “security” mentioned in the Amendment’s first clause) and vest the judicial powers of the United States in its courts. The assumption seems to be that we the people already know what a right to security is and know how and why it needs protection. If “we”have forgotten all that—or never quite knew it—perhaps it becomes our responsibility to learn or re-learn things on our own initiative. From this perspective, the omissions in the Amendment’s text are, like the Constitution’s references to representation, legislation, petitions, assemblies, militias, and juries, an invitation to active citizen participation.Just as vacant offices need willing officers to fill them, omissions in the Constitutional text need willing interpreters to fill them. Where our political institutions demand civic action, the Constitution’s textual omissions demand what might be called civic philosophy or thought.

In fact, no (adult) American comes to the study of the Constitution as a blank slate on the subject of rights. We all have beliefs about it, often strongly held ones. Unfortunately, those beliefs often get lost in the disciplinary shuffle of college-level instruction about legal matters. Practitioners of the textbook approach want their students to master contemporary legal doctrine. Practitioners of the historicist approach want their students to master the relevant historiography. Philosophers of law tend to talk about other things altogether. Aside from a Core Texts approach, it’s unclear what undergraduate discipline or course is designed to stimulate thought into the moral meaning of the Fourth Amendment’s right to security.

That is as good an argument as any for a Core Texts approach. As I see it, an undergraduate coming to the study of constitutional interpretation or criminal procedure ought to be asked—prior to any sustained discussion of the legalities or technicalities of the Fourth Amendment—to reflect on “the right to be secure.” This exercise need not and probably should not involve any heavy-duty philosophical reading. Nor should it involve theorizing of the sort appropriate to a class in philosophy. What we should expect instead is the thoughtful dialectics of the citizen-philosopher, that is, the discourse of the educated amateur generalist who stands to the professional philosopher as Aristotle’s citizen-soldier stands to his or her professional counterpart.[7] We should ask students to clarify to themselves their own independent conception of the right to security,the conception arrived at on their own intellectual initiative prior to and independently of consultation with textbooks, casebooks, history books, journal articles, or Wikipedia. What (they should be asked) do they regard as inviolably secure in human life? What would they want a government to be able to search or seize so as to keep them and their loved ones secure? How would they reconcile the answers to those two questions, and how would they justify their answers to others?

The point is not to insist that every undergraduate student of law become a political philosopher. Nor is it to suggest that students’ philosophical reflections on rights will necessarily be true, rational, or correspond to anything the Fourth Amendment actually protects. The point is to insist that students get their interpretive priorities straight. Too many students are indoctrinated into the belief that, as far as constitutional interpretation is concerned, intellectual sophistication requires them to miss the substantive forest for the procedural trees. I often encounter budding lawyers and police cadets who can recite the entire list of exceptions to the warrant clause, and are (literally) willing to put their lives on the line for the exclusionary rule, but cannot name the right that the Fourth Amendment protects. The first clause of the Amendment has become invisible to them, even as it states the Amendment’s raison d’etre. There is no better way to make it visible to them but to force it on their notice, and demand engagement with it.[8]

Much is made of the “individualism” of contemporary American life, rarely if ever as a compliment. Americans, we’re told in derogation of this individualism, are overly focused on their rights, and insufficiently devoted to their civic obligations. But if my argument here has been correct, there is a distinctively individualist conception of devotion to civic life constituted by devotion to the rights inscribed in the Bill of Rights. A Bill of Rights neither enforces nor interprets itself. Citizens as citizens must take the initiative to enforce it or see it enforced, and citizens as amateur philosophers must figure out what counts as enforcement worthy of the name. If so, there is no conflict between an individualist focus on rights, and a civic-minded focus on obligations: a commitment to understanding and defending rights just is an American’s civic obligation—and no easy task.

It’s highly doubtful that contemporary Americans are, in this sense, overly individualistic or overly focused on rights. Legal defendants aside, few Americans seem to mind the remarkable intrusions now taken for granted as ad hoc “exceptions” to the (themselves ad hoc) rules that govern search and seizure. There is no mass movement today against torture or indefinite detention in contexts of warfare; nor is there one against the ad hoc exception-making that dominates contemporary criminal law, or against the volumes of “administrative exceptions” to the Fourth Amendment in regulatory law. Legal scholars aside, few citizens seem much exercised by the “mess” that goes by the name “Fourth Amendment jurisprudence,” and even there,  it’s generally thought salutary to offer interpretations of the Amendment that are “pragmatic, contingent, and subject to easy revision” (Amar 39).

“The instability of our laws is really an immense evil,” Jefferson wrote Madison from Paris in 1787, going on to express the ingenuous belief that some procedural tinkering with the Constitution might serve as a fix (Jefferson 918). He was and remains right about the evil, but he was wrong about the fix. By definition, a right to security can neither survive perpetual revision nor the rule of ad-hocracy. The only real fix is a conception of rights robust enough to yield security across generations, and citizens willing and able to discover and uphold it.[9]

Endnotes

[1] The terminology in the text is my own, intended to capture categories that are broader (and I think, more basic) than those discussed in the academic literature on constitutional interpretation.

 [2] For a somewhat cavalier example of this assumption, see Ely 172-73 and 260 (note 111).

[3] There are at least two ways of putting the point in the text. On the one hand, we could say that there are permissible abridgements of the right to security (e.g., Meyers, 4-15, 143-49). In that case, each exception would need a separate justification. On the other hand, we could say that the right to security is contextually absolute, meaning that while the right is absolutely inviolable within a specified context, it is inapplicable outside of that context (e.g., Smith 1995, 110-117).  In that case, the relevant conception of context would need justification, as would the principle defining it. Neither approach is easy to justify, but the second interpretation seems more obviously coherent than the first with the idea of an inviolable right.

[4] I put Amar’s book in this category not because it sets out to offer a historicist interpretation, but because it ends up endorsing one. (Added 2016: In re-reading Amar, I was struck by the vacuousness of his attempt to read the Fourth Amendment by way of “reasonability” while ignoring questions about the substantive content of “the right to be secure.” Despite his attempt to produce a textually faithful account of the Fourth Amendment, his interpretation does an end-run around the parts of the Amendment’s text that demand a strong conception of inviolability in the right to be secure.)

[5] For an excellent critique of this general approach, see Smith 2007.My term “historicist” denotes a broader category than what Smith calls “originalism.”

[6] For a good discussion of disagreement over the Bill of Rights, see Labunski.

[7] On citizen-soldiers, see Aristotle, Ethics pp. 42-45 (III.8-9) and Politics pp. 219-223 (VII.14-15). On dialectic, see Aristotle’s Topics pp. 167-81 (I.1-18). On educated amateur generalists, see Ethics pp. 2-3 (I.3).

[8] The argument of this paragraph might seem to involve an endorsement of Ronald Dworkin’s well-known conception of constitutional interpretation, but no such endorsement is intended: I essentially agree with the criticisms made of Dworkin in Smith 2007, 173-79. My argument is intended to contrast with the conception of constitutional interpretation espoused, among others, by Robert Bork (see, e.g., Bork 113).

[9] Thanks to Charles Claunch, Dennis McGrath, Ronald Pestritto, and Anne Ruszkiewicz as well as my students at John Jay College of Criminal Justice and Felician University for very helpful discussion of the issues of this paper.  A special thanks to Carrie-Ann Biondi for particularly helpful commentary and advice.

Works Cited

Amar, Akhil Reed. 1997. The Constitution and Criminal Procedure: First Principles. New Haven: Yale University Press. Print.

Aristotle. 1999. Nicomachean Ethics. Second Edition.Trans. Terence Irwin. Indianapolis: Hackett. Print.

Aristotle. 1984. The Politics. Trans. Carnes Lord. Chicago: University of Chicago Press. Print.

Aristotle. 1984. Topics in The Complete Works of Aristotle, Revised Oxford Translation. Ed. Jonathan Barnes.Trans. W.A. Pickard-Cambridge. Princeton: Princeton University Press. Print.

Bolt, Robert. 1962. A Man for All Seasons. New York: Random House. Print.

Bork, Robert H. 1990. The Tempting of America: The Political Seduction of the Law. New York: Touchstone Books. Print.

Cole, George F. and Christopher E. Smith. 2008. Criminal Justice in America, Fifth Ed. Belmont, CA: Wadsworth Publishing. Print.

Ely, John Hart. 1980. Democracy and Distrust: A Theory of Judicial Review. Cambridge and London: Harvard University Press. Print.

Jefferson, Thomas. 1984. “Objections to the Constitution: To James Madison,” in Thomas Jefferson: Writings. Ed. Merrill D. Peterson.New York: The Library of America. Print.

Labunski, Richard. 2006. James Madison and the Struggle for the Bill of Rights. Oxford: Oxford University Press. Print.

Meyers, Diana T. 1986. Inalienable Rights: A Defense. New York: Columbia University Press. Print.

Sartre, Jean-Paul.1992 [1943]. Being and Nothingness: A Phenomenological Essay on Ontology. Trans. Hazel E. Barnes.New York: Washington Square Press. Print.

Smith, Tara. 1995. Moral Rights and Political Freedom. Lanham, MD: Rowman and Littlefield. Print.

Smith, Tara. 2007. “Why Originalism Won’t Die—Common Mistakes in Competing Theories of Judicial Interpretation,” Duke Journal of Constitutional Law & Public Policy, vol. 2, pp. 159-215. Print.