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When the states ratified the Bill of Rights in the eighteenth century, the Fourth Amendment seemed straightforward. It requires that government respect the right of citizens to be "secure in their persons, houses, papers, and effects, against unreasonable searches and seizures." Of course, "papers and effects" are now digital and thus more vulnerable to government spying. But the biggest threat may be our own weakening resolve to preserve our privacy.
In this potent new volume in Oxford's Inalienable Rights series, legal expert Stephen J. Schulhofer argues that the Fourth Amendment remains, as the title says, more essential than ever. From data-mining to airport body scans, drug testing and aggressive police patrolling on the streets, privacy is under assault as never before--and we're simply getting used to it. But the trend is threatening the pillars of democracy itself, Schulhofer maintains. "Government surveillance may not worry the average citizen who reads best-selling books, practices a widely accepted religion, and adheres to middle-of-the-road political views," he writes. But surveillance weighs on minorities, dissenters, and unorthodox thinkers, "chilling their freedom to read what they choose, to say what they think, and to associate with others who are like-minded." All of us are affected, he adds. "When unrestricted search and surveillance powers chill speech and religion, inhibit gossip and dampen creativity, they undermine politics and impoverish social life for everyone." Schulhofer offers a rich account of the history and nuances of Fourth Amendment protections, as he examines such issues as street stops, racial profiling, electronic surveillance, data aggregation, and the demands of national security. The Fourth Amendment, he reminds us, explicitly authorizes invasions of privacy--but it requires justification and accountability, requirements that reconcile public safety with liberty.
Combining a detailed knowledge of specific cases with a deep grasp of Constitutional law, More Essential than Ever offers a sophisticated and thoughtful perspective on this important debate.
- Sales Rank: #857660 in eBooks
- Published on: 2012-07-09
- Released on: 2012-07-09
- Format: Kindle eBook
Review
"This book is a gem-an astonishingly concise education in Fourth Amendment issues without shortcuts. Stephen Schulhofer's simple, clear, engaging prose, his extraordinary insight, and his great good sense make the journey enlightening as well as alarming. Well before the end, one understands why rapidly changing technology and the threat of terrorism do not justify the slackening of Fourth Amendment protections that recent decisions have approved." --Albert W. Alschuler. Julius Kreeger Professor of Criminal Law and Criminology, Emeritus, The University of Chicago
"Stephen Schulhofer offers an indispensable, lucid, and much-needed defense of the Fourth Amendment, providing compelling responses to those who claim that privacy is dead, that if we have nothing to hide we have nothing to fear, and that the Fourth Amendment protects only criminals. He persuasively demonstrates that the Fourth Amendment's protection remains essential to a robust liberal democracy in the Facebook and Google era." --David Cole, Professor of Law, Georgetown Law School
"Stephen Schulhofer spells out why the Fourth Amendment's protections from unwarranted government surveillance are as important as freedom of speech when it comes to liberties essential to sustain a democratic society. He makes a powerful case that too often we have permitted law enforcement powers to expand while leaving individuals with 'only the protective shields that sufficed in the eighteenth century.' He does an outstanding job debunking the widely held assumption that there is-and must be-a 'trade-off' between liberty and security. And he does so clearly, crisply and stylishly." --Yale Kamisar, Clarence Darrow Distinguished University Professor Emeritus of Law, University of Michigan
"...provides a compelling case-based analysis for returning to the principles and values embedded in the Bill of Rights." --Political Science Quarterly
"Stephen Schulhofer's More Essential Than Ever takes a broad approach. Written for both a lay audience and the student of Fourth Amendment jurisprudence, it tackles a range of Fourth Amendment issues, from the origins of the Fourth Amendment to the challenges we face in balancing the Fourth Amendment protections against national security interests... Well written and informative." --Tulsa Law Review
About the Author
Stephen J. Schulhofer is Robert B. McKay Professor of Law at the New York University School of Law. His books include Rethinking the Patriot Act, The Enemy Within, and Unwanted Sex.
Most helpful customer reviews
6 of 7 people found the following review helpful.
A Quick Tour of Current Fourth Amendment Controversies
By Norman A. Pattis
Odds are that if you will take the time to read this brief little book, you don't need persuading that the Fourth Amendment is important. Another in a series of short works on the Constitution published by Oxford University Press's Inalienable Rights Series, Stephen Schulhofer's book does a good job of dissecting the Supreme Court's current Fourth Amendment jurisprudence. His conclusion is depressing: the Court seems all too willing to yield to Government. The result is a Fourth Amendment unmoored from traditional concerns with checking government power and holding law enforcement accountable.
Schulhofer argues in favor of what insiders might call a "living constitution." Yes, the intentions of the framer's matter, but what is important is deciding what principles mattered to them, not what they had in fact decided in the context of their times. Of course, Schulhofer is right.
The aim of the Fourth Amendment is to create "sheltered space" for individuals to set their own course in life. A government too intrusive kills the spirit of inquiry and dissent. If "sheltered Space" sounds a little too new age for you, understand Schulhofer's point: He wants to avoid casting the Fourth Amendment in terms of privacy or autonomy. While these are certainly important Fourth Amendment values, the primary focus of the Fourth Amendment is to serve as a check on government power. This distinction matters because in our time there is little left of privacy, given the fact that our lives are lived increasingly in an electronic world owned and managed by third-parties.
I also liked Schulhofer's rebuked of Richard Posner, and the chorus of those who argue that we must trade liberty for security. Why?, asks Schulhofer. Creating a surveillance society doesn't necessarily make us safer. Indeed, he argues, it makes us less safe, both because it focuses on the wrong things, and because it fosters distrust of government.
I like the book, but I am not sure how many Shulhofer's are left out there. Juries seem increasingly willing to swallow whatever bait the government dangles at trial, and the judiciary seems in wholesale retreat from a robust interpretation of the Fourth Amendment. Perhaps, I wondered as I read this book, the American constitutional experiment has already failed, and we have just not registered the reality of the failure yet.
Even so, I recommend this book to anyone who wants a quick tour of what's at stake in the current Fourth Amendment wars. It may be that civil libertarians have already lost the war. But for those who chose to continue to fight, it is a useful resource, and a rallying cry.
1 of 1 people found the following review helpful.
A Great Introduction
By Virah Vocah
Stephen Schulhofer, a distinguished author and professor of law at NYU, has written six books and dozens of articles on a large variety of topics—from battered spouse syndrome to national security secrecy to unwanted sex. He writes in an approachable manner, not looking to overwhelm the casual or uninformed reader with an extensive or an in depth analysis of any one particular case or topic. Instead he surveys cases related to each application of 4th amendment (searches, arrests, policing the public space, wiretapping, national security, and others), looking to inform the reader on the respective rights of an American citizen (and how they have been repeatedly challenged).
Organization of the book varies, focusing on a chronological approach but appropriately shifting into a topical delimitation in order to give a more rounded view of specific issues. He begins with a brief history of the fourth amendment, paying special attention to the reasoning behind its inception. After his application-specific analysis (mentioned above) he ends by tackling the national security challenge to privacy.
My greatest takeaway from the book was his assertion that the newer technologies (emails, social networking, phone calls by digital transmission, etc…) remain completely vulnerable to government surveillance (no court case has upheld the 4th in relation to digital wiretapping yet).
In the matter of opinion, Schulhofer supports the adaptive originalist approach to interpreting the constitution, suggesting that its focus on principles rather than rules will be enough to protect both our privacy and our safety. He argues against those who say privacy and safety stand in opposition to each other, instead suggesting that the powers awarded to the government from FISA from the Patriot Act may be doing more harm than good.
I loved reading about the issues and cases that Schulhofer presents, and truly appreciate his introduction to 4th amendment disputes. However, that is just what this book is—an introduction. Take his opinions with a grain of salt, as he often fails to portray the opposing views in their full measure. It left me hungry for more information, more knowledge, and more point of views. I recommend the book, but would not cite it as an authority that can stand alone.
0 of 0 people found the following review helpful.
Excellent concise summary.
By Peter N. Steinmetz
An excellent concise summary of the 4th amendment and its meaning in the 21st century. Provides good references to cases and precedents.
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