The good old days weren't always good, and tomorrow ain't as bad as it seems

Lots of people, including [cough] me [/cough] argue that the current administration is gutting the fourth amendment. They also argued that the last administration was gutting the fourth amendment--the lefty lawyer I worked for in Philadelphia was quite eloquent on the topic at the time. Bush I gutted the fourth amendment, also Reagan, Carter, Ford, and Nixon. Well, actually, their supreme courts did. That fourth amendment sure has a lot of guts.

Orin Kerr points out that this is a slight bit of romanticism:

I wonder, though, when exactly were the "good old days" of the Fourth Amendment? Clearly the "good old days" of the Fourth Amendment could not be from 1791 to 1961, before the full application of the Fourth Amendment to the states. Before 1961, the Fourth Amendment didn't do much, as most police work was state local and the Fourth Amendment either didn't apply at all (until 1949) or didn't make any difference in practice (from 1949 to 1961). In 1961, with Mapp v. Ohio, the Fourth Amendment suddenly became a hugely important control on routine police investigations: Maybe if you want to pick a time of the "good old days" of the Fourth Amendment, you say 1961.

But no, that can't work. 1961 was before Berger and Katz, before the "reasonable expectation of privacy" test and before the Fourth Amendment applied at all to bugging or wiretapping. So the good old days probably don't include from 1961 to 1967. Maybe we want to start the good old days on December 18, 1967, when the Supreme Court handed down Katz.

Maybe. On the other hand, the record in that period is sort of mixed. A few months before Katz, on May 29, the Supreme Court had dramatically expanded the warrant power and overruled the mere evidence rule in Warden v. Hayden. And just a few months after Katz, in Terry v. Ohio, handed down June 10, 1968, the Supreme Court took a significantly watered down approach to the Fourth Amendment to regulate police/citizen interactions on the street. It's kind of hard to know how you balance these cases: for example, was Terry a gutting of the full Fourth Amendment protection, or an expansion of the Fourth Amendment to street enounters? I think it's pretty mixed record to find the real high point of Fourth Amendment protection.

The Supreme Court's record since 1968 is also somewhat mixed. It is clearly correct that there are some cases that clearly narrowed Fourth Amendment protection, like United States v. Leon. But a number of the cases that critics say "eviscerated" the Fourth Amendment simply refused to expand Fourth Amendment protections or addressed issues that had never been resolved, like the many cases on aerial surveillance. And then there were also some cases that expanded protection, like Payton v. New York or Kyllo v. United States.

If you had to identify a "high point" of Fourth Amendment protection, I suppose you might pick the window from December 1967 to May 1968, or maybe the six years from December 1967 until some of the pro-law enforcement decisions of the Court in 1973.

This reminds me of P.J. O'Rourke's description of the Vasa, a restored ship on display in Stockholm:

The Vasa was, as the guidebook put it, "the mightiest royal warship of her times". The Vasa's wreck was discovered in 1956, and she was raised almost intact after five years of work by diving crews. The hull was enclosed in a shed and sprayed with wood presesrvative for another seventeen years. Then restorations began and finally, in 1990, the Vasamuseet opened, a noble, copper-sheathed, tent-shaped structure housing the ship and seven floors of displays and exhibits. Which is all well and good. However, the Vasa was launched on August 10, 1628, sailed 1,400 yards, and sank like a brick. "The mightiest royal warship of her times"--her times being August 10, 1628, from 4:30 until 5 in the afternoon.

(from Eat the Rich)

It also puts me in mind of something I wrote a while back:

I'm thinking of the purveyors of political and social doom. A few weeks ago, I was talking to a libertarian who was arguing that the Patriot Act was a one-way ticket to totalitarianism. We were violating fundamental rights that had been enshrined in the constitution for 200 years, and once we'd given them up, it was going to be a short step on the slippery slope to a police state. I share her fear of government intrusiveness. But this a markedly ahistorical view of the constitution and the liberties it allows us to enjoy, which is no more accurate for its extreme prevalence in libertarian circles. There is no primal state of liberty, created by the Constitution, from which we have slowly but inexorably been moving away. Liberties have been granted, and taken away, and granted again throughout the history of our country. Just off the top of my head: Lincoln's suspension of habeas corpus, the Palmer raids, the detention of the west coast Japanese in camps during World War II, the committment of anyone FDR or one of his minion's thought was especially dangerous to the war effort to St. Elizabeth's mental hospital during same, the McCarthy hearings--see this wonderful Richard Posner piece for a more elegant exegisis of the history of American liberties. The shape of liberty has changed over the 200 years of our existence, expanding in some places and contracting in others. There is no libertarian eden, located somewhere in the American past, from which we are now fallen, or falling.

Now, this doesn't mean that the Patriot Act is a good thing. But the fact that we have the Patriot Act now does not mean, as many libertarians ardently argue, that we will always have the Patriot Act. If the Patriot Act is bad, we should vigorously fight it. But there is no need to construct doomsday scenarios in which the existance of the Patriot Act consigns us to a totalitarian future.

Not to dump on libertarians exclusively, because everyone seems to do it. Social conservatives think we're doomed because the institution of marriage has been dangerously undermined, and is therefore likely to disappear entirely, along with God, patriotism, and the super-sized big mac meal, if we don't do something, quick. A large number of wonkish types (including, on odd days, me) spend a lot of time worrying about the possibility that our old-age entitlements will drive us into disastrous bankruptcy; few of us stop to reflect on the many, many unsustainable economic trends that have worried policy wonks right up until the moment that the impending doom suddenly solved itself under the inexorable logic of Herb Stein's famous dictum: "If something can't go on forever, it won't." Many liberals, like Paul Krugman, think that we nearly got into socioeconomic eden sometime around 1966, give or take, and have been staging a fast retreat towards armageddon ever since; marginal tax rates and some forms of social spending here take the part of doom-bringer, even though on every measure except simple inequality, the lives of the poor and the middle class seem to be richer in material goods, leisure, and quality of work than they were in the Golden Era of America's Middle Class.

That's not to say that liberals shouldn't want more progressive taxes and social spending, policy wonks more sustainably structured entitlements, social conservatives more traditional cultural values, or libertarians more freedom. It's perfectly reasonable to look at the way things are and say "they could be so much better if . . . " What we shouldn't do is compare our present to some highly airbrushed past, or mindlessly extrapolate trends, and thereby hastily conclude that we're all going to hell in a handbasket.

Just to reiterate: I do not like the Patriot Act. I very much do not like it. But I dislike it because it gives the state powers I don't want the state to have, not because I think it's a short step from here to Nazi Germany. It's a lot of pretty long steps from here to Nazi Germany (or Stalinist Russia), and thank God for that. It means we still have time to repeal the damn Patriot Act.

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Megan McArdle is a columnist at Bloomberg View and a former senior editor at The Atlantic. Her new book is The Up Side of Down.

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