…continued from A Man’s House is His Castle: Interpretation of the Fourth Amendment.
Statement of Question
Thus, the stage is set. In light of recent global developments, specifically the terrorist attacks of September 11, 2001, and the ensuing “global war on terrorism,” should the right of unreasonable searches and seizures be limited to protect national security?
Arguments Favoring Fourth Amendment Limitations
Like most issues that deal with constitutional law, there is a battle between the rights of the people and power of the Government. Under very rare and certain circumstances, there is compelling state interest to limit the scope of constitutional protection.
This limitation of constitutional protection is easiest seen in the First Amendment and free speech. In the decision for Schenck v. United States, 249 U.S. 47 (1919), Justice Holmes wrote in the opinion of the Court:
The most stringent protection of free speech would not protect a man in falsely shouting fire in a theatre and causing a panic.
The question in every case is whether the words used are used in such circumstances and are of such a nature as to create a clear and present danger that they will bring about the substantive evils that the United States Congress has a right to prevent. It is a question of proximity and degree. When a nation is at war, many things that might be said in time of peace are such a hindrance to its effort that their utterance will not be endured so long as men fight, and that no Court could regard them as protected by any constitutional right1.
Justice Holmes made it clear that even within a right as simple as freedom of speech, there is a line that the people cannot cross and still expect constitutional protection. Justice Holmes also noted that the line is subject to move during a time of war.
The Schenck decision sets a precedent that can easily be applied to the Fourth Amendment. While not engaged in a traditional war that consists of nation-on-nation fighting, the United States is engaged in a war with persons, both domestic and foreign, who are attempting to cause undue harm to America and its inhabitants. It would be a dereliction of duty for the United States not to perform its due diligence in attempting to thwart such attacks in the interest of National Security.
In United States v. Verdugo-Urquidez, 494 U.S. 259 (1990), the Court held six-to-three that “[t]he Fourth Amendment does not apply to the search and seizure by United States agents of property owned by a nonresident alien and located in a foreign country.”2 This decision, in part, laid the groundwork for a memo written by John C. Yoo, Deputy Assistant Attorney General of the U.S. Department of Justice.
On March 14, 2003, Yoo wrote a memorandum for Wiliam J. Haynes II, General Counsel of the Department of Defense. Yoo wrote, “Indeed, drawing in part on the reasoning of Verdugo-Urquidez, as well as the Supreme Court’s treatment of the destruction of property for the purposes of military necessity, our Office recently concluded that the Fourth Amendment had no application to domestic military operations.”3(Emphasis added)
As such, there appeared to be a compelling state interest to limit the scope of the Fourth Amendment to protect the people of America. By limiting the Fourth Amendment and restoring writs of assistance, the Government is in a better position to more effectively prevent terrorism on home soil. For example, being able to more thoroughly conduct taps of telephones lines could lead to the arrest of suspects trying to cause harm.
Continued tomorrow with Arguments Against Fourth Amendment Limitations…
Schenck v. United States. 249 U.S. 47, 39 S.Ct. 247, 63 L.Ed. 470, Washington, D.C. : Supreme Court of the United States, 1919. ↩
United States v. Verdugo-Urquidez. 494 U.S. 259, Washington, D.C. : Supreme Court of the United States, 1990. ↩
Yoo, C. John. Memorandum for William J. Haynes II, General Counsel of the Department of Defense. Department of Justice, United States. 2003. Memorandum. p. 8 ↩