The Rittenhouse Review

A Philadelphia Journal of Politics, Finance, Ethics, and Culture

Wednesday, June 19, 2002  

Andrew Sullivan: Fourth Amendment Superfluous

In the aftermath of the Sept. 11 attacks on the World Trade Center and the Pentagon, and the foiled attempted attack on, presumably, the White House, how can we as a free society reconcile the need for security with the demands, requirements, and strictures of the Fourth Amendment to the Constitution?

Amendment IV

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.

In the real world, this is a serious and complicated issue discussed with all due consideration given to the intent of the authors of the Bill of Rights, the nature of a free society, and an honest assessment of changing threats to the security of that society.

But over at, which lately has taken on all the trappings of a monarchy well past its prime, it’s a far more simple matter.

Today Andrew Sullivan turns his attention to the Fourth Amendment in response to the coincidence of yesterday’s tragic bus bombing in Israel and an editorial in the pages of the New York Times, regarding a Supreme Court case that expanded the boundaries of the police to search bus riders without informing them they had the right to refuse to undergo this measure.

In the editorial, the Times said:

In the Fourth Amendment, the founders guaranteed us the right to be secure against unreasonable searches and seizures....Yesterday the court decided a case about passengers on a Greyhound bus who were not told they had the right to refuse to be searched. By a 6-to-3 vote it upheld the search, a decision we believe is mistaken.

The bus in yesterday's case had made a scheduled stop in Tallahassee, Fla. When the driver disembarked, three policemen boarded. One took the driver's seat while the other two moved down the narrow aisle, asking to check the passengers' luggage and persons....

The passengers were not legally required to permit the search -- if they had said no, the police would have had to leave them alone. The question is, was the situation on the bus sufficiently coercive that the passengers would reasonably have thought they had to cooperate? If so, the Fourth Amendment would have required the police to inform the passengers that they had the right to refuse.

The test, the court has held, is whether a reasonable person would have felt free “to ignore the police presence and go about his business.” . . .

It would have been hard for the passengers on the Greyhound bus to ignore the police, and under the circumstances, the police should have conveyed through words what the physical layout did not -- that the passengers were free to tell them no....

As long as the “war on terror” rages, there will be pressure to do away with the fine points of Fourth Amendment law. But with the Bush administration increasingly intent on engaging in domestic spying, often with little or no judicial oversight, we need those protections now more than ever.

The editorial is thoughtful, coherent, intelligent, even persuasive, and unusually thorough given it runs to just more than 400 words.

But Sullivan will have none of it. The whole of his argument is this:

CONNECT THE DOTS: Why does reading this story make my saying anything about this editorial seem somewhat superfluous?


su·per·flu·ous (soo-pûr' floo-es) adj.

Being beyond what is required or sufficient.

No need to engages the Times in a thoughtful debate. Don’t bother to challenge the editors’ judgment. Forget about presenting a contrary argument. Just dismiss it with a wave of the hand.

But if there’s no need to debate the meaning and proper interpretation of the Fourth Amendment, why keep it in the Bill of Rights at all? It’s just getting in the way of the government’s (so far unproved) ability to find terrorists in our midst.

The Fourth Amendment: superfluous. The mind reels.

We are continuously amazed at how willing our self-styled conservatives are to toss aside the constitutional bases of the freedom Americans enjoy, freedom they enjoy not because they’re carefree, self-centered, or reckless, but because this freedom is a right granted them by both God and man.

The Rittenhouse Review | Copyright 2002-2006 | PERMALINK |