As I mentioned in my introductory post, I have a soft spot for the Fourth Amendment. Unfortunately, it seems that judges, up to and including the Supreme Court, have made it a hobby to poke ever more holes into the Amendment’s proscription against warrantless, suspicionless searches, purportedly in the name of “reasonableness.”

Most of the evisceration of the Fourth Amendment has been proximately caused by the War on Drugs, particularly regarding the ever-increasing “automobile exception” to the warrant requirement. But we also have a whole panoply of other exceptions: border searches, administrative searches, consent searches, health & safety inspections, exigent circumstances…

…oh, and the War on Terror:

A federal appeals court Friday upheld the constitutionality of the city’s random police inspections of subway riders’ bags.

The 2nd U.S. Circuit Court of Appeals rejected a challenge by the New York Civil Liberties Union, which argued that searches were ineffective and an unprecedented intrusion into privacy.

The appeals court ruled that a lower court judge properly concluded the program put in place in July 2005 after the deadly London subway bombings was a reasonably effective deterrent and that the intrusion on riders’ privacy was minimal.

If you’ve never ridden the New York City subway*, then it might be difficult for you to appreciate just how wrong that last sentence is. The search program has, literally, zero deterrent effect. None.

Suppose you’re a terrorist, part of a cell. You want to have your bomb or lethal liquids activated on a certain subway car at a certain time. You approach your preferred subway entrance. You are confronted with a search table — there is no “element of surprise” of any kind.

You look at the police officers; they look at you.

And then you smile, turn around, walk a few blocks to the next entrance, or next station, and try again.

You will, easily and unequivocally, get into the subway system. There is no possibility, none, that you will be thwarted in your efforts.

So explain to me again how this inane search program, one that has, literally, zero probability of stopping any terrorist, is “a reasonably effective deterrent”?

There is no comparability, none whatsoever, between a few scattered bag searches at a few scattered subway entrances and the screening that occurs at airports. If you were to search everyone entering the subways (an implausible scenario), then yes, the system would work, much as it does in air travel.

But a system that pre-announces when and where searches will take place, that allows people to decline, turn around and simply try again at the next entrance, is objectively worthless. Therefore, it is also objectively unreasonable. And therefore, unconstitutional — even under our current, heavily-diluted Fourth Amendment jurisprudence.

So what the heck were the judges thinking?

Simple: This litigation is simply a manifestation of an alarming trend which, despite all the gobbledygook we hear about “activist judges,” is on the rise: the replacement of “rational basis review” with a new jurisprudence of absolute deference to the non-judicial branches of government.

Judges are increasingly refusing to question the assertions of legislators, executives and law enforcement. A “finding” by a legislature, or a police chief, or a general, is to be accepted as an incontrovertible fact, no matter how little evidence supports the assertion or how much opposing evidence may contradict it:

We will not peruse, parse, or extrapolate four months’ worth of data in an attempt to divine how many checkpoints the City ought to deploy in the exercise of its day-to-day police power. Counter-terrorism experts and politically accountable officials have undertaken the delicate and esoteric task of deciding how best to marshal their available resources in light of the conditions prevailing on any given day. We will not — and may not — second-guess the minutiae of their considered decisions. [Emphasis in original.]

So the guiding principle of “great deference” is now a iron-clad demand for “absolute deference.” But don’t worry — the people we are deferring to are “politically accountable.”

Lovely.

Judicial abdication recently reached its apex in the atrociously reasoned same-sex marriage decisions by the high courts of New York and Washington State, both of which let stand hopelessly over- and underinclusive discriminatory marriage paradigms based on nothing more than their respective legislatures’ assumptions, prejudices and wild guesses. There was no serious analysis in either decision; no balancing of claims. Just a pronouncement that “others know best,” even when they obviously don’t and even when fundamental rights are at stake.

As another example, I doubt I have to review for Overlawyered readers the Supreme Court’s abysmal eminent domain decision, Kelo v. New London. Yet again a basic constitutional protection is abandoned in the name of “deferring” to politicians and their collaborators.

So in that sense this latest defeat for basic liberties, and common sense, is nothing new or surprising. For our supposedly “activist” judges, “rational review” now means “irrational deference.” Go figure.

Great deference, perhaps even absolute deference, might — might — be appropriate when there is absolutely no question of a law’s constitutionality. But where the very question being asked is whether a law violates the Bill of Rights, mere rationality is not enough, and patent irrationality is outrageous.

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*One generally overlooked facet of the search program is that it includes New York City buses as well as subways. But the bus searches would take place after the passenger has boarded, whereas the subway searches commence before the passenger has entered through a turnstile. That makes the analysis entirely different, yet I rarely see the two programs distinguished.

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The case is MacWade v. Kelly, No. 05-6754-cv (2nd Cir., August 11, 2006) (PDF – 25 pages). My previous posts on the subways searches can be found in this chain. More thoughts from Concurring Opinions, Balkinization.

Filed under: Washington state