The Corner

Law & the Courts

Kavanaugh and the Fourth Amendment

It is a relief to think about the nomination, if only for a moment, in terms of constitutional issues. In this op-ed, a libertarian Republican objects to Kavanaugh’s confirmation on Fourth Amendment grounds. Christian Ehmling writes, “Kavanaugh is on record stating that he believes it is acceptable for the government to violate the Fourth Amendment because national security is more important than our natural and constitutional rights.

I’ll admit that I have never made a study of the Fourth Amendment, and for all I know Kavanaugh reads it mistakenly. But the evidence Ehmling supplies undermines, rather than sustains, the charge he makes against the judge.

Ehmling first quotes the Fourth Amendment, which prohibits “unreasonable searches and seizures.” He then quotes Judge Kavanaugh, who noted in a concurrence, with indisputable accuracy, that “the Fourth Amendment does not bar all searches and seizures. It bars only unreasonable searches and seizures.” Finally, he quotes the concurrence’s conclusion that in the data-collection program under review in the case, a “critical national security need outweighs the impact on privacy.” Those sections of the concurrence, according to Ehmling, are what put Kavanaugh “on record” as ok “for the government to violate the Fourth Amendment.”

But the quotes he has provided don’t say anything of the sort. Kavanaugh was saying that the vital purpose of the search is relevant to an evaluation of its reasonableness, and the Fourth Amendment requires that evaluation. He was saying that the program, to the extent it included what the Constitution considers “searches,” included searches that were reasonable given their purpose. That’s why Kavanaugh wrote, in another passage that Ehmling to his credit quotes, that the program “is entirely consistent with the Fourth Amendment.”

You can agree or disagree with his conclusion, but he was attempting to apply the Fourth Amendment rather than blessing its violation.

Ramesh Ponnuru is a senior editor for National Review, a columnist for Bloomberg Opinion, a visiting fellow at the American Enterprise Institute, and a senior fellow at the National Review Institute.

Most Popular

White House

Another Warning Sign

The Mueller report is of course about Russian interference in the 2016 election and about the White House's interference in the resulting investigation. But I couldn’t help also reading the report as a window into the manner of administration that characterizes the Trump era, and therefore as another warning ... Read More
World

What’s So Great about Western Civilization

EDITOR’S NOTE: The following is Jonah Goldberg’s weekly “news”letter, the G-File. Subscribe here to get the G-File delivered to your inbox on Fridays. Dear Reader (Redacted: Harm to Ongoing Matter), One of the things I tell new parents is something that was told to me when my daughter still had that ... Read More
White House

The Mueller Report Should Shock Our Conscience

I've finished reading the entire Mueller report, and I must confess that even as a longtime, quite open critic of Donald Trump, I was surprised at the sheer scope, scale, and brazenness of the lies, falsehoods, and misdirections detailed by the Special Counsel's Office. We've become accustomed to Trump making up ... Read More
Film & TV

Jesus Is Not the Joker

Actors love to think they can play anything, but the job of any half-decent filmmaker is to tell them when they’re not right for a part. If the Rock wants to play Kurt Cobain, try to talk him out of it. Adam Sandler as King Lear is not a great match. And then there’s Joaquin Phoenix. He’s playing Jesus ... Read More
U.S.

Supreme Court Mulls Citizenship Question for Census

Washington -- The oral arguments the Supreme Court will hear on Tuesday will be more decorous than the gusts of judicial testiness that blew the case up to the nation’s highest tribunal. The case, which raises arcane questions of administrative law but could have widely radiating political and policy ... Read More
Sports

Screw York Yankees

You are dead to me. You are a collection of Fredos. The cock has crowed, you pathetic sniveling jerks. The team I have rooted for since 1965, when I first visited the House that Ruth Built, where I hawked peanuts and ice cream a lifetime ago, watched countless games (Guidry striking out 18!), has gotten so ... Read More