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.

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