...Or let the cops do it.

So the speculation offered in my last post that people's resistance to bag searches in the subway would evaporate after another attack has proven true. In fact, New Yorkers seem to be submitting to the new reality more readily than even I had imagined, making my solution of a citizen search unncessary to a degree. Of course, sustaining the current system will be costly, but least for now, we can stick to opening our eyes and ears and let the cops open bags.

This all raises an interesting legal point in my mind about the unexpected consequences of particular constitutional ideologies. Namely, it seems that those who argue in favor of a "living constitution" would have to admit that Fourth Amendment should theoretically become LESS protective of privacy as security threats increase and as the public becomes more willing to submit to invasive police practices. Just as a constitutional clause's pro-rights language can be effectively stretched and broadened to mirror popular sentiment, so too can it be narrowed and constricted for the same purpose. This is particularly true in the context of the Fourth Amendment where the word "reasonable" presents an exceedingly vague and malleable guidpost for judges. A difficult question is: what should an originalist or textualist response to this issue be? Is there any point at which a security measure considered "reasonable" by the public during a time of extreme threat or national emergency would nonetheless fall outside the constraints of what would have been considered reasonable by the constitution's framers? More fundamentally, does the constitution have the legitimate power to force rights on the people (thus restricting state power), even when such "rights" are opposed by an overwhelming majority of the populace? My hunch is that answers to these questions will not fall predictably along conservative/liberal lines, precisely because the "flexibility" afforded by liberal constitutional theory can serve, in this context, to eviscerate the "rights" so central to the left's jurisprudence. By contrast, the "objective" textualism may tend to encourage fixed and rigid boundaries for police power that end up constraining the state in its effort to achieve security.

This is not only true in the Fourth Amendment realm. Note, after all, that it was Scalia who wrote the most civil libertarian opinion in the Hamdi case, not because he became a sudden liberal activist, but because he viewed himself as bound by the constitution's text and not at the whim of more vague and ephemeral notions of emergency powers and inherent executive authority.