For the last half century the courts have moved to a jurisprudence of law and order instead of one of individual rights.
That's according to Michael Gizzi, an Illinois State University Professor of Criminal Justice Sciences, who spoke with GLT's Charlie Schlenker. Gizzi has co-authored a new book on the fourth amendment to the constitution, the portion of the bill of rights preventing unreasonable searches and seizures so people can be secure in their property and possessions.
"What we have seen in the last fifty years is a steady diminishment of our fourth amendment rights out of a desire to zealously combat crime and out of a desire to keep us safe," said Gizzi.
Gizzi said the idea of the warrant as the primary basis for a police search went away. Increasingly police did not need warrants to search vehicles or people.
"Since the mid 80s reasonableness is defined by probable cause which has also been watered down to be understood with what we call the totality of the circumstances. Sort of let's look at all the facts together. And what that does is significantly diminish the rights of the accused," said Gizzi.
But, there are signs the pendulum has begun to swing in the other direction. Gizzi said the most recent five years of the Roberts court has resulted in some Supreme Court decisions in favor of personal privacy, requiring warrants for cell phone searches, for instance.
Gizzi said the makeup of the Supreme Court moving forward will help determine the future direction of the fourth amendment. He says an entire generation of judges has been taught to value crime control over personal liberty. But, he said technology, a cultural moment that decreases trust in police, and some membership changes on the high court have already put the fourth amendment in flux.
The book is The Fourth Amendment in Flux: The Roberts Court, Crime Control, and Digital Privacy. It's out from University of Kansas Press. Gizzi's co-author is R. Craig Curtis of Bradley University.