Over at National Review Online, Adam White defends the new nominee to lead the CIA, General Michael Hayden, for his statements about the meaning of the Fourth Amendment.

This is, er, noteworthy. I've been looking for a reference on this and Orin Kerr was nice enough to provide one. Hayden is getting butchered for his comment about the 4th Amendment being more about "reasonableness" then about "probable cause." Frankly, he is "correct" insofar as his explanation of what the law is. I happen to not like this particular interpretation, but Hayden is not a justice. The people to be unhappy with are the courts that set these precidents. Hayden was just explaining what they have decided.

The Constitution doesn't literally say that you always need a warrant. It says no unreasonable searches and seizures and no warrants shall issue.... To me, it plainly means that there will never, ever be an unreasonable search, and we're not going to give you permission to do any searching unless you meet certain requirements. Thats how it seems to read to me. Courts have decided that it actually means that warrants are only required when they decide that they are required, and its possible that some searches where a warrant isn't required are reasonable, and those are legal. Thus, the erosion process begins...

A choice quote:

I think it’s fair to say that the development of the Fourth Amendment since 1971 has substantially undercut the idea that the exceptions to the warrant requirement are “few” or “well delineated."

What I find most entertaining about this is that its a perfect example of a place where a viewpoint that is "strict constructionalist" or "originalist" is unlikely to be popular with conservatives.

OrinKerr.com - Does Michael Hayden Understand the Fourth Amendment?