To those of us naively inclined to apply common sense when considering issues of Constitutional law and civil liberties, the answer to Eugene Volokh's question, posed in Slate--whether it's permissible to use geiger counters to detect a radioactive "dirty bomb" believed hidden in a residential neighborhood--is blindingly, staggeringly obvious (no nuclear pun intended). And Volokh the human being is compelled to concede that any constitution that prohibits such an obviously necessary, unobjectionable security measure is deserving of scorn, not reverence. But Volokh the Constitutionalist theologian has a problem: the high priesthood of the Supreme Court pronounced last year (and Volokh apparently agrees) that the infrared imagers sometimes used by police to detect signs of marijuana cultivation violate civil libertarian dogma. And if scanning for one form of radiation has been expelled from the Catechism, how can scanning for another form be permitted?
Again, common sense would dictate that the original decision--declaring infrared policing to be an unconscionable infringement on personal freedom--must have been ludicrously misguided, given its absurd consequences. But for the true believer, abandoning a holy decree for the sake of mere consistency is simply not an option, and Volokh has chosen instead to construct a Jesuitical distinction between the two rulings: searching for a dirty bomb with geiger counters is "reasonable", whereas searching for marijuana with infrared scanners is not. Hence, the Fourth Amendment, which forbids only "unreasonable searches and seizures", does not apply in the former case.
Note that Volokh clearly does not take the word "unreasonable" to mean "considered unreasonable by the people of the United States"; such an interpretation would, after all, leave the decision in the hands of the democratically accountable branches of government, eliminating any need for the Supreme Court to stick its collective nose into the issue in the first place. No, Volokh's interpretation of the meaning of the term "unreasonable" is crystal clear: a search is "unreasonable" if the community of the civil libertarian faithful (including himself) believe that it is, and the Supreme Court is fully justified in imposing his sect's cultic beliefs on an unwilling populace in direct contravention of their democratically expressed wishes. (Similarly, Dahlia Lithwick argued a few months ago for a Constitutional ban on high school urine tests for recreational drugs--but not necessarily for steroids--based on her sincere civil libertarian conviction that the former were "unreasonable", whatever the broader public might think. And just the other day, the Supreme Court sprang to the defense of a polemicist's absolute First Amendment right to go door-to-door unimpeded, marching right up the front steps of family homes--raising the burning question: what if your home contains an abortion clinic?)
Now, I'm not generally opposed to religiosity, and if Volokh wishes to adhere to his rather arcane creed of hairsplitting constitutionalism, then I wish him well. Theocracies are another matter, though, and if recent events haven't demonstrated to enough people's satisfaction the dangers of allowing fundamentalist fanatics to override the will of the majority in setting the law of the land, then I fear the grand project of Volokh and his correligionists--the wholesale replacement of representative democracy with Constitutional Shari'a--may well continue to advance at its current alarming pace.