The Liberal Assault on the Fourth Amendment
01 Jan 2007-Vol. 4
TL;DR: A more moderate approach than the liberal canon can provide greater Fourth Amendment protection than the current regime without further diminishing law enforcement effectiveness as discussed by the authors, but it is difficult to see how such a moderate approach can achieve the desired results.
Abstract: As construed by the Supreme Court, the Fourth Amendment’s reasonableness requirement regulates overt, non-regulatory government searches of homes, cars, and personal effects—and virtually nothing else This essay is primarily about how we got to this point It is fashionable to place much of the blame for today’s law on the Warren Court’s adoption of the malleable expectation of privacy concept as the core value protected by the Fourth Amendment But this diagnosis fails to explain why even the more liberal justices have often gone along with many of the privacy-diminishing holdings of the Court This essay argues that three other liberal dogmas—the probable-cause-forever position, the individualized suspicion mantra, and the obsession with exclusion as a remedy—are the primary reasons we have a Fourth Amendment Lite When a search requires probable cause to be constitutional, courts are naturally more reluctant to denominate every police attempt to find evidence a search When suspicion must be individualized, they are more likely to gloss over the harms caused by investigations of groups And when the sole serious sanction for an illegal search or seizure is suppression at trial, many judges have less sympathy for viable claims, because they cannot stomach dismissal of criminal charges against guilty people Of course, another explanation for the less-than-robust state of Fourth Amendment jurisprudence is that the Supreme Court is concerned about shackling government law enforcement efforts But this essay also demonstrates that a more moderate approach than the liberal canon can provide greater Fourth Amendment protection than the current regime without further diminishing law enforcement effectiveness
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TL;DR: In this paper, the authors proposed alternatives to the privacy standard, ranging from a focus on property, dignity, liberty or information control to a right to security from government coercion, and in any event can almost all fit comfortably within the privacy rubric.
Abstract: Katz v. United States and the accompanying turn to privacy as the lodestar of Fourth Amendment analysis have been the target of heavy criticism. The privacy standard is said to be contrary to Fourth Amendment language, history and precedent, overly elastic and thus conducive to judicial activism in either direction, and inadequate at capturing what the Fourth Amendment is really about. But the proposed alternatives to the privacy standard — ranging from a focus on property, dignity, liberty or information control to a right to security from government coercion — all have their own flaws, and in any event can almost all fit comfortably within the privacy rubric. Privacy’s capaciousness, together with its alienability, its amenability to measurement, and its scalar nature, can maximize the Fourth Amendment’s flexibility in dealing with the regulatory challenges posed by both traditional and modern law enforcement practices.
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