Family Regulation's Consent Problem 

Abstract

The home is the most protected space in constitutional law. But family regulation investigators conduct millions of home searches a year. Under pressure, parents nearly always consent to these state agents’ entry into the most private areas of their lives.

This Article identifies the coercive forces—not least the threat of family separation—that drive parents to consent to home searches. Drawing on primary sources and case law examining consent in criminal cases, it shows that common family regulation investigation tactics render consent involuntary and the ensuing searches unconstitutional. And yet, it argues, the Constitution is not enough. Though constitutional litigation could lead to tangible improvements in privacy for families, the Constitution offers thin protection from government surveillance for race–class subjugated communities. Instead, reformers ought to reject the consent paradigm and focus on state legislation cabining searches in family regulation investigations.

This Article makes three central contributions. First, it describes the underexamined role that consent searches play in the family regulation apparatus. Second, it establishes the unconstitutionality of routine family regulation investigative practices, building out the Fourth Amendment framework for family regulation investigations. Finally, this Article distinguishes between reforms aimed at limiting consent as a legal justification for searches and reforms aimed at limiting searches, no matter their justification. Consent-focused reforms legitimize and leave intact the search apparatus. Thus, reform must contend squarely with searches and not merely consent, within the family regulation system and across the carceral state.  

Keywords: family law, criminal law, criminal procedure, constitutional law, family regulation, carceral logics, consent, child welfare