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From Privacy to Liberty: The Fourth Amendment After Lawrence

69 Pages Posted: 6 Dec 2009  

Thomas P. Crocker

University of South Carolina School of Law

Multiple version iconThere are 2 versions of this paper

Date Written: October 1, 2009

Abstract

This Article explores a conflict between the protections afforded interpersonal relations in Lawrence v. Texas and the vulnerability experienced under the Fourth Amendment by individuals who share their lives with others. Under the Supreme Court’s third-party doctrine, we have no constitutionally protected expectation of privacy in what we reveal to other persons. The effect of this doctrine is to leave many aspects of ordinary life shared in the company of others constitutionally unprotected. In an increasingly socially networked world, the Fourth Amendment may fail to protect precisely those liberties - to live in the company of others free from state surveillance and intrusion - the Constitution should protect. Against the background of the third-party doctrine, we guarantee our privacy only by avoiding ordinary acts of interpersonal sharing. By contrast, the Court in Lawrence explains that intimate conduct occurring within protected personal relationships constitutes a private sphere wherein government may not intrude. Because the third-party doctrine views privacy narrowly, this Article develops a framework for revising Fourth Amendment jurisprudence in light of Lawrence’s protection for interpersonal liberty. By following the lessons of Lawrence, this Article proposes a way to reorient Fourth Amendment jurisprudence away from its focus on privacy in order to protect interpersonal liberty.

Keywords: Fourth Amendment, Due Process, Liberty, Privacy, Third-Party Doctrine, Constitutional Law, Constitutional Theory, Interpretation

Suggested Citation

Crocker, Thomas P., From Privacy to Liberty: The Fourth Amendment After Lawrence (October 1, 2009). UCLA Law Review, Vol. 57, No. 1, 2009. Available at SSRN: https://ssrn.com/abstract=1518585

Thomas P. Crocker (Contact Author)

University of South Carolina School of Law ( email )

Main & Greene Streets
Columbia, SC 29208
United States

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