Texas Law Review Symposium: National Security, Privacy, and Technological Change, February 5, 2010
16 Pages Posted: 19 Mar 2010 Last revised: 23 Nov 2011
Date Written: November 19, 2011
Why is the Warrant Clause of the Fourth Amendment so modest in national security investigations? This symposium essay argues that the Warrant Clause has a narrow role because the extension of the Warrant Clause into national security law forces courts to pose a question that judges cannot readily answer. The cases extending the Warrant Clause to the national security setting held that warrants are required only when a warrant requirement would be reasonable, and the warrants that are required are whatever warrants would be reasonable. This double-barreled reasonableness test gave the Supreme Court the flexibility to insert the Warrant Cause almost anywhere, including the setting of national security investigations. But it came at a cost. The test created to give the Court flexibility forces judges to ask a question they are particularly poorly-equipped to answer. Faced with uncertainty, most judges will remain cautious. As a result, the Warrant Clause will apply broadly in theory but work modestly in practice.
Keywords: Fourth Amendment, national security
JEL Classification: K14
Suggested Citation: Suggested Citation
Kerr, Orin S., The Modest Role of the Warrant Clause in National Security Investigations (November 19, 2011). Texas Law Review, Vol. 88, p. 1669, 2010; Texas Law Review Symposium: National Security, Privacy, and Technological Change, February 5, 2010; GWU Law School Public Law Research Paper No. 497; GWU Legal Studies Research Paper No. 497. Available at SSRN: https://ssrn.com/abstract=1571941