Rethinking the Fourth Amendment: Race, Citizenship, and the Equality Principle
66 Pages Posted: 6 May 2010 Last revised: 19 Jul 2010
Date Written: May 5, 2010
Notwithstanding claims that the election of President Barack Obama signals a post-racial epoch, one does not have to look far for evidence that race still matters. It is particularly evident in how we police, which remains very much racially inflected. Even when racial animus is absent, there often persists the perception that racial bias is present, even inevitable, as the recent firestorm over the arrest of Harvard Professor Henry Louis Gates attests to. Scholars such as Randall Kennedy have long argued that disparate treatment by police amounts to the imposition of a “racial tax.” But this comparison, while descriptively apt, falls short of capturing the complexity and interconnectivity of the harms resulting from disparate treatment. It is time for a broader argument. It is time to identify such disparate treatment, as well as the perception of disparate treatment, for what it is: a flaw in our claim of equal citizenship. This Article makes that argument.
To remedy this state of affairs, this Article proposes a new criminal procedure revolution, one that understands criminal procedure rights, and specifically the Fourth Amendment, as inextricably linked to citizenship rights. This new criminal procedure would re-conceptualize reasonable suspicion and consensual encounters, encourage randomization, and reinvigorate civil actions, all with a view of furthering the goal of equal citizenship. While these changes may not eliminate race-based policing entirely, they will move us significantly closer to the goal of equal citizenship. And they will move us closer to a post-racial America.
Keywords: Fourth Amendment, Citizenship, Race, Racial profiling, Equal protection, Terry stops
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