The Fourth Amendment as a Collective Right

Abstract

The Fourth Amendment speaks of the "right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures." The Amendment’s words are plural: the right of the "people" and "their." Yet, the Amendment has been traditionally interpreted to safeguard the rights of individuals in atomistic spheres of interests: it safeguards my person and your house and her papers and his effects against unreasonable searches and seizures. An alternative view would treat the Amendment as requiring the government to keep us collectively secure in our persons, houses, papers, and effects.

For most of the history of the United States, the view that the Fourth Amendment served to protect individual security - that it was an individual right - was so patently obvious that it needed no support. Yet, the collective security model has been rapidly gaining momentum - and not just in response to terrorist attacks on the United States. Analytical support for it is now found in a broad swath of Supreme Court case law, permitting an increasing number of suspicionless governmental actions designed to further collective ends. In gravitating toward the collective security model, the Court has not cut back rhetorically on its long history of interpreting the prefatory words in the Amendment ("The right of the people to be secure") as an individual right; instead, the Court has construed other terms of the Amendment ("search," "seizure," and "unreasonable") in a manner to advance collective security concerns. This article examines the underpinings and ramifications of the individual security and collective security models and the trend toward the latter approach. I argue here for rejecting the primacy of collective security as a main interpretative approach to the Amendment and maintain that that approach is illusory and inimical to the fundamental premise - and promise of - the Amendment, which is the protection of individual security.

Keywords: Fourth Amendment, Criminal Procedure, Constitutional Law