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The Inviolate Home: Housing Exceptionalism in the Fourth Amendment

48 Pages Posted: 25 May 2010  

Stephanie M. Stern

Chicago-Kent College of Law

Date Written: May 25, 2010

Abstract

The ideal of the inviolate home dominates the Fourth Amendment. The case law accords stricter protection to residential search and seizure than to many other privacy incursions. The focus on protection of the physical home has decreased doctrinal efficiency and coherence and derailed Fourth Amendment residential privacy from the core principle of intimate association. This Article challenges Fourth Amendment housing exceptionalism. Specifically, I critique two hallmarks of housing exceptionalism: first, the extension of protection to residential spaces unlikely to shelter intimate association or implicate other key privacy interests; and second, the prohibition of searches that impinge on core living spaces but do not harm interpersonal and domestic privacy. Contrary to claims in the case law and commentary, there is little evidence to support the broad territorial conception of privacy inherent to the “sanctity of the home,” a vital personhood interest in the physical home, or even uniformly robust subjective privacy expectations in varying residential contexts. Similarly, closer examination of the political and historical rationales for housing exceptionalism reveals a nuanced, and equivocal, view of common justifications for privileging the home. This Article advocates replacing the broad sweep of housing exceptionalism, and its emphasis on the physical home, with a narrower set of residential privacy interests that are more attentive to substantive privacy and intimate association.

Keywords: Search, Seizure, Fourth Amendment, Criminal Procedure, constitutional law, criminal

JEL Classification: K10

Suggested Citation

Stern, Stephanie M., The Inviolate Home: Housing Exceptionalism in the Fourth Amendment (May 25, 2010). Cornell Law Review, Vol. 95, 2010. Available at SSRN: https://ssrn.com/abstract=1615770

Stephanie M. Stern (Contact Author)

Chicago-Kent College of Law ( email )

565 W. Adams St.
Chicago, IL 60661-3691
United States
312-906-5285 (Phone)

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