77 Pages Posted: 11 Mar 2011
Date Written: 2010
The Political Fourth Amendment develops a theme from Justice Ginsburg’s recent dissent in Herring v. United States to argue for a “more majestic conception” of the Fourth Amendment focused on protecting political liberty. To put the point dramatically, we misread the Fourth Amendment when we read it exclusively as a criminal procedure provision focused entirely on either regulating police or protecting privacy. These two doctrinal goals are in clear conflict in Arizona v. Gant, with the majority opinion focused on privacy and the dissent focused on providing police officers clear rules. In order to see the Fourth Amendment as contributing to the Constitution’s protections for political liberty, and not simply as an invitation to regulate police practice, this Article examines the fact that the Fourth Amendment’s textual purpose is to secure a “right of the people,” which places it textually alongside the First, Second, and Ninth Amendments that similarly seek to protect the “right[s] of the people.” Narratives focused on regulating police or protecting privacy each risk blinding us to the Fourth Amendment’s broader constitutional setting. By looking at the historical origins of the Fourth Amendment in relation to substantive First Amendment concerns, and examining the textual significance of protecting a “right of the people,” this Article argues that the two dominant narratives overlook a central political purpose of the Fourth Amendment. The political Fourth Amendment seeks to protect the political liberties of the sovereign “People.” These liberties include the ability to assemble and interact with other people free from pervasive state interference or surveillance. But, current Fourth Amendment doctrine offers no protection to anything a person knowingly exposes to others, a hazard in an era of electronic social networking. Both pragmatists and rights essentialists have cause to be concerned with the doctrine’s increasing irrelevance to modern social life. Reading the Fourth Amendment’s political purpose back into the Constitution will make available new grounds for the Constitution’s relevance in an age of pervasive electronic surveillance.
Keywords: Privacy, Liberty, Fourth Amendment, First Amendment, Search and Seizure, Third-Party Doctrine, Constitution, Rights, Pragmatism, Legal Theory
Suggested Citation: Suggested Citation
Crocker, Thomas P., The Political Fourth Amendment (2010). Washington University Law Review, Vol. 88, No. 2, 2010. Available at SSRN: https://ssrn.com/abstract=1739755