Implied Consent and Other Constitutional Frauds

8 Pages Posted: 2 Apr 2012 Last revised: 19 May 2012

Stephen Kruger


Date Written: May 18, 2012


The United States Supreme Court undoes the Fourth Amendment by snipping bits and pieces from the prohibition of unreasonable searches and seizures, and from the requirement of warrants for searches and seizures.

For travelers, a large patch was torn away by implied consent. Driving through highway “sobriety” checkpoints and walking through airport “security” checkpoints are rationalized as knowing waivers of the protections of the Fourth Amendment, although modern life is impossible without road travel and air travel.

The legal catch is that no court uses implied consent for the benefit of a party other than a government, or for a purpose other than circumvention of the Fourth Amendment.

Implied consent finds no anchor in the Fourth Amendment. That makes implied consent a Fourth Amendment fraud. Others are reasonable suspicion on the totality of the circumstances, profiling, the clairvoyance exception to probable cause, and Korematsu. Each Fourth Amendment fraud was made possible by the judicially-modified Fourth Amendment, the text of which is given.

Lawlessness is the main item on the calendar of the United States Supreme Court, so there will be no judicial rejection of any of those frauds.

Keywords: Fourteenth Amendment, Messerschmidt, profile, Sokolow, Wardlow

JEL Classification: K14, K42

Suggested Citation

Kruger, Stephen, Implied Consent and Other Constitutional Frauds (May 18, 2012). Available at SSRN: or

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