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Search, Seizure, and Immunity: Second-Order Normative Authority and Rights

Criminal Justice Ethics 32.2 (2013)

27 Pages Posted: 9 Jul 2013  

Stephen E. Henderson

University of Oklahoma College of Law

Kelly Sorensen

Independent

Date Written: 2013

Abstract

A paradigmatic aspect of a paradigmatic kind of right is that the rights holder is the only one who can alienate it. When individuals waive rights, the normative source of that waiving is normally taken to be the individual herself. This moral feature — immunity — is usually in the background of discussions about rights. We bring it into the foreground here, with specific attention to a recent U.S. Supreme Court decision, Kentucky v. King (2011), concerning search and seizure rights. An entailment of the Court’s decision is that, at least in some cases, a right can be removed by the intentional actions of the very party against whom the right supposedly protects the rights holder. We argue that the Court’s decision is mistaken. The police officers in the case were not morally permitted, and should not be legally permitted, to intentionally create the very circumstances that result in the removal of an individual’s right against forced, warrantless search and seizure.

Keywords: fourth amendment, search, seizure, philosophy, ethics, immunity

JEL Classification: K14

Suggested Citation

Henderson, Stephen E. and Sorensen, Kelly, Search, Seizure, and Immunity: Second-Order Normative Authority and Rights (2013). Criminal Justice Ethics 32.2 (2013). Available at SSRN: https://ssrn.com/abstract=2291087

Stephen Henderson (Contact Author)

University of Oklahoma College of Law ( email )

300 Timberdell Road
Norman, OK 73019
United States
405.325.7127 (Phone)

HOME PAGE: http://www.law.ou.edu/directory/stephen-e-henderson

Kelly Sorensen

Independent

No Address Available

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