The Purpose of the Fourth Amendment and Crafting Rules to Implement that Purpose

44 Pages Posted: 14 Sep 2013 Last revised: 13 Feb 2014

See all articles by Thomas K. Clancy

Thomas K. Clancy

University of Mississippi School of Law

Date Written: January 6, 2014

Abstract

What is the purpose of the Fourth Amendment? How should rules – legal principles – be crafted to implement that purpose? This article addresses those fundamental questions. Both historically and currently, the Supreme Court’s answer to the first question has vacillated between two choices: the Amendment is designed to regulate law enforcement practices or it is designed to protect individuals from overreaching governmental intrusions. Rules – legal principles – should implement purpose. If the first view is correct, then the Court should create a rule book for the police to effectuate their intrusions. If the second view prevails, then rules should be designed to promote individual security. This article posits that the purpose of the Fourth Amendment, at its very core, is to protect individual security. Accepting that premise as a given, the article details the consequences of that purpose – legal principles should be constructed to protect the individual, including general rules and exceptions to those rules.

Keywords: Fourth Amendment, search and seizure, Supreme Court

JEL Classification: K10, K14, K40

Suggested Citation

Clancy, Thomas K., The Purpose of the Fourth Amendment and Crafting Rules to Implement that Purpose (January 6, 2014). University of Richmond Law Review, Vol. 48, No. 2, 2014, Available at SSRN: https://ssrn.com/abstract=2325481 or http://dx.doi.org/10.2139/ssrn.2325481

Thomas K. Clancy (Contact Author)

University of Mississippi School of Law ( email )

Lamar Law Center
P.O. Box 1848
University, MS 38677
United States
662-832-5244 (Phone)

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