Reasonableness and Objectivity: A Feminist Discourse of the Fourth Amendment

Abstract

This article offers a feminist critique of constitutional search and seizure law, focusing on the concepts of reasonableness and objectivity, and visualizes a substantive and epistemological feminist theory of the Fourth Amendment. It seeks to uncover invisible gender, race and class biases that underlie the Fourth Amendment's discourse of reasonableness and objectivity by deconstructing the reasonable-unreasonable and objective-subjective dichotomies and exposing their inextricable connection. It exposes the arbitrary and artificial construction of these dichotomies by demonstrating the lack of a meaningful guide to distinguish reasonable from unreasonable searches and seizures, and by focusing on the manipulation of the subjective-objective divide to empower the police. It then maintains that the standard of reasonableness and its stance of objectivity embody a male perspective, consistently empower law enforcement officers, and affirmatively invalidate all other perspectives in a way that systematically oppresses women and other less powerful individuals. This article advocates the abandonment of the concepts of reasonableness and objectivity. It explores several possibilities of modeling a feminist Fourth Amendment by adopting a constantly shifting, multi-perspectival jurisprudence. Reasonableness is displaced by an anti-subordination principle suited for a re-envisioned power-centered Fourth Amendment; the discourse of reasonableness and objectivity is discarded in favor of a multi-focal approach to Fourth Amendment adjudication, which transcends current conceptions of how to determine a constitutional violation and of whose voices are heard. It also suggests the infusion of multiple perspectives in the form of personal narratives and 'other' forms of knowledge into search and seizure law.

Keywords: fourth amendment, privacy, subordination, anti-subordination, feminist jurisprudence, public-private discourse