How the Fourth Amendment and the Separation of Powers Rise (and Fall) Together
29 Pages Posted: 10 Jan 2016 Last revised: 2 Feb 2016
Date Written: January 8, 2016
This Essay explores the purposive and functionalist parallelisms between the Fourth Amendment and the separation of powers. Not only do those two elements of the Constitution share a common ambition, they are also entangled in practical operation. The vindication of Fourth Amendment interests, however defined, depends on institutional differentiation between branches of government. That institutional predicate, however, has eroded over time. In its absence, new questions arise about how Fourth Amendment values are best implemented and whether the their realization is better attained by private rather than state action.
Keywords: Fourth Amendment; privacy; separation of powers
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