Ignorance and Democracy

28 Pages Posted: 12 Feb 2018

See all articles by Morgan Cloud

Morgan Cloud

Emory University School of Law

Date Written: May 10, 07


Anyone familiar with traditional ideas about the origins and nature of our democracy will be surprised to learn that contemporary Fourth Amendment doctrine governing consent searches accepts--even encourages-ignorance among the people about their constitutional rights. Consent can justify otherwise illegal searches even if the consenting individuals do not know they possess the constitutional right to say "no." For more than a third of a century, Supreme Court opinions have decreed that a person can consent to government intrusions otherwise prohibited by the Fourth Amendment if that decision is "voluntary" according to the "totality of the circumstances" standard that the Court has held inadequate to protect other constitutional rights.

As a result, the Fourth Amendment right to be free from unreasonable searches and seizures receives less protection than other rights, including the Sixth Amendment right to counsel and, of greatest relevance here, the Fifth Amendment privilege against self-incrimination. In general, decisions to relinquish Fifth and Sixth Amendment rights are judged against the constitutional waiver test, which requires not only that decisions are voluntary, but also that they are "knowing and intelligent." As a practical matter, the knowing and intelligent prong of the waiver test requires that government actors, whether police officers, prosecutors, or judges, must advise people of the nature of the constitutional rights they are forsaking. Yet, people ignorant of their Fourth Amendment rights can relinquish them by acceding to government requests for consent to search.

The Supreme Court's doctrine of Fourth Amendment consent contradicts the most fundamental notions of individual autonomy embodied in the Constitution. And it does not exist as a deviation from other doctrines now established in Fourth Amendment jurisprudence, particularly the expectation of privacy and assumption of the risk theories first articulated by the Warren Court.

Keywords: Fourth Amendment consent, Fifth Amendment waiver, constitutional rights, search and seizure, interrogation, police

Suggested Citation

Cloud, Morgan, Ignorance and Democracy (May 10, 07). Texas Law Review, Vol. 39, No. 1143, 2007. Available at SSRN: https://ssrn.com/abstract=3121357

Morgan Cloud (Contact Author)

Emory University School of Law ( email )

1301 Clifton Road
Atlanta, GA 30322
United States

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