'We Do Not Want to be Hunted': The Right to be Secure and Our Constitutional Story of Race and Policing
64 Pages Posted: 7 Jul 2020
Date Written: June 8, 2020
Both Supreme Court doctrine and the scholarly literature on the constitutional constraints on policing generally begin and end with the Fourth Amendment, ignoring the Fourteenth Amendment’s transformative guarantees designed to curtail police abuses and safeguard liberty, personal security, and equality for all regardless of race. This Article corrects this omission by providing the first comprehensive account of the text, history, and original meaning of the Fourteenth Amendment’s limitations on policing. It shows how the Fourteenth Amendment changed our understanding of the constitutional guarantee of the right to be secure from unreasonable searches and seizures and added to our foundational charter a prohibition on all forms of discriminatory policing. The Article demonstrates that addressing police abuse, including indiscriminate searches and seizures, arbitrary arrests, police violence and killing, is at the core of the Fourteenth Amendment’s guarantees and history. Our understanding of the constitutional law of policing — and the Supreme Court’s responses to police abuses — will remain inadequate unless we recover this history.
Keywords: Fourteenth Amendment; Fourth Amendment; policing; race; originalism; remedies; qualified immunity
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