'We Do Not Want to be Hunted': The Right To Be Secure And Our Constitutional Story of Race And Policing

Abstract

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 a comprehensive account of the text, history, and original meaning of the Fourteenth Amendment’s limitations on policing. It establishes how the Fourteenth Amendment revitalized the constitutional guarantee of the right to be secure from unreasonable searches and seizures, struck out at centuries of history that led Black people to be subjected to indiscriminate searches and seizures, and sought to prohibit racialized policing practices. In these ways, the Fourteenth Amendment puts race at the center of our constitutional story of 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