A Citizenship Model of the Fourth Amendment

Abstract

Fourth Amendment law is in disarray. In recent years, courts and scholars have questioned central aspects of Fourth Amendment doctrine—in particular, the reasonable expectations of privacy test that has governed since the 1960s. Scholars and judges have argued for abandoning this test and instead looking to private law (sub-constitutional rules governing private conduct, such as tort, property, and contract law) to determine Fourth Amendment protection.

At this moment when judges and scholars are questioning core aspects of Fourth Amendment doctrine, the time is ripe to reconsider the values Fourth Amendment law ought to serve. I advance a novel vision for Fourth Amendment law, centered not around privacy or private law, but around the value of democratic citizenship. I argue that the prevailing Fourth Amendment rules and proposed private law alternatives are both deficient in one important respect: They both fail to recognize and address the ways in which policing impacts democratic citizenship. A large body of social science research shows that coercive encounters with police tend to diminish people’s trust in government, sense of citizenship, and political participation. These citizenship harms, I argue, ought to be a central concern for Fourth Amendment law. This is necessary to realize the Fourteenth Amendment’s guarantee of full and equal citizenship.

Under a citizenship model, when deciding whether an action is an unreasonable search or seizure, courts would consider what the action conveys about the subject’s belonging and standing in the community. To evaluate this, courts would ask how the action comports with values associated with democratic citizenship, such as participation, autonomy, anti-subordination, and proportionality. 

Keywords: Fourth Amendment, Fourteenth Amendment, Citizenship, Policing, Criminal procedure, law and inequality