The Political Fourth Amendment

The Political Fourth Amendment builds on Justice Ginsburg\u27s recent dissent in Herring v. United States to argue for a “more majestic conception” of the Fourth Amendment focused on protecting political liberty. To put the point dramatically, we misread the Fourth Amendment when we read it exclusively as a criminal procedure provision focused entirely on either regulating police or protecting privacy. In order to see the Fourth Amendment as contributing to the Constitution\u27s protections for political liberty, and not simply as an invitation to regulate police practice, we must take seriously the fact that the Fourth Amendment\u27s textual purpose is to secure a “right of the people,” which places it textually alongside the First, Second, and Ninth Amendments that similarly seek to protect the “right[s] of the people.” Narratives focused on regulating police or protecting privacy each risk blinding us to the Fourth Amendment\u27s broader constitutional setting. By looking at the historical origins of the Fourth Amendment in relation to substantive First Amendment concerns, and examining the textual significance of protecting a “right of the people,” this Article argues that the two dominant narratives overlook a central political purpose of the Fourth Amendment. The political Fourth Amendment seeks to protect the political liberties of the sovereign “People.” Focused exclusively on protecting privacy by regulating police practice, current Fourth Amendment doctrine offers no protection to anything a person knowingly exposes to others, a hazard in an era of electronic social networking. Reading the Fourth Amendment back into the Constitution makes available new grounds for the Constitution\u27s relevance in an age of pervasive electronic surveillance

The Fourth Amendment at Home

A refuge, a domain of personal privacy, and the seat of familial life, the home holds a special place in Fourth Amendment jurisprudence. Supreme Court opinions are replete with statements affirming the special status of the home. Fourth Amendment text places special emphasis on securing protections for the home in addition to persons, papers, and effects against unwarranted government intrusion. Beyond the Fourth Amendment, the home has a unique place within constitutional structure. The home receives privacy protections in addition to sheltering other constitutional values protected by the Due Process Clause and the First Amendment. For example, under the Due Process Clause, the Constitution protects the intimate relationships and family life that constitute a home. As a physical structure, the home harbors private, domestic life. Constitutional protections of the household, however, extend beyond the enclosing walls of a physical structure. These intimate features of household privacy are necessary conditions for the fulfillment of what Justice Kennedy calls dimensions of freedom that extend outward into public life. This Article demonstrates that because the home\u27s playing this role is a necessary condition for the possibility of republican self-government, the Fourth Amendment\u27s protection for household privacy is therefore also a structural check on federal and state power. With rapidly changing technology that can alter the balance between the government and its citizens, the home\u27s structural role within the Constitution\u27s system of separated powers is an overlooked feature of the Fourth Amendment. And as home personal assistant devices, doorbell security systems, and smart appliances all proliferate, so too do police requests to access stored digital information about the most intimate confines of interpersonal life. Once courts better recognize the home\u27s structural role, analysis of law enforcement access to such stored data will extend beyond questions of knowing exposure or third-party sharing to encompass questions about the systemic effects of pervasive police access to such data upon republican self-government. Conventional judicial doctrines that apply constitutional rights unmoored from their broader structural roles risk undervaluing privacy while upsetting the balance of constitutional structure. To avoid this overlooked consequence, courts need conceptual clarity about the role the home plays in both the Fourth Amendment and within constitutional structure. Rather than abandoning the idea of privacy in the face of overwhelming informational exposure and advancing technology, we can strengthen it by seeing how it protects broader claims to liberty while preserving an overlooked feature of constitutional structure resident in the home. This Article argues that the home provides a way of organizing a paradigm for privacy protections that extends not only to the confines of a physical home, but also to the person in the public sphere. By linking the liberties of the people with privacy of the home, the Fourth Amendment plays an essential structural role in protecting the household from domination by government institutions and officials. In this way, Fourth Amendment protections for the home function as much to promote political values as personal ones, thereby providing a structural check on executive power

Envisioning the Constitution

If one of the more persistent problems of constitutional interpretation, particularly of the Bill of Rights, is that we lack a clear view of it, then it would appear that how we see the Constitution is as important as how we read it. What clauses we see as connected in order to form comprehensive values, such as federalism or rights protections, are not so much products of constitutional interpretation as constitutional vision. To obtain a view of the Constitution, we have to do more than derive semantic meaning from diverse articles and clauses. To have a vision of the Constitution is to have a general attitude of attending to particular matters rather than others, of connecting these matters to others in particular ways, and of making decisions based on seeing the matters in a specific light. Vision is the mechanism and metaphor through which attention is focused on particular constitutional matters. By envisioning the Constitution, one illuminates overall structures as well as particular meanings. For example, the meaning of the Equal Protection Clause is generally not determined by an interpretation of the clause\u27s text or an interpretation of the Fourteenth Amendment, but rather by the way in which the Supreme Court is willing to look at a problem arising under the Equal Protection Clause - that is, what level of scrutiny is applied to the issue. Moreover, changed or competing visions drive substantive changes in the law. The thesis of this Article is that vision, by shaping the grounds for interpretation, is essential to constitutional law and legal theory

The Political Fourth Amendment

The Political Fourth Amendment builds on Justice Ginsburg\u27s recent dissent in Herring v. United States to argue for a more majestic conception of the Fourth Amendment focused on protecting political liberty. To put the point dramatically, we misread the Fourth Amendment when we read it exclusively as a criminal procedure provision focused entirely on either regulating police or protecting privacy. In order to see the Fourth Amendment as contributing to the Constitution\u27s protections for political liberty, and not simply as an invitation to regulate police practice, we must take seriously the fact that the Fourth Amendment\u27s textual purpose is to secure a right of the people, which places it textually alongside the First, Second, and Ninth Amendments that similarly seek to protect the right[s] of the people. Narratives focused on regulating police or protecting privacy each risk blinding us to the Fourth Amendment\u27s broader constitutional setting. By looking at the historical origins of the Fourth Amendment in relation to substantive First Amendment concerns, and examining the textual significance of protecting a right of the people, this Article argues that the two dominant narratives overlook a central political purpose of the Fourth Amendment. The political Fourth Amendment seeks to protect the political liberties of the sovereign People. Focused exclusively on protecting privacy by regulating police practice, current Fourth Amendment doctrine offers no protection to anything a person knowingly exposes to others, a hazard in an era of electronic social networking. Reading the Fourth Amendment back into the Constitution makes available new grounds for the Constitution\u27s relevance in an age of pervasive electronic surveillance

Dystopian Constitutionalism

This article describes and defends the distinctive role and rich tradition of using contrastive dystopian states in constitutional theory and practice. As constitutional tradition going back to the founding, U.S. constitutional analysis was replete with arguments about what practices would lead to an undesirable state of tyranny. In more recent constitutional history, the use of contrasting examples of the “police state,” totalitarianism, or Orwellian references have been prevalent in Supreme Court opinions across doctrinal domains, most recently making a prominent appearance at oral argument in the Fourth Amendment case, United States v. Jones. In contrast to more comprehensive constitutional theories, what differentiates dystopian constitutionalism is that it does not purport to provide a comprehensive way of understanding the Constitution. Rather, in the spirit of what Judith Shklar calls the “liberalism of fear,” it provides a way of organizing constitutional argumentation in opposition to states of government Americans might wish to avoid. It helps in understanding how to better implement constitutional principles into workable rules, not by holding up an ideal, but by urging us away from the negative alternative. In this respect, dystopian constitutionalism is focused less on obtaining an ideal state of governance than on achieving a workable system of self-governance that would avoid descent into tyranny. It has been particularly salient in criminal procedure and First Amendment cases, on which this article focuses. As a mode of argumentation, dystopian constitutional analysis uses consequence avoidance arguments often taking the form of slippery slopes. It also makes use of negative exemplars and legal archetypes — the latter first developed by Jeremy Waldron as a way of organizing our understanding of more holistic bodies of law. This article also explores how consequence avoidance arguments can be turned on their head by a different ordering of priorities. Practices once thought undesirable can lose their taint, a shift reflected in the relationship between the logical argument forms of modus tollens and modus ponens. This shift in argument form is exemplified, as this article discusses, in the contrast between the Fourth Amendment reasoning found in the 1948 case Johnson v. United States and the 2011 case Kentucky v. King. Beyond describing how dystopian analysis works, I argue normatively that there are a number of positive effects in using a dystopian analysis. One of the chief virtues of which is to encourage more holistic analysis of legal rules, which has particular salience in Fourth Amendment cases. Moreover, holistic consideration of constitutional values in service of consequence avoidance arguments does not render dystopian constitutionalism into a version of irrational “tyrranaphobia,” as some scholars have argued. Rather, methodologically it is about keeping in mind negative boundaries, and providing a grammar for talking about how to construct rules that steer us away from negative consequences. Substantively, it is about affirming national agreements on core values and commitments comprising a constitutional identity. When agreement proves elusive, dystopian constitutional analysis supplements other constitutional arguments to facilitate analysis of the more comprehensive constitutional fidelity and fit we might expect from a proposed decision