Document Type
Article
Publication Date
1993
Publication Information
1993 Pub. Int. L. Rev. 41.
Abstract
Traditionally the "right of privacy" concerned the security of certain places (chiefly, one's home) and, to a lesser extent, materials (books, papers) that were especially self-revealing. This right of privacy makes eminent philosophical sense, and it is protected by explicit constitutional guarantees, conspicuously including the Fourth Amendment, which provides that "[t]he right of the people to be secure in their persons, houses, papers, effects, against unreasonable searches and seizures, shall not be violated." The Rehnquist Court has regularly accorded less weight to this privacy in the "balance" against "law enforcement interests" than did the Warren and Burger Courts. Expanded authority to conduct warrantless searches and a diminished exclusionary rule are exemplary cutbacks. Another is an increasingly discriminating Fourth Amendment gatekeeper inquiry: Is there (as the foundational 1967 decision in Katz v. United States asked) "a legitimate expectation of privacy" in the thing seized or searched? If not, there is no Fourth Amendment activity and no basis for constitutional scrutiny by judges. I shall not further pursue the fortunes of this privacy in the Supreme Court, save to note that there are good reasons for thinking that the pattern just described will hold. One reason is that William Rehnquist was the dominant force in establishing the pattern, even before he became chief justice. Another is our society's seemingly uncontrollable violent crime.
Recommended Citation
Gerard V. Bradley,
The Right of Privacy, Sustained,
1993 Pub. Int. L. Rev. 41..
Available at:
https://scholarship.law.nd.edu/law_faculty_scholarship/1666
Comments
Abstract from introduction.