Sovereignty and Suspicion

Abstract

Academics are virtually unanimous that search and seizure law is a mess, with vacillating interpretations producing a thoroughly confusing and unwieldy doctrine. Although legal scholarship has offered a variety of solutions to the muddle, few authors have attempted to connect Fourth Amendment jurisprudence with overarching theoretical justifications. Instead, critics have either described the Court's precedents or prescribed change within the narrow confines of criminal procedure law. What is needed is a framework that unites the Fourth Amendment with modern constitutional theory. Professor Luna proposes a new approach founded on a sovereignty-based theory of the Constitution. Under this model, government searches and seizures of an individual's zones of personal sovereignty receive the strongest presumption of invalidity. Absent one of three theoretically consistent exceptions, government intrusions into the body and home are beyond the boundaries of official authority. By protecting zones of personal autonomy, the individual rights model fits the constitutional text, context, and precedents while providing a theoretical justification that connects neo-Kantian philosophy and American constitutionalism. Professor Luna contrasts the individual rights model with what he calls an approach to the Fourth Amendment, which focuses on group participation in the political process rather than coercive effects on the individual. He identifies an important flaw in the antidiscrimination model: the lack of a constitutional floor protecting individuals and constraining government. Professor Luna's individual rights model provides content to that constitutional floor--tangible zones of individual sovereignty.