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Unpublished Paper
The Fourth Amendment as a Collective Right
ExpressO (2009)
  • Thomas K Clancy, University of Mississippi
Abstract

The article presents a cautionary message about the evolution of Fourth Amendment analysis from protecting individual rights to collective security. It recounts how the Amendment has been traditionally interpreted to safeguard the rights of individuals and that, for most of the history of the United States, the view that the Fourth Amendment served to protect individual security was so patently obvious that it needed no support. Yet, the collective security model has been rapidly gaining momentumBand not just in response to terrorist attacks on the United States. Analytical support for it is now found in a broad swath of Supreme Court case law, permitting an increasing number of suspicionless governmental actions designed to further collective ends. In gravitating toward the collective security model, the Court has not cut back rhetorically on its long history of interpreting the prefatory words in the Amendment ("The right of the people to be secure") as an individual right; instead, the Court has construed other terms of the Amendment ("search," "seizure," and "unreasonable") in a manner to advance collective security concerns. The article examines the underpinings and ramifications of the individual security and collective security models and the trend toward the latter approach. I argue for rejecting the primacy of collective security as a main interpretative approach to the Amendment and maintain that that approach is illusory and inimical to the fundamental premise--and promise of the Amendment--the protection of individual security.

Disciplines
Publication Date
February 3, 2009
Citation Information
Thomas K Clancy. "The Fourth Amendment as a Collective Right" ExpressO (2009)
Available at: http://works.bepress.com/thomas_clancy/1/