Fourth Amendment Localism, 93 Ind. L.J. forthcoming, Wayne A. Logan (June 2, 2017). Abstract:
Despite their many differences, Americans have long been bound by a shared sense of federal constitutional commonality, believing that the U.S. Constitution means the same thing in Atlanta and Anaheim and in Austin and Amarillo. With respect to the Fourth Amendment in particular, the Supreme Court has maintained that it is “enforceable in the same manner and to like effect” nationwide and does not “vary from place to place,” avoiding citizens being subject to “arbitrarily variable protection.” Of late, however, several leading scholars have argued that Fourth Amendment doctrine should in effect be localized: that courts should defer to the preferences of local political branch actors.
In doing so, they align themselves with a broader literature that extols local constitutionalism more generally, invoking as precedent for instance the requirement that local juries determine if material is obscene for First Amendment purposes. If localism works for the First Amendment, and the Second Amendment, as also recently asserted, why not the Fourth Amendment? Or are the interests that the Fourth Amendment protects sufficiently distinct such that they should not be allowed to hinge on local preference? This article examines these and other important questions. In doing so, it explores a structural constitutional issue of major theoretical and practical importance in our federalist system, and offers, going forward, an analytic rubric that allows the benefits of localism to accrue while avoiding its many pitfalls.