LawFare: The Fourth Amendment Doesn’t Recognize a General “Right to be Secure” by Orin Kerr:
I sometimes hear an argument in Fourth Amendment circles that the Fourth Amendment guarantees a “right to be secure.” The argument comes in different forms from different scholars, but I would summarize it something like this:
The text of the Fourth Amendment does not provide a right to privacy. Instead, it provides a right to be secure. To be true to the text of the Fourth Amendment, government action that interferes with the people’s right to feel secure should be held to violate the Fourth Amendment. Because government practice [insert example here] gives the government so much power, it interferes with the People’s right to be secure against the government and violates the Fourth Amendment.
An example of scholarship that I take to be making this kind of argument is Jed Rubenfeld’s article, The End of Privacy, 61 Stan. L. Rev. 101 (2009), although I mention that just as one example.
I don’t find the “right to be secure” argument persuasive, and I thought I would say why.