{"id":4000,"date":"2010-05-16T18:52:26","date_gmt":"2010-03-27T14:00:00","guid":{"rendered":""},"modified":"-0001-11-30T00:00:00","modified_gmt":"2010-03-27T15:08:48","slug":"en-US","status":"publish","type":"post","link":"http:\/\/fourthamendment.com\/?p=4000","title":{"rendered":"New law review article on privacy under the Warren Court"},"content":{"rendered":"

Forget Privacy: The Warren Court\u2019s Regulatory Revolution in Criminal Procedure<\/a> by Eric J. Miller of the St. Louis University School of Law. Abstract:<\/p>\n

The standard story describing the Warren Court\u2019s criminal procedure \u201crights revolution,\u201d claims that the Court, motivated by liberal egalitarianism, engaged in a rights-expanding jurisprudence that made it harder for the police to search, seize, and interrogate criminal defendants. Frightened by the popular backlash against high crime rates, a cowed Court in Terry v. Ohio shifted from its rights-expanding to a rights-constricting phase, making it easier for the police to search and seize criminal suspects. Measured by this rights revolution, there were in fact two Warren Courts, a liberal and a more conservative one, emblematically separated by Terry.<\/p>\n

The standard story is wrong. The Warren Court\u2019s Fourth Amendment jurisprudence cannot be separated into rights-expanding and contracting phases. Rather than introducing a privacy right, the Warren Court, from the early 1960s onwards, mounted a consistent attack on pre-existing versions of the right to privacy. Rather than a privacy-protecting rights regime, the central Fourth Amendment right under the Warren Court was personal security. Extending security into areas hitherto unregulated by the law was a major concern of the Terry Court: an expansionist Terry cannot be squared with a Court in retreat in response to public outcry over crime rates.<\/p>\n

Worse, the story produced a barren doctrinal and political account of the Fourth Amendment. Focusing on equality, anti-discrimination, and privacy too easily paints law enforcement as a repressive force whose power and numbers should be severely limited. This narrow liberalism has turned progressive attention away from the vital and difficult task of generating a doctrinal and political account of policing: its justification, intrinsic limits, and proper means of regulation. <\/p><\/blockquote>\n","protected":false},"excerpt":{"rendered":"

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