Academic journal article Harvard Law Review

The Fourth Amendment's Third Way

Academic journal article Harvard Law Review

The Fourth Amendment's Third Way

Article excerpt


Scholars agree on very little concerning the Fourth Amendment, but one of the few propositions that nearly everyone accepts is the almost incomparable incoherence of its doctrine. Professor Lloyd Weinreb calls the jurisprudence "shifting, vague, and anything but transparent." (1) Professor Akhil Amar criticizes it as "a vast jumble of judicial pronouncements that is not merely complex and contradictory, but often perverse." (2) Professor Anthony Amsterdam politely observes that "[f]or clarity and consistency, the law of the fourth amendment is not the Supreme Court's most successful product." (3)

This Note confronts a "fundamental question about the fourth amendment" that lies beneath all of its doctrinal puzzles, namely, "what method should be used to identify the range of law enforcement practices that it governs and the abuses of those practices that it restrains." (4) It does so, in particular, by examining the relationship between the Fourth Amendment and state law. This Note argues that the Amendment should be interpreted as dynamically incorporating state law, and it explains how this interpretive method injects substantive legal content into the vague constitutional text and reconciles the tension between the Amendment's two clauses. (5) It contends that the dynamic incorporation method is pragmatically and normatively superior to the major alternatives while remaining justified by constitutional theory.


This Part outlines and contrasts two methods of interpreting the Fourth Amendment that currently have traction in the doctrine. Although these methods are in some ways complete opposites, both stand in contrast to a third method, dynamic incorporation, which has roots in a much older, now-discredited line of Fourth Amendment precedent.

A. Social Convention

The dominant approach toward Fourth Amendment doctrine over the past half-century has centered on the notion of social convention. This is perhaps sensible, as the Fourth Amendment itself speaks in the language of reasonableness, and in the real world at least, what is reasonable is a function of society's norms and practices.

The Court most decisively embraced social convention as a source of legal content for the Fourth Amendment in Katz v. United States, (6) which held that the Fourth Amendment protected a conversation in a public telephone booth. (7) The doctrine has closely tracked Justice Harlan's concurring opinion: "My understanding of the rule ... is that there is a twofold requirement, first that a person have exhibited an actual (subjective) expectation of privacy and, second, that the expectation be one that society is prepared to recognize as 'reasonable.'" (8) Ultimately, both of Justice Harlan's prongs reduce to the concept of social convention, and indeed, courts rarely assess the two prongs independently. (9)

Katz was "a watershed in fourth amendment jurisprudence" (10) because it actually defines the scope of the Fourth Amendment. It is true that the reasonable expectation of privacy test answers only the threshold question of what constitutes a search, but this formulation masks the true importance of the inquiry. Because warrantless searches are presumptively unreasonable and therefore violate the Constitution, the central question in the context of any warrantless search is whether a search occurred at all.

Furthermore, the language of Katz has permeated all sorts of other Fourth Amendment reasonableness inquiries. Although the Court has adopted a presumptive warrant requirement, it has also carved out a multitude of exceptions and exemptions. (11) Many of these exceptions are premised on notions of reasonableness, and their limits are correspondingly bounded by what is reasonable. Thus, when Katz's dictates are imported into these doctrinal nooks and crannies, it is clear that social convention has become the defining ideal of the Fourth Amendment--the source of authority that gives reasonableness its shape. …

Search by... Author
Show... All Results Primary Sources Peer-reviewed


An unknown error has occurred. Please click the button below to reload the page. If the problem persists, please try again in a little while.