Articles & Essays
The Effect of Legislation on Fourth Amendment Protection

Orin S. Kerr*

When judges interpret the Fourth Amendment, and privacy legislation regulates the government’s conduct, should the legislation have an effect on the Fourth Amendment? Courts are split three ways. Some courts argue that legislation provides the informed judgment of a coequal branch that should influence the Fourth Amendment. Some courts contend that the presence of legislation should displace Fourth Amendment protection to prevent constitutional rules from interfering with the legislature’s handiwork. Finally, some courts treat legislation and the Fourth Amendment as independent and contend that the legislation should have no effect.

This Article argues that courts should favor interpreting the Fourth Amendment independently of legislation. At first blush, linking the Fourth Amendment to legislation seems like a pragmatic way to harness the experience and skills of the legislature to help implement constitutional values. A closer look reveals a different picture. Investigative legislation offers a surprisingly weak indicator of constitutional values. Linking the Fourth Amendment and statutes raises novel and complex questions of what links to draw and how to draw them. Linkage also threatens to weaken statutory privacy laws by turning the legislative process into a proxy battle for Fourth Amendment protection. Interpreting the Fourth Amendment independently of legislation avoids these problems. Independence limits arbitrary decisionmaking, provides a clear standard, and helps to protect the benefits of legislation.


* Fred C. Stevenson Research Professor, the George Washington University Law
School. Thanks to Paul Ohm, Barry Friedman, Richard Re, Adrian Vermuele, Daniel Solove, Christopher Slobogin, Catherine Crump, Daphna Renan, Andrew Woods, Jennifer Daskal, Andrew Ferguson, Bryan Choi, Margot Kaminski, Marc Blitz, Sharon Franklin, Alvaro Bedoya, Chip Lupu, Kiel Brennan Marquez, Maria Ponomarenko, Peter Smith, Ed Swaine, Peter Margulies, Phyllis Goldfarb, Tom Colby, Matthew Tokson, David Thaw, and David Fontana for comments on an earlier draft.


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