William & Mary Bill of Rights Journal
Abstract
The home enjoys omnipresent status in American constitutional law. The Bill of Rights, peculiarly, has served as the central refuge for special protections to the home. This constitutional sanctuary has elicited an intriguing textual and doctrinal puzzle. A distinct thread has emerged that runs through the first five amendments delineating the home as a zone where rights emanating from speech, smut, gods, guns, soldiers, searches, sex, and self-incrimination enjoy special protections. However, the thread inexplicably unravels upon arriving at takings. There, the constitutional text omits and the Supreme Court’s doctrine excludes a special zone of safeguards to the home. This revelation raises unsettled questions as to why takings is the disjointed outlier. Prior scholarship has addressed this constitutional schism by observing that judicial deference to economic legislation, as opposed to exacting scrutiny to fundamental rights, has constrained the Court from extending the thread to takings. However, there are more unexplained scattered pieces to this constitutional puzzle that deserve further scholarly attention.
This Article unearths another obscure schism in the thread of special protections to the home in the Fourth Amendment. While the Court’s solicitude of home protections remain unassailable in rights involving speech, smut, gods, guns, soldiers, sex and self-incrimination, notwithstanding takings, there has been an inconspicuous rollback—a doctrinal regression—of the home’s zone of special protections under the Court’s search and seizure doctrines. There, the Court has developed a patchwork of exceptions sanctioning greater government intrusions in the home. These exceptions that weaken home protections in the Fourth Amendment stand in stark contrast to the Court’s ironclad consistent homebound doctrines that shield the home in the rest of the Bill of Rights. Why, then, has the Court partially retreated from this special zone of rights and interests under its search and seizure doctrine, but nowhere else in the Bill of Rights?
This Article is the first scholarly project to comprehensively catalogue and systematically survey the entire homebound Bill of Rights to reveal this doctrinal and textual discord presented by the Court’s partial backsliding from home protections in its searches and seizures jurisprudence. The Article excavates a variety of reasons and explanations for the notable discord and concludes by raising some theoretical and conceptual considerations for the doctrinal retrenchment.