William & Mary Bill of Rights Journal
Abstract
Beginning with a 1998 article and through the editions of my treatise, I have argued that the right to be “secure” must be properly understood. The right to be secure is the powerful ability to exclude the government, and it protects against physical and technological intrusions. As will be discussed, my interpretation has had some influence among courts and scholars. Several academics have taken time to discuss it, and it has been noticed in the Supreme Court. This Essay seeks to dispel some of those characterizations and clarify the meaning of the right to be secure.
The Amendment in its first clause offers a promise and a right—each individual has the right to be “secure.” But the rest of that clause are limitations on that right. The right to be secure is the quality protected in the four objects listed in that clause—persons, houses, papers, and effects. If an object is not on the list, it is not protected by the Amendment. But even if it is on the list, only the right to be secure in that object is protected. Further, the four listed objects are protected only from governmental intrusions, but not all intrusions; only “searches” and “seizures” are regulated. If the governmental activity does not fit within the Supreme Court’s definition of those terms, the Amendment does not apply. Finally, an individual is only protected against “unreasonable” searches and seizures.
The first clause of the Amendment, by its own terms, thus raises two separate questions that must be answered. First, is the Amendment applicable? The applicability question, in turn, is a two-sided inquiry: (a) does the governmental activity—which must be either a search or a seizure—invade (b) an individual interest protected by the Amendment? If the Amendment does not apply, that ends the inquiry; it does not matter if the governmental actions are reasonable or not. Second, if the Amendment does apply, is it satisfied? The language of the Amendment demonstrates that there are two separate satisfaction inquiries: the first clause mandates that all searches and seizures not be unreasonable; the second clause sets forth the requirements for a warrant to issue. This Essay does not address Fourth Amendment satisfaction issues. It is the first question that is addressed here, focusing specifically on the meaning of the word “secure.”
This abstract has been taken from the author's introduction.