Property, Privacy and Power: Rethinking the Fourth Amendment in the Wake of U.S. v. Jones
62 Pages Posted: 12 Jun 2014
Date Written: January 1, 2013
This Article seeks to uncover invisible gender, race, and class biases driving modern Fourth Amendment discourse. Unlike traditional theories, which tend to view the Fourth Amendment through the lens of either privacy or property, this Article advances a theory focusing on the real issues of power and control that fuel Fourth Amendment jurisprudence. Specifically, the Article exposes the private/public and home/market dichotomies that are central to the Supreme Court rhetoric as arbitrary and artificial. It finds that current Fourth Amendment discourse protects the interest of white, privileged men and perpetuates male ideology as well as male domination. That focus leaves women, people of color, and those less privileged, unprotected. In opposition to that discourse, this Article offers a re-reading of the historical sources of the Fourth Amendment in a way that re-emphasizes the amendment’s core: curbing subordinating power. It broadens the traditional focus on power abuses of one’s privacy or property and argues that we need to conduct Fourth Amendment inquiries through a prism of multiple, web-like hierarchies. To that end, the Article explores several possibilities of modeling an alternative, feminist Fourth Amendment, including articulating the Fourth Amendment around an antisubordination principle, employing a multi-focal approach to Fourth Amendment adjudication, and infusing search and seizure law with multiple perspectives in the form of personal narratives.
Keywords: fourth amendment, privacy, subordination, anti-subordination, feminist jurisprudence, public-private discourse
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