This paper is a critique on Professor Orin Kerr’s article An Equilibrium-Adjustment Theory of the Fourth Amendment. In the article, he articulates an equilibrium-adjustment theory arguing that the amendment should be construed as aimed at maintaining the balance of power amid government and the citizens. This theory is based on originalism; essentially that the original purpose of the amendment should be the principal guide to its application, whether by the courts or the government and its assigns. From a philosophical perspective, this theory is outstanding, but in reality it poses great challenges given that the circumstances existing then are no way similar today.
The fourth amendment was enacted to the Constitution in 1791 as a protection against unreasonable or unfair searches and seizures. It requires that before a search is conducted, it has to be backed by a warrant issued by a court. The person intending to do the search, in most cases law enforcement officers, must justify the search with a probable cause. Once the court is convinced of the probable cause, it issues the warrant. The scope of the warrant is limited to the information given by the officer.
The amendment was necessitated by what was regarded as expressive political violence (Taslitz, 4). Prior to its enactment, search and seizure was arbitrary done, invariably without any substantiation of wrong doing. As the searches were not regulated, it resulted to use of violence by state officers and unjustified and illegal seizure of property. According to Kerr, the amendment was deemed necessary as a balance between the state’s duty to protect the citizens and the citizen’s rights (Orin, 479).
Evidently from the foregoing, one can see the basis of Professor Kerr’s theory. However from the onset, the theory can be faulted for emphasizing the circumstances of 1791 while ignoring the present. While it is important to have the purpose of the amendment in mind, one cannot simply overlook the fact that the problem back then is radically different today. For instance, while a search back then was defined in terms of intrusion, today a search can be conducted without any incursion. The theory here fails to explain how such a search impairs the balance between the state and the citizen.
Again the theory has little jurisprudential foundation based on the reasoning of the Supreme Court in relation to the amendment. While the Court has heard the ‘ balance argument’ many a times, most decisions have construed the amendment in terms of privacy expectations. The reasoning being that if the citizen does not expect any privacy, then a search would not be an infringement of their privacy rights, thus the amendment does not apply. Without such jurisprudential basis, one fails to see how or when the theory applies.
The fact that Professor Kerr’s theory is based on the original intent, it requires that we draw from analogies in the past. This poses a great problem where there are no analogies or there is little information relating to the analogy in question. Take for instance what has been referred to as special needs case where searches have been premised on regulatory authority like checkpoints and roadblocks. These searches have no analogy from the past and they essentially render the theory of little use in interpreting the amendment. Professor Kerr himself acknowledges the challenges posed by these cases and suggests a new or special category for them. If he acknowledges new circumstances, one wonders why his theory emphasizes on past circumstances.
The theory can also be criticized for failing to acknowledge that norms have changed. The normative standard in 1791 is absolutely different from that existing today. Interests too have changed over time. For instance, while in the 1800s it was thought that property rights was the primary purpose of the amendment, the same changed to emphasis on privacy. This was more of a normative than a legal change. Essentially then, it is important to take into account changing norms. That the theory fails to appreciate changing norms, its applicability can be rightly questioned.
In conclusion therefore, while the theory offers a great explanation as to the origin and intent or purpose of the amendment, it does little to provide effective guidance on how the amendment should be applied today. Without such guidance, and especially to courts, it can be said that it contributes little to the developing jurisprudence on the Fourth amendment.
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Orin, K. “ An equilibrium-Adjustment Theory of the Fourth Amendment” 125 Harvard Law
Review. 2011: 476-542. Print.
Taslitz, A. E. Reconstructing the Fourth Amendment: A History of Search and Seizure. New
York, New York University Press, 2006. Print.