Judicial Fundamentalism, the Fourth Amendment, and Ashcroft v Al-Kidd
Virginia Journal of Criminal Law, Vol. 2, No. 1, 2013
30 Pages Posted: 15 Oct 2013
Date Written: October 14, 2013
Abstract
The Supreme Court's opinion in Ashcroft v. Al-Kidd is a classic of judicial fundamentalism. The decision held that the former U.S. Attorney General was immune from a lawsuit alleging he misused the Material Witness Statute as a pretext for detaining individuals suspected of terrorist activities. The article argues that the decision is based on an untenable interpretation of precedent, and is rooted in a fundamentalist judicial philosophy long advocated by Justice Antonin Scalia, who wrote the opinion. The article then surveys the potential impact of the decision on Fourth Amendment protections, and concludes with brief remarks on the intellectual foundations of Scalia’s judicial philosophy.
Keywords: 4th Amendment, judicial fundamentalism, Al-Kidd, material witness statute
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