The Forgotten Right to Be Secure

Abstract

Courts and most commentators interpret the Fourth Amendment to safeguard a mere right to be “spared” unreasonable searches and seizures. A study of the amendment's “to be secure” text suggests it can be read more broadly: to guarantee a right to be “protected” against unreasonable searches and seizures, and possibly a right to be “free from fear” against such government action. Support for these broader readings is found in the original meaning of “secure,” the amendment’s structure, and founding-era discourse on searches and seizures. A new interpretive emphasis on "secure" would provide various doctrinal benefits, most notably in regards to standing limitations and the exclusionary rule.

Keywords: Fourth Amendment, Privacy, Surveillance