Democratic Searches and Seizures

hands_up.jpegThe Fourth Amendment protects us from unreasonable searches and seizures. In the subway case upholding random searches of bags, Dan criticizes the court for giving too much deference to the police department.

I disagree.

The subway searches are a good example of what I call democratic searches and seizures. The basic idea is this: if a search or seizure is authorized by a majority of the community—the best evidence being that it occurs pursuant to a validly enacted law—and the members of that majority are themselves subject to the search or seizure, then the search or seizure is reasonable.

Under this standard, the search or seizure is democratic in two senses: a democratic majority approves it and a democratic majority is subject to its effects.

If both of these conditions are met, courts should not invalidate the search as unreasonable under the Fourth Amendment.

The subway case therefore becomes easy. A majority of New Yorkers approve of the searches as a tool against terrorism. The same New Yorkers understand that, as subway riders, they might find their bags being searched. The searches are reasonable.

Another example: A majority of the residents in a public housing community decide that, in order to combat a persistent problem of drug-related crime, in that community, the police will be entitled to conduct unannounced searches of residents’ homes. The residents voting in favor of the policy are themselves subject to the search. The search policy is therefore reasonable.

Justice Breyer supported something like the democratic approach in his concurring opinion in Board of Education v. Earls (2002), in which the Supreme Court upheld a school district policy requiring students, as a condition of participating in extracurricular activities, to submit to drug testing. Breyer emphasized that before adopting the policy, the “school board provided an opportunity for the airing of . . . differences at public meetings designed to give the entire community the opportunity to be able to participate in developing the drug policy.” The example is not perfect: it assumes that the people at school board meetings, if they are not students themselves subject to drug testing, are the parents of students and adequately represent the student’s interests. But it too suggests the value of a democratic approach to searches and seizures.

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16 Responses

  1. Cathy says:

    I think this reasoning essentially destroys the 4th amendment entirely.

    Take, for example, selling heroin. The majority of people think that selling heroin is wrong. The majority of people don’t do it. But because they have democratically agreed, with their majority, that selling heroin is wrong,

    (a) they now are subject to being searched for evidence pertaining to heroin dealing

    (b) and they heroin dealers are subject to being searched as well.

    Ah, then you say, but only the heroin dealers will get caught!


    (a) Anyone subject to any search loses their privacy, regardless of whether or not they had anything to conceal (and what if instead of finding heroin, the police then found marijuana – has the majority decided that it is equally wrongful?), and

    (b) The heroin dealers get caught with their heroin and go to jail.

    But I didn’t think that the American sense of jurisprudence allowed for that kind of quid pro quo – even criminals are entitled to privacy protections. The 4th Amendment does not read, “The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated UNLESS THEY ARE DOING SOMETHING WRONG.”

    The “reasonable” language of the 4th Amendment applies to whether there is a reasonable suspicion of THAT person doing something wrong. Not that there is a reasonable suspicion that someone, somewhere is doing something wrong. Which seems to be what your rationale, and indeed that of the New York police, seems to be based upon.

  2. KipEsquire says:

    So Gallup Polls now trump the Fourth Amendment?

    I’ve tried to be civil, but I have to say I’m very glad I graduated from BrookLaw before you showed up there.

  3. Democratic searches and seizures?

    Over at Concurring Opinions they are discussing the recent federal court decision allowing the New York City police’s searching of subway patterns. I think this is a frightening decision, and I agree with law prof Daniel Solove’s explanations for why….

  4. Mike says:

    [I]f a search or seizure is authorized by a majority of the community … and the members of that majority are themselves subject to the search or seizure, then the search or seizure is reasonable.

    But here’s the problem: The “majority” will act and look a certain way. They are, in a word, normal. They thus will not likely arouse anyone’s attention. The majority will not bear the burden of this law.

    Rather, the burden will fall on those who don’t look, act, talk, and dress like the majority. So by your very definition, your argument fails, since the majority will not, in practice, be “subject to the search.”

  5. JT says:

    What other rights are subject to “democratic” limitation? Is the principle here just that when a majority agrees to limit a right in such a way as to limit that right for a majority of people, that limitation is legitimate? Consider speech, e.g., of the right to a jury trial. We are all subject to those, in principle, and may wish to dispense them for the sake of more efficient trials. It doesn’t follow that we should dispense with the right.

    The worst part of this argument is that it implicitly relies on the premise that the searches will decrease terrorist attacks (The majority approves of the searches “as a tool against terrorism.”) I take it that we only consider effective means ‘tools’. After all, a broken screwdriver isn’t a tool against loose screws. The better way to phrase the issue is that New Yorkers prefer searches, so long as those searches in fact reduce the likelihood of terrorist attacks. But what if there is no good evidence that the searches are a tool against terrorism – rather they are a tool simply to assuage public fears (which seems to be the case)? That is, the public is wrong. Would they approve if they knew it was wrong? Doubtful. In fact, if you phrase in the most accurate way: “do new yorkers prefer searches that do nothing to reduce the likelihood of terrorist attacks, but do something to deceive people into thinking that attacks are less likely, while at the same time taking resources away from other activities that would in fact reduce terrorist attacks, reduce other crime, or save tax money?” Then the answer would be a resounding ‘no.’

  6. Paul Gowder says:

    I’ve been staying out of this debate, largely because Dan can easily take care of himself, but this argument is simply nuts. A substantial part of the whole point of the constitution is to guard against short-term majority thinking, especially as it pertains to public panic. Where does this stop? How many freedoms are the people to give away based on short-term thinking? Can the majority legislate “nobody can criticize the government?” How about “we don’t really need jury trials anymore?”

  7. Paul Gowder says:

    Hah, JT beat me to it.

    I want to hear Jason give a principled distinction between searches and any other constitutional right, and, if he can’t, I want to hear him explain how, if his principle were law, we’d have any kind of a constitutional state at all.

  8. Crime says:

    The “Generally Applicable” Fallacy

    Jason Mazzone, blogging at Concurring Opinions, has this thought-provoking post on the Fourth Amendment: The Fourth Amendment protects us from unreasonable searches and seizures. In the subway case upholding random searches of bags, Dan criticizes the …

  9. Blaine says:

    I like it.

    The argument is process based, and doesn’t rely on the premise that searches will prevent terrorist tacks. It only protects the majority’s ability to make that determination. It’s reminiscent of John Hart Ely (of whom I’m a big fan) that wants to limit judicial invalidation of democratic legislation to cases where there is an actual impairment in the democracy. So, when a group either doesn’t get to vote, or is animused-out (see, e.g. Roemer v. Evans), then THAT is a reason for Courts to invalidate.

    This doesn’t mean the Constitution is no more than democracy. It just interprets enactments that are enacted by the majority, and fall on the majority, as 4th Amendment “reasonable. Mike’s arguments are interesting, but I think they go to inconsistent enforcement, not the theory per se. That is, if the subway searches were validated, but then were only utilized against Arabs, then you would have an Ely-like problem because the statute is de facto animus-ing a subset of society. Extending the theory, we keep all the race, gender, religion, national origin protections, as well as even Lawrence (though, in my view, on Equal Protection grounds).

    Anyway, I dig it. I argued something similar the other day against Roe. I don’t understand Constitutionally created privacy rights that apply to everyone.

  10. Secondary Screenings on the Subways

    There’s a fine debate — ahh, hell, call it a mêlée — going on over at the malapropblog, Concurring Opinions. A recent decision upholding the legality of random searches of New York City subway passengers set off the infighting. Here’s…

  11. Paul Gowder says:

    Fine, Blaine, you get the same challenge as Jason: Explain a principled way to distinguish between those constitutional rights that do get to be waived by the majority and those that don’t.

    For bonus points, you can explain how this doesn’t read the amendments clause out of the constitution.

  12. Paul Gowder says:

    2. If your argument is premised on the warrant requiement, you also get to explain why the following Act of Congress, enacted by represntatives whose supportive constituentcy vote = 50% of the U.S. population + 1, would be unconstitutional, if you agree that it would be so:

    Heretofore, no warrants shall be required for any search. Any police force may search the persons or property of any person suspected of a crime with no further process required.

  13. Paul Gowder says:

    (excuse me, I meant the reasonableness requirement, not the warrant requirement)

  14. JT says:


    It certainly does rest on the premise that the searches will impede terrorist attacks, so long as the people voting for it think that it does, and think that the police have a good reason to think that it does. If they mistakenly believe that (and it is a mistake), then the process is flawed, and relying on the fact that its procedural – and therefore respects their rights to decide – is also a mistake. Where they have mistaken beliefs, based on deceit (i.e., the claim that the searches will deter), they’re being defrauded.

  15. Thomas Jefferson says:

    But see, Marbury v. Madison

  16. Moz says:

    I wan’t aware that only subway users got to vote on the subway search laws.

    As it is the laws were voted on by people representing subway users *and* a heap of other people. I doubt that those voting use the subway themselves, and I wonder how many of the people who voted for said reps do?

    The trouble with representative democracy (or the point of, if you follow the US founders logic) is that representatives often fail to follow the will of their electors, let alone the will of their electorate (which, because the US has partial suffrage, is not the same as the pool of eligable voters).