The Case for Rational Basis Review of General Suspicionless Searches and Seizures

Abstract

This Article examines the constitutional status of suspicionless searches and seizures of groups—an exceedingly important question in an age of terror, and a subject recently brought back to the forefront by the searches of subway passengers in New York City. It draws on process theory to argue that when a legislature has authorized a group search or seizure, courts should generally apply rational basis review. First, other areas of constitutional doctrine exhibit deep trust in the power of groups to protect their interests in the political process, and there is no reason why the Fourth Amendment should not do the same. Second, the Fourth Amendment guarantees only reasonableness or cost-effectiveness, which legislatures are particularly competent at determining and are normally trusted to do. Finally, the legislative process, if anything, exhibits a bias in favor of too few general searches and seizures: the costs of general searches and seizures are relatively concentrated and visible, while the benefits to law enforcement are diffuse and invisible, which means that advocates of more privacy should have an organizational advantage. No previous law review article has elaborated all of these reasons for deferential review, much less in this depth. The Article makes three other contributions to the literature. It details the process failures that should justify more intrusive review, including excessive executive discretion and burdening of certain minorities. It provides a thorough critique of recent doctrine, including the Edmond and Chandler cases. Finally, it debunks the original meaning objections to the political process approach. Most of all, the Article provides a fresh look at general searches and seizures. The typical law review article analyzes these practices with a narrow and critical Fourth Amendment lens. This Article adopts a more comprehensive constitutional perspective, and arrives at the surprising result that judicial review of these practices is too intrusive.