FOURTH AMENDMENT FAIRNESS.

• Author: Re, Richard M.

Fourth Amendment doctrine is attentive to a wide range of interests, including security, informational privacy, and dignity. Flow should courts reconcile these competing concerns when deciding which searches and seizures are "unreasonable"? Current doctrine typically answers this question by pointing to interest aggregation: the various interests at stake are added up, placed on figurative scales, and compared, with the goal of promoting overall social welfare. But interest aggregation is disconnected from many settled doctrinal rules and leads to results that are unfair for individuals. The main alternative is originalism; but historical sources themselves suggest that the Fourth Amendment calls for new moral reasoning.

This Article argues that the Fourth Amendment's prohibition on "unreasonable searches and seizures" is best understood, at least in large part, as a requirement that police investigation be fair in the sense of being authorized by principles that no rights holder could reasonably reject. This approach is inspired by "contractualist" moral philosophy and has several advantages. It tracks widely held moral intuitions, comports with the Fourth Amendment's historical meaning, and resonates with underappreciated currents in extant case law. In attending to the perspectives of individuals, contractualism generates rights that are not subject to interest aggregation. At the same time, contractualism suggests a principled way to address new Fourth Amendment questions, consistent with courts' institutional role.

A contractualist approach to Fourth Amendment fairness suggests many ways to refine or reform current doctrine. In terms of refinements, the contractualist approach gives moral content to the notion of "individualized suspicion" by showing when searches and seizures can be justified by a principle of individual responsibility. Contractualism also draws attention to other justifying principles, such as a protection principle, and so explains how and when suspicionless searches and seizures are reasonable. Finally, the contractualist approach identifies areas where current Fourth Amendment doctrine is decidedly unfair and ripe for reform, such as when courts limit rights to avoid diffuse litigation costs, overemphasize "reasonable expectations of privacy," and ignore the unreasonableness of racial discrimination.

TABLE OF CONTENTS INTRODUCTION I. FORMS OF FAIRNESS A. History B. Interest Aggregation C. Contractualism II. SOURCES OF FAIRNESS A. Responsibility B. Protection C. Consent D. Curiosity E. Helpfulness III. SOURCES OF UNFAIRNESS A. Excessive Burdens B. Collateral Burdens C. Invidious Criteria CONCLUSION INTRODUCTION

Does the Fourth Amendment have a first principle? (1) Consider the following scenario, which is inspired by real events:

To detect, deter, and prosecute terrorists, the federal government develops a surveillance program that uses cell-site location records to monitor the public movements of almost everyone in major cities. (2) A computer program then mines the resulting population data to identify suspects for additional police investigation. (3) The program considers whether people are of Arab descent, treating that factor as a reason for carrying out extra investigation. (4) This scenario raises many interconnected Fourth Amendment issues. The government is pursuing an important antiterrorism interest. It is using an algorithm to draw inferences from a large amount of arguably nonprivate information. And it is drawing racial categorizations. Competing concerns include security, privacy, and equality. What principle can fairly balance these interests and thereby disclose whether the scenario involves "unreasonable searches and seizures"? (5) What does it mean to say that something is constitutionally "unreasonable," anyway? (6) Scholarship and case law suggest three types of answer.

The first way to give meaning to "unreasonable searches and seizures" involves recourse to history. The Supreme Court has said that the Fourth Amendment secures, "at a minimum," those rights protected by law at the founding. (7) The meaning of "unreasonable searches and seizures" is thus partly frozen in time. But that ostensibly historical approach is itself historically dubious. In using open-ended language and referring to the ever-evolving common law notion of reasonableness, the Fourth Amendment established a broad principle, rather than codifying any fixed set or version of eighteenth-century doctrines. (8) Moreover, it is hard to credit the idea that founding-era law alone could answer the challenges posed by new social and technological circumstances. In the face of new challenges, the only feasible approach is to extract a principle from the Fourth Amendment and reason based on it. The Court itself has recognized as much in framing history as establishing only a "minimum" level of protection--not a maximum. (9) And in several cases involving new technologies, even the Court's originalist jurists have joined opinions that endeavored to reason about reasonableness. (10) In short, recourse to history only defers the hard, unavoidable question of just what makes a search or seizure "unreasonable."

The second way to identify unreasonable searches and seizures is to engage in some form of interest aggregation. Alas, the Court is not rigorous or consistent in its use of interest aggregation. For instance, the Court is unclear what interests count or how they are to be compared. As a result, commentators have variously glossed this aspect of the Court's methodology as a crude form of utilitarianism or cost-benefit analysis. (11) For present purposes, however, the key is that the Court is often prepared to ascertain unreasonableness by adding up benefits and costs and choosing the legal option that is most likely to maximize overall welfare. For example, the Court routinely rejects proposed Fourth Amendment rules because they would generate costly litigation. (12) These decisions assume that the propriety of searches and seizures can be assessed based on the aggregate costs and benefits to society at large.

Interest aggregation is problematic for several reasons. First, it conflicts with widely held intuitions about the nature of Fourth Amendment rights. For an interest aggregator, individual rights must sometimes be set aside for the sake of social welfare. But the Fourth Amendment is often thought to protect individuals from unfair burdens, even when those burdens are net beneficial to society at large. Second, Fourth Amendment doctrine is characterized by principles, like the individualized suspicion requirement, that are in tension with interest aggregation and seem instead to have a deontological foundation. Finally, interest aggregation puts the judiciary in a weak institutional posture and so tilts the scales of justice toward the government. (13) To find Fourth Amendment violations, judges engaged in interest aggregation must either question the government's relatively expert view on issues of social policy, or else conjure fears of governmental overreach. Either approach places the courts in the uncomfortable position of assuming the worst about the elected branches. (14)

That leaves the third way of identifying "unreasonable searches and seizures"--namely, to argue from deontological moral principles. (15) This Article advances a version of that third approach by arguing that contractualist moral principles should inform judicial application of the Fourth Amendment's Reasonableness Clause. Taking inspiration from T.M. Scanlon's influential theory of moral permissibility, (16) this Article contends that a search or seizure is unreasonable when any principle that permitted it would be one that a Fourth Amendment rights holder could reasonably reject. Thus, competing interests are compared on a person-to-person basis, rather than summed. This contractualist approach to Fourth Amendment fairness is linked to reasonableness because both concepts are concerned with interpersonal justifiability. When a principle of conduct is fair or reasonable, people can understand and respect the reasons behind it, even if the consequences are to their own personal detriment. (17) That approach is at odds with interest aggregation. Oftentimes, an action that is net beneficial to society at large might impose severe burdens on individuals and so be rejected as unfair. (18) Contractualism thus draws our attention away from tallies of abstract interests and toward the perspective of the disadvantaged. More broadly, contractualism provides a way to justify and explore the intuition that the Fourth Amendment affords strong individual rights, even against aggregated interests.

Already, courts and litigants engage in theoretically thin moral reasoning when they engage in interest aggregation or raise deontological arguments within the interstices of extant doctrine. This Article aims to surface and refine those latent strands of moral reasoning. But precisely because it rests on a moral theory, a contractualist Fourth Amendment has certain limitations. While contractualist reasoning can often tell decisionmakers which empirical questions to ask, it cannot reveal how to resolve disputed points of fact. So whenever relevant empirical issues turn out to be contested, a contractualist Fourth Amendment will be as well. Moreover, contractualism is itself a contested view within philosophy, and some legal scholars plausibly doubt than any one theory of the Fourth Amendment can be entirely satisfactory. (19) Yet contractualism can be useful for interpreters who consider history and interest aggregation. Even if the Fourth Amendment has no one master principle, (20) contractualist reasoning can still operate within Fourth Amendment doctrine, surfacing unfairness that would otherwise be overlooked or brushed aside. (21)

Greater attention to contractualist reasoning would have many implications, including for...