Publication Date

Fall 2020

Volume

96

Document Type

Article

Abstract

A refuge, a domain of personal privacy, and the seat of familial life, the home holds a special place in Fourth Amendment jurisprudence. Supreme Court opinions are replete with statements affirming the special status of the home. Fourth Amendment text places special emphasis on securing protections for the home in addition to persons, papers, and effects against unwarranted government intrusion. Beyond the Fourth Amendment, the home has a unique place within constitutional structure. The home receives privacy protections in addition to sheltering other constitutional values protected by the Due Process Clause and the First Amendment. For example, under the Due Process Clause, the Constitution protects the intimate relationships and family life that constitute a home. As a physical structure, the home harbors private, domestic life. Constitutional protections of the household, however, extend beyond the enclosing walls of a physical structure. These intimate features of household privacy are necessary conditions for the fulfillment of what Justice Kennedy calls "dimensions of freedom" that extend outward into public life.

This Article demonstrates that because the home's playing this role is a necessary condition for the possibility of republican self-government, the Fourth Amendment's protection for household privacy is therefore also a structural check on federal and state power. With rapidly changing technology that can alter the balance between the government and its citizens, the home's structural role within the Constitution's system of separated powers is an overlooked feature of the Fourth Amendment. And as home personal assistant devices, doorbell security systems, and "smart" appliances all proliferate, so too do police requests to access stored digital information about the most intimate confines of interpersonal life. Once courts better recognize the home's structural role, analysis of law enforcement access to such stored data will extend beyond questions of knowing exposure or third-party sharing to encompass questions about the systemic effects of pervasive police access to such data upon republican self-government. Conventional judicial doctrines that apply constitutional rights unmoored from their broader structural roles risk undervaluing privacy while upsetting the balance of constitutional structure. To avoid this overlooked consequence, courts need conceptual clarity about the role the home plays in both the Fourth Amendment and within constitutional structure. Rather than abandoning the idea of privacy in the face of overwhelming informational exposure and advancing technology, we can strengthen it by seeing how it protects broader claims to liberty while preserving an overlooked feature of constitutional structure resident in the home. This Article argues that the home provides a way of organizing a paradigm for privacy protections that extends not only to the confines of a physical home, but also to the person in the public sphere. By linking the liberties of the people with privacy of the home, the Fourth Amendment plays an essential structural role in protecting the household from domination by government institutions and officials. In this way, Fourth Amendment protections for the home function as much to promote political values as personal ones, thereby providing a structural check on executive power.

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