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

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. The Case for Rational Basis Review of General Suspicionless Searches and Seizures I. Trusting general searches and seizures to the political process 6 A. Other areas of constitutional law trust legislatures to handle issues involving groups 14 B. Legislatures have a comparative advantage in determining the reasonableness of general searches and seizures 21 C. The political process is, if anything, likely to err in the direction of too few costeffective general searches and seizures 30 II. A role for courts: policing general searches and seizures for process failures 36 A. No legislative authorization 36 B. Excessive executive discretion 41 C. Discrimination against discrete and insular minorities 48 D. No rational basis 53 E. Violation of an independent constitutional provision 54 III. The democracy-impeding effects of current general search and seizure doctrine ..... 57 A. First requirement: no general searches or seizures for the purpose of criminal investigation 58 B. Second requirement: no general searches or seizures without a “special” need.... 66 C. Third requirement: no general searches and seizures that a court deems unreasonable 71 IV. The ambiguity of the Framers’ intentions regarding legislatively authorized general searches and seizures 73 V. Conclusion: Eliminating the irrational fear of general searches and seizures 81