Double Reasonableness and the Fourth Amendment

BY SAM KAMIN & JUSTIN MARCEAU — Legal doctrine is replete with reasonableness tests. In fact, it is unlikely that any area of law lacks a reasonableness test at the center of a core doctrine. The Fourth Amendment is certainly no exception; the textual prohibition of unreasonable searches and seizures has led the United States Supreme Court to conclude that the “ultimate touchstone of the Fourth Amendment is reasonableness.” What makes the Fourth Amendment unique, however, is the relatively recent insistence on not one but two tiers of reasonableness review in adjudicating Fourth Amendment claims. Both the substance of the right and the availability of a remedy are currently assessed under overlapping, but distinct, reasonableness tests. Unfortunately, this double reasonableness review does not double the reasonableness of the ultimate results obtained; instead, it has something of the opposite effect. Double reasonableness blurs the lines between right and remedy. Previous scholarship has identified the strong link—or equilibration—between constitutional rights and remedies, but in this Article we go one step further and develop the claim that the content of the right itself is becoming increasingly obscure. The substance of the Fourth Amendment is stuck in a fog of remedial decisions, and double reasonableness is the chief culprit. Read More

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