Scholarship@WashULaw

Document Type

Working Paper

Language

English (en)

Publication Date

2026

Publication Title

Vanderbilt Law Review

Abstract

Why does the Fourth Amendment belong in the Constitution? This question is not whether society should impose some legal restraints on government searches and seizures. Rather, why should such protections reside in our national charter, superior to other forms of law and insulated from change via ordinary majoritarian political processes? Despite major disputes about the Fourth Amendment’s content, Fourth Amendment theorists rarely ask this question. Almost all agree that the Fourth Amendment’s constitutional protections are critically important—even if no one can agree exactly what those protections are.

This Article seeks a justification for the Fourth Amendment—the reason why search-and-seizure protections deserve to be enshrined in supreme and entrenched constitutional law. While this question might seem beside the point, identifying a justification for the Fourth Amendment should be seen as a critical step in choosing a theory of the Fourth Amendment’s meaning. Yet whether understood as freezing in place specific substantive rules, a broader value like privacy, or an institutional allocation of power, the reason to constitutionalize such a guarantee is surprisingly elusive.

After canvassing all potential justifications for the Fourth Amendment as constitutional law, this Article finds that many are unappealing or unpersuasive; those that survive rest on uneasy premises. That conclusion poses a challenge to Fourth Amendment theorists, who must explain why their reading merits constitutional status. More generally, searching for the Fourth Amendment’s justification reveals how criminal procedure scholars can learn from constitutional theory. That investigation also deepens our understanding of constitutional interpretation and the very notion of constitutionalism itself.

Keywords

Fourth Amendment, Criminal Procedure, Constitutional Theory

Publication Citation

Daniel Epps, Justifying the Fourth Amendment, 79 Vand. L. Rev. (forthcoming 2026)

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