Document Type
Article
Publication Title
Harvard Law Review Forum
Publication Date
12-2011
Page Number
14
Keywords
Fourth Amendment, equilibrium-adjustment theory, constitutional law
Disciplines
Constitutional Law | Law
Abstract
The argument that Professor Orin Kerr proffers in An Equilibrium-Adjustment Theory of the Fourth Amendment' is simple: Fourth Amendment law ought to be structured to ensure that the balance of power between government and citizenry remains constant. This equilibrium-adjustment theory is elegant and, because it rests on a relatively "neutral" historical foundation, might be attractive to judges and scholars from different perspectives. Contrary to Kerr's assertion, however, it does not easily explain many of the Court's cases, nor does it help address the most difficult Fourth Amendment issues facing the Court today. The historical foundations on which it rests are often shaky or insufficiently cognizant of modern preferences. At bottom, equilibrium-adjustment theory is originalism, and thus suffers from all of the problems associated with that methodology.
Recommended Citation
Christopher Slobogin,
An Original Take on Originalism, 125 Harvard Law Review Forum. 14
(2011)
Available at: https://scholarship.law.vanderbilt.edu/faculty-publications/1461