Fourth Amendment

The Fourth Amendment Doesn't Recognize a General ‘Right to be Secure’

By Orin Kerr
Friday, November 24, 2017, 3:10 PM

I sometimes hear an argument in Fourth Amendment circles that the Fourth Amendment guarantees a “right to be secure.” The argument comes in different forms from different scholars, but I would summarize it something like this:

The text of the Fourth Amendment does not provide a right to privacy. Instead, it provides a right to be secure. To be true to the text of the Fourth Amendment, government action that interferes with the people's right to feel secure should be held to violate the Fourth Amendment. Because government practice [insert example here] gives the government so much power, it interferes with the People's right to be secure against the government and violates the Fourth Amendment.

An example of scholarship that I take to be making this kind of argument is Jed Rubenfeld's article, The End of Privacy, 61 Stan. L. Rev. 101 (2009), although I mention that just as one example.

I don't find the “right to be secure” argument persuasive, and I thought I would say why. Here's the relevant text:

The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated[.]

That text does not provide for some sort of general “right to be secure.” Rather, the text is much more specific. It states that “the people” have a right “to be secure” in particular things (“in their persons, houses, papers, and effects”) against something specific (“unreasonable searches and seizures”). In ordinary language, if you have a right to be secure against some specific bad thing, you don't have a general right to be secure. You just have a right to be secure against that specific bad thing. Your right is violated if the bad thing happens. If the bad thing doesn't happen, your right isn't violated.

As it's nearing exam time in law schools, here's an example that might resonate with students. (It will be overly academic to everyone else, no doubt. But hey, I'm a law professor.) If you're a law student and your professor says you have “a right to be secure in your law school exams against arbitrary grading,” the professor is not saying that you have a right to feel secure about your exams. If the exam is next week and you're feeling insecure about how well you'll do, it would be odd to complain that your exam anxiety shows that the professor is breaching the right. The problem is that, in the hypothetical, the professor didn't say you had a right to feel secure. Instead, the professor just said that you have a right against arbitrary grading in your law school exams.

The same idea applies to the Fourth Amendment, I think. Textually, the right is violated when a person's “persons, houses, papers, and effects” are the subject of an “unreasonable search[] or seizure[].” There is no general “right to be secure” any more than the Fourth Amendment recognizes a general “right to be.” True, in isolation, those words appear in the text. But the clause has to be read in its entirety to understand its meaning. And so read, I don't think it recognizes a general “right to be secure.”