Most academics agree that search and seizure jurisprudence is a "mess." Professor Luna proposes a new approach to the Fourth Amendment founded on a sovereignty-based theory of the Constitution. Under this individual rights model, a government search or seizure of an individual's home or body receives the strongest presumption of invalidity. This presumption, he argues, could only be rebutted in three discrete circumstances: (1) consent by the individual to search his home or body; (2) individualized suspicion of wrongdoing; or (3) real, direct, and substantial threats to the sovereignty of other persons. Apart from these exceptions, governmental intrusions into the body and home are beyond the boundaries of official authority. Professor Luna contrasts the individual rights model with what he calls an antidiscrimination approach to the Fourth Amendment, which focuses on group participation in the political process rather than coercive effects on the individual. He identifies an important flaw in the antidiscrimination model: the lack of a constitutional floor protecting individuals and constraining government. Professor Luna's individual rights model provides content to that constitutional floor-tangible zones of individual sovereignty.
Erik G. Luna,
Sovereignty and Suspicion,
48 Duke Law Journal
Available at: http://scholarship.law.duke.edu/dlj/vol48/iss4/3