Ever wonder how the law adapts to technology that makes it harder or easier for police to search and seize suspected criminals? Orin Kerr posits that an Equilibrium-adjustment exists. "Courts respond to the new facts by trying to restore the old level of protection. If a new technology or practice increased government power, courts ratchet up Fourth Amendment...
Quakers, Slaves and the Founders: Profiling to save the Union
"Racial and religious profiling is inconsistent with a fundamental tenet of Fourth Amendment doctrine. In most circumstances, law enforcers must possess fact-based, particularized suspicion before they seize or search a person or property.
If the Constitution requires fact-based, individualized suspicion to justify seizures and searches, it is easy to understand the Justice Department's position that, without more, a person's race, religion, ethnicity or alienage cannot supply the factual basis for a constitutional search or seizure. No logical relationship exists between any of these characteristics and the commission of crimes.
Yet searches and seizures based upon these impermissible grounds occur, and the phenomenon is not new. Constitutional history provides provocative examples of racial and religious profiling in every century of the nation's existence
If history teaches that in the midst of crises—when the future course of events remains unknown—those charged with preserving the nation will resort to drastic tactics unacceptable in more placid and tranquil times, then it also teaches that opposition to these tactics is essential if democratic values and mechanisms are to survive the crises. Those arguing in favor of abstractions like liberty and freedom are unlikely to prevail with a populace facing more concrete threats, like invading armies, civil war or weapons of mass destruction. But the struggle to define and enforce our constitutional norms is an ongoing process, and that process is aided by, and may depend upon, the actions of those who resist expansion of government power at the very time when it seems to be most needed. The first historical example demonstrates that the nature of the crisis affects how 'profile'-based seizures are used, but also how vocal and persistent opposition may affect the course of government conduct."
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