Christian Edmonds has posted The Religious Underpinnings of the Fourth Amendment (Texas Review of Law & Politics, Vol. 25, No. 2, 2021) on SSRN. Here is the abstract:
For decades, Americans have lived with the understanding that they can freely attend and participate at their house of worship without governmental intervention. The leaders of those houses of worship have been under the same impression. Since the drafting of the Fourth Amendment, ministers have understood that they can do their job without fear of being monitored or scrutinized by governmental interference. Times have changed. Recent state actions portray a frightening view of a possible Orwellian future where faith leaders’ words and actions could be censored or penalized by stringently enforced laws. These potential laws would strip faith leaders of any protection when teaching their faith doctrines, undermining First and Fourth Amendment safeguards that are fundamental to individual freedoms and a robust democracy. Today, unfortunately, many faith leaders fear that their divinely inspired work might be searched and/or seized for various reasons.
Governmental interest in monitoring religious doctrines raises the question whether the government even has the right to search and seize religious objects. This Article will argue that the government has no right under any circumstances to meddle in the private property of faith leaders because a “paramount purpose of the Fourth Amendment was to serve as a guardian of individual liberty and free expression.” The Fourth Amendment “was intended to function as a barrier to government overreach and as a catalyst for other constitutional rights, notably freedom of speech and freedom of association, which are essential to a healthy democracy.”
Abstract continues below.
An area that is of primary concern is pastoral work product. Pastors, priests, rabbis, and imams all have many different tasks and responsibilities as leaders of differing faiths. However different their tasks and responsibilities might be, they all produce work product. The aim of this Article is to address the question whether law enforcement can search and seize the work product religious leaders produce with or without a valid warrant issued on probable cause. This Article will argue that pastoral work product cannot be searched or seized for three reasons. First, the Article will briefly detail the history of religious searches and seizures leading up to the drafting of the Fourth Amendment. This historical analysis will show the Framers’ disdain for general warrants and their desire to draft the Fourth Amendment in such a way as to curtail the issuance of these types of warrants. As the analysis will show, one of the most prevalent issuances of general warrants was for the search and seizure of religious items. This Article will argue that while the drafters attempted to cut general search warrants out of the Fourth Amendment, they also had religious searches in mind because of their pervasiveness, their association with general searches, and the special nature of religion in colonial America. Second, this Article will argue that recent Fourth Amendment caselaw suggests the Supreme Court (the Court) is inching ever closer to resurrecting a property-based analysis of addressing the reasonableness of searches and seizures. Since 1967, the Court has defined what constitutes search and seizure under the Fourth Amendment by one’s reasonable expectation of privacy. But times are changing. Pastoral work product is the writer’s property. Therefore, the Fourth Amendment protects it from unreasonable searches and seizures. This Article will bolster this argument by addressing the implications of Carpenter v. United States on the third-party doctrine and how Justice Gorsuch’s dissent may be prescient of the third-party doctrine’s demise, which further broadens the protections pastoral work product might hold. Third, this Article will look at Supreme Court caselaw to argue that certain searches can be unreasonable even though they conform to the procedural requirements of the second clause of the Fourth Amendment. It will do this by showing how the Supreme Court created a balancing test to provide the means for determining if papers deserve special protection or not. This part will argue that religious papers deserve the utmost protections because they are the mental impressions of ministers meant only to be seen by themselves, and religion is wholly different; it is in its own category, and it should be treated accordingly. The Article will outline areas in which both state and federal governments have treated religion unlike secular institutions. In conclusion, this Article will show that the search and seizure of pastoral work product undermines Fourth Amendment safeguards that are fundamental to the protection of individual freedoms and a robust democracy.
