Hastings Law Journal


Nadine Strossen


In Michigan Department of State Police v. Sitz, the Supreme Court rejected a fourth amendment challenge to mass, suspicionless searches and seizures at drunk driving roadblocks. In this Article, Professor Strossen analyzes the longrange constitutional impact of Sitz. She argues that the decision epitomizes the Court's recent tendency to eliminate the traditional fourth amendment requirement that any search or seizure of an individual must be based upon a particularized suspicion that the individual has committed, or is about to commit, a crime. The Article then shows how Sitz embodies two more general, interrelated trends in the Rehnquist Court's construction of individual constitutional rights, beyond those guaranteed by the fourth amendment.

First, the author argues that the extreme deference to the challenged government practice in Sitz exemplifies the Rehnquist Court's general move toward low level "scrutiny" of measures encroaching on Bill of Rights freedoms. Second, she suggests that Sitz embodies an instance of the Court's narrow reading of the scope of individual rights. In its decision, the Court rejected the traditional view that the fourth amendment guarantees a minimum, absolute right to be free from searches and seizures absent some degree of individualized suspicion. Instead, Professor Strossen argues that the Court construed the fourth amendment only as guaranteeing a relative right to be free from searches and seizures that are carried out in an unequal or discriminatory fashion, as measured by the degree of suspicion (or lack thereof) involved. She concludes that this tendency to read a constitutional guarantee as assuring only non-discrimination in the exercise or deprivation of rights, characteristic of the Rehnquist Court's constitutional jurisprudence in general, has seriously weakened the foundation of liberty established by the Bill of Rights.

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