For much of our nation’s history, the poor have faced pervasive discrimination in the exercise of fundamental rights. Nowhere has the impairment been more severe than in the area of privacy. This Article considers the enduring legacy of this tradition with respect to the Fourth Amendment right to domestic privacy. Far from a matter of receding historical interest, the diminution of the poor’s right to privacy has accelerated in recent years and now represents a powerful theme within the jurisprudence of poverty. Triggering this development has been a series of challenges to aggressive administrative practices adopted by localities in the wake of federal welfare-reform legislation. As a precondition to public assistance, some jurisdictions now require that all applicants submit to a suspicionless home search by law-enforcement investigators seeking evidence of welfare fraud. In turning back challenges to these intrusions, contemporary courts have significantly curtailed the protections of the Fourth Amendment as applied to the poor.

While the courts that sanction these practices disclaim any sort of poverty-based classification underlying their analysis, no other rationale withstands scrutiny. Neither precedent nor the principled extension of existing doctrine justifies recent outcomes or explains why the holdings should not be applied to authorize a vast - and, thus, unacceptable - expansion of suspicionless search practices directed at the homes of the less destitute. The developing jurisprudence accordingly represents an implicit concession that the poor constitute a subconstitutional class for purposes of the Fourth Amendment. Framed most charitably, the decisions understand poverty as a condition of moral culpability and thus accept it as a surrogate for the individualized suspicion that otherwise would be required to justify the intrusions at issue. The premise of the dissolute poor, tracing back centuries, remains alive and well in American law, and we have a bifurcated Fourth Amendment to prove its enduring vitality.

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Indiana Law Journal

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Abstract available at http://ssrn.com/abstract=1687938