NCJ Number
129091
Journal
American Criminal Law Review Volume: 27 Issue: 4 Dated: (1990) Pages: 583-617
Date Published
1990
Length
35 pages
Annotation
A comparison is made between two varieties of search and seizure jurisprudence -- one grounded in traditional liberal-individualist theory and the other in the communitarian revision.
Abstract
The law of search and seizure deriving from traditional liberal-individualism is expressed in current U.S. Supreme Court cases. Liberal-individualism focuses on individuals and regards them as rights-bearing entities whose social and political bonds are instrumental, temporary, intentionally-forged, incidental aids to be exploited in pursuit of personal goals. Communitarianism conceives of public policy as the result of a deliberative process seeking to discover a common vision of good. It conceives of the State as an enabling and constitutive body and not as a limiting or threatening one and de-emphasizes pre-political individual rights as fallback provisions grounded in tradition and consensus. In the State of Oregon, an evolving law of search and seizure suggests that communitarian precepts can be translated into workable and coherent State constitutional doctrine.