Conventional wisdom suggests that a constitutional right will constrain government actors. But a right defined in terms of what the state routinely does would impose in practice no brake on state action—and so seem pointless. Nevertheless, in defining Fourth Amendment rights, the Supreme Court frequently draws on the practice of regulated government actors to define the constitutional floor for police action. This Article is the first to isolate and analyze this seemingly paradoxical judicial practice. It labels it “Fourth Amendment gloss,” after an analogous mode of reasoning in separation-of-powers cases. The Article’s first aim is descriptive—to catalog the various ways in which “gloss,” or official practice, is deployed across the Court’s search and seizure case-law. This exercise shows that many frequently exercised search and seizure powers have been constitutionally defined in terms of official practice. The Article’s second aim is to ask whether judicial reliance on such gloss can be justified. There are three general justifications for the use of gloss as a source of law in constitutional interpretation. These can be called gloss as acquiescence, gloss as Burkean wisdom, and gloss as settlement. A careful examination of the empirical and theoretical contexts of the Fourth Amendment suggests, however, that none of these three justifications can be extended to support gloss’s use as a way to define lawful searches and seizure. If gloss persists today, therefore, it is for institutional and ideological reasons—not because it is theoretically warranted. Given this conclusion, the Article offers ways to limit the error costs associated with the use of Fourth Amendment gloss.
Huq, Aziz Z., "Fourth Amendment Gloss" (2018). Public Law and Legal Theory Working Papers. 813.