Document Type
Article
Publication Date
2013
Publication Title
Criminal Justice Ethics
Abstract
A paradigmatic aspect of a paradigmatic kind of right is that the rights holder is the only one who can alienate it. When individuals waive rights, the normative source of that waiving is normally taken to be the individual herself. This moral feature—immunity—is usually in the background of discussions about rights. We bring it into the foreground here, with specific attention to a recent U.S. Supreme Court decision, Kentucky v. King (2011), concerning search and seizure rights. An entailment of the Court’s decision is that, at least in some cases, a right can be removed by the intentional actions of the very party against whom the right supposedly protects the rights holder. We argue that the Court’s decision is mistaken. The police officers in the case were not morally permitted, and should not be legally permitted, to intentionally create the very circumstances that result in the removal of an individual’s right against forced, warrantless search and seizure.
Volume
32
First Page
108
Recommended Citation
Stephen E. Henderson & Kelly Sorensen, Search, Seizure, and Immunity: Second-Order Normative Authority and Rights, 32 Crim. Just. Ethics 108 (2013).
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Constitutional Law Commons, Criminal Procedure Commons, Ethics and Political Philosophy Commons, Fourth Amendment Commons, Law Enforcement and Corrections Commons, Privacy Law Commons