It's worth pointing out that, as with many writings from the eighteenth century, the meanings of words has shifted over time and the original meaning of the phrase is different what it would appear to modern eyes.
The current definition of "reasonable" has a strong connotation of "proportionate," which was not part of the intended meaning. "Reasonable" means something more like "rational." It kind of carries this reference to Enlightenment ideals where Reason is one of the Virtues that demonstrates the nobility of man. And the law is supposed to also be a demonstration of this same Virtue of Reason. I know that's a lot of highfalutin' words, but the point is this: A search being "reasonable" is based on whether it can be justified from abstract principles of law, not whether it can be justified from the circumstances.
So, for example: A few weeks ago, it was ruled that parking cops marking your tires with chalk violates the Constitution. That is an "unreasonable search." People had a hard time understanding this, because it's just a chalk mark, right? Well, that's not the point. "Unreasonable" does not mean that the chalk mark is a big deal. "Unreasonable" means that there was a physical trespass without individualized suspicion of wrongdoing. The thing that made the physical violation of private property "unreasonable" was not the proportionality of the trespass, but the fact that there was not an abstract legal principle that provides a justification for it.
There are emerging issues around the reasonableness of searches, but I think the bigger issue related to that is that "always-on" surveillance allows prosecutors to cherry-pick observations and construct "reasonable suspicion" out of completely innocuous behaviors. This is especially true when we start getting into profiling ("this person does things that criminals also do"). While it might be statistically valid, my personal opinion is that it starts getting outside the idea of "reasonable" suspicion, especially when there isn't a basis to suspect a specific crime.
Edit: Source for this is mostly a paper titled "The Original Fourth Amendment" by Laura K. Donohue, The University of Chicago Law Review Vol 83 No 3, pages 1181-1328.
Funny how reasonable is meant to be interpreted very narrowly, while trespass is meant to be interpreted incredibly expansively.
Do we just need to replace signs that say "Public Parking" with signs that go on about the parking being conditioned on granting public officials access to chalk tires?
Thanks for providing a citation! When you say that profiling isn't "reasonable," are you still using the word in the sense of "rational"? That seems inconsistent with your concession that (potentially racist or otherwise unjust) profiling can still be "statistically valid."
I'm still using it to mean "consistent with a principle of law." The idea of "rational" is closer than "proportional," but it still loses a lot of nuance.
The issue with profiling is that the justification is "this person resembles a criminal," rather than "I have reason to believe a crime has been committed." Even if your methods have good precision and recall, this approach is not consistent with an existing principle of law.
The current definition of "reasonable" has a strong connotation of "proportionate," which was not part of the intended meaning. "Reasonable" means something more like "rational." It kind of carries this reference to Enlightenment ideals where Reason is one of the Virtues that demonstrates the nobility of man. And the law is supposed to also be a demonstration of this same Virtue of Reason. I know that's a lot of highfalutin' words, but the point is this: A search being "reasonable" is based on whether it can be justified from abstract principles of law, not whether it can be justified from the circumstances.
So, for example: A few weeks ago, it was ruled that parking cops marking your tires with chalk violates the Constitution. That is an "unreasonable search." People had a hard time understanding this, because it's just a chalk mark, right? Well, that's not the point. "Unreasonable" does not mean that the chalk mark is a big deal. "Unreasonable" means that there was a physical trespass without individualized suspicion of wrongdoing. The thing that made the physical violation of private property "unreasonable" was not the proportionality of the trespass, but the fact that there was not an abstract legal principle that provides a justification for it.
There are emerging issues around the reasonableness of searches, but I think the bigger issue related to that is that "always-on" surveillance allows prosecutors to cherry-pick observations and construct "reasonable suspicion" out of completely innocuous behaviors. This is especially true when we start getting into profiling ("this person does things that criminals also do"). While it might be statistically valid, my personal opinion is that it starts getting outside the idea of "reasonable" suspicion, especially when there isn't a basis to suspect a specific crime.
Edit: Source for this is mostly a paper titled "The Original Fourth Amendment" by Laura K. Donohue, The University of Chicago Law Review Vol 83 No 3, pages 1181-1328.