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Constitutional Cacophony: Federal Circuit Splits and the Fourth Amendment

Posted by on Wednesday, October 24, 2012 in Articles, Volume 65, Volume 65, Number 5, Volumes.

Despite their many differences, Americans have long been bound by a shared sense of constitutional commonality. Federal constitutional rights, however, can and do often vary based on geographic location, and a chief source of this variation stems from an unexpected origin: the nation’s federal circuit courts of appeals. While a rich literature exists on federal circuit splits in general, this Article provides the first empirical study of federal constitutional law circuit splits. Focusing on Fourth Amendment doctrine in particular, the Article highlights the existence of over three dozen current circuit splits, which result in the unequal allocation of liberty and privacy rights throughout the land by courts of the same sovereign.

The variability presents an array of normative and practical difficulties distinct from that presented by nonconstitutional splits. Worse yet, as the Article also demonstrates, the difficulties often go unmediated by the Supreme Court, even though the Court now decides fewer cases than it has in decades and operates under the expectation that splits should bear special weight in its certiorari decisions. To remedy matters, the Article urges resuscitation and modification of the long-ignored authority of circuit courts to certify questions to the Court, compelling the Court to fulfill its role as ultimate expositor of federal constitutional law. Doing so will not only help cure the many difficulties created by splits. It will also help restore a valuable interactive relationship between the circuits and the Court and ensure continued attention to federal rights variability, a troubling phenomenon too long ignored by the Court, Congress, and commentators.