Title: Troubles with Hiibel: How the Court Inverted the Relationship between Citizens and the State
Abstract: This essay shows why the Supreme Court’s decision in Hiibel v. Sixth Judicial District of Nevada violates precedent, the Constitution, and the very basis for the relationship between government and the governed. First, the Court has violated the clear limits Terry v. Ohio set on the restricted searches based on reasonable suspicion within the restrictions of the Fourth and Fifth Amendments. By using the power of the state to compel citizens to produce identification, it also violates the First, Fourth, and Fifth Amendments as well as the unenumerated rights that conceptually link the enumerated rights in the Court’s jurisprudence. Finally, this country was founded on the belief that government has to justify itself to the citizens, and the Hiibel decision inverts this relationship. To rectify these transgressions, we argue that the Court should return to the bright-line rule articulated in Terry: The officer may ask; the suspect may remain silent. * Fellow in the Program in Psychiatry and the Law and the Division of Medical Ethics at Harvard University Medical School and amicus in Hiibel v. Nevada with the Privacy Activism brief. † Staff Attorney, Committee for Public Counsel Services, Massachusetts; JD, University of Pennsylvania Law School (2006); Ph.D, University of Georgia; B.S., James Madison University. We would like to thank Harriet E. Cummings, Susan Feathers, and Vikas Didwania for assistance in this project. TROUBLES WITH HIIBEL 2 “Yet if the individual is no longer to be sovereign, if the police can pick him up whenever they do not like the cut of his jib, if they can ‘seize’ and ‘search’ him in their discretion, we enter a new regime” (Terry v. Ohio, 1968)
Publication Year: 2006
Publication Date: 2006-01-01
Language: en
Type: article
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Cited By Count: 3
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