A substantive problem lies at the heart of criminal procedure: the law is grounded on the protection of a particular value, privacy, that implies aggressive substantive judicial review of a sort that we have not allowed for the past half-century. Privacy, at least as the word is used in criminal procedure, protects the interest in keeping information out of the government's hands, and information is necessary to both criminal law enforcement (where aggressive constitutional law is thought to be good) and ordinary regulation (where it is mostly thought to be bad). Criminal procedure, or at least privacy-based criminal procedure, thus has a good deal more substantive bite than we tend to suppose, and its substantive implications push in some uncomfortable directions.There are two ways to resolve the tension. The system could protect privacy consistently, across the board. But that course would entail serious costs to the constitutional order under which we have lived since the New Deal. The other alternative is to reorient criminal procedure, to focus the law less on privacy and more on what makes the police different from, and more threatening than, the government in its other guises. That task is already underway, though it is mostly implicit. It needs to proceed further, and more candidly.
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