Pragmatism, Originalism, Race, and the Case Against Terry v. Ohio

Abstract

Part I of the discussion that follows offers an account of urban crime over the past few decades and argues that there is a case to be made that Terry's regime of stop-and-frisk deserves a good deal of the credit for the reductions in violent crime that major cities have experienced in recent years. Part II contends that, in light of the conditions that prevail in urban America, framing-era experience offers little reliable guidance for assessing reasonableness within the meaning of the Fourth Amendment. Although the historical support for Terry's regime of stop-and-frisk is fairly debatable, framing-era judgments about stop-and-frisk were made in a context so dramatically different from contemporary urban law enforcement that they can offer no useful guide for assessing the constitutional mandate of reasonableness. Part III then turns to the pragmatic attacks on Terry. and contends that they undervalue the importance of Terry to saving lives in the inner city.