Troubles with Hiibel: How the Court Inverted the Relationship between Citizens and the State


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.


Civil Rights and Discrimination | Constitutional Law | Criminal Law | Criminal Procedure | Law and Society

Date of this Version

September 2006