The Empty Promise of the Fourth Amendment in the Family Regulation System
This Article argues that the casual home invasions of the family regulation system are not just another story of lawless state action carried out by rogue actors or of an adversarial system failing to function. Instead, this is a story of a problem-solving system functioning exactly as it was designed. The problem-solving model emphasizes informality, information gathering, and cooperation—values that sit uncomfortably with the individual rights-based principles underlying the Fourth Amendment. By uniting each branch of government in a project of surveillance, the problem solving model reduces the potency of the separation of powers as a check on government overreach, while at the same time undercutting checks and balances outside the separation of powers. Protecting individual rights and preventing government overreach in the family regulation system will require more than rejecting the problem-solving model in favor of an adversarial model, as the criminal legal system shows. Guided by the heuristic of non-reformist reforms, the Article suggests a continuum of measures—some immediate, some over the course of generations—that will unravel the family regulation system’s wide net of surveillance and safeguard the welfare of children in a holistic sense. Ultimately, we must fundamentally rethink “child welfare services” and move from a model that holds individuals responsible for large-scale societal problems to one that addresses those problems on a societal level.