A Historical overview of the Fourth Amendment

A Historical overview of the Fourth Amendment.

Understanding the application of the Fourth in the border region by the Court and its evolution to its current form of diminished protection for the individual requires a brief look to the history of the Fourth Amendment. Its roots and application.

The principles of the Fourth Amendment, the autonomy and inviolability of an individual's body and home, date back to Biblical times. Under Roman legal codes, a victim of theft could not instigate a search in a suspect's house without first specifically describing the items sought; and several witnesses were required to be present during the search. (Search and Seizure http://caselaw.findlaw.com/data/constitution/amendment04/01.html)

The right of protection from the sovereign's searches and seizures is one of the most fundamental rights developed in our constitutional tradition. This principle existed in English common law, and later it found its way to the U.S. Constitution. Two principles were accepted on both continents at the time of the American Revolution and are embodied in the amendment:

1. General warrants were unacceptable; British and American citizens preferred search warrants used only with probable cause, and precisely stating the person or place to be searched and the items to be seized; and
2. Warrantless searches were not favored except on rare occasions, and then only as part of a lawful arrest. (http://www.abanet.org/media/june96/drugs.html)

The first record in English common law of search and seizure protection was Semayneâs case, in 1603, which proclaimed the maxim,

"Every man's house is his castle." Semayne's case demonstrated the principle at the heart of the Fourth Amendment in protection from the sovereign, but it also recognizes the authority of the state to enter, with notice, to arrest or execute the King's orders. (Findlaw.com http://www.findworld.com/data/Constitution/amendment04/01.html#3)

Entick v. Carrington (1762) brought the rights of free press and unreasonable seizure questions together when, in an attempt to silence John Wilkes and his criticism of the King, agents raided various homes of his supporters under a general warrant. (Howell's State Trials 1029, 95 Eng. 807, 1762). Entick sued when the King's agents broke into his house looking for papers connecting him with Wilkes. The English court ruled that the search was invalid because it failed to specify the material seized and did not state probable cause.

The most forceful expression of the English tradition of protection from unreasonable searches came form William Pitt when, in a 1763 speech to Parliament, he stated:

The poorest man may in his cottage bid defiance to all the force of the crown. It may be " roof may shake - the wind may blow through it - the storm may enter but the King of England can not enter all his force dares not cross the threshold of the ruined tenement. (FindLaw.Com http://www.findworld.com/data/Constitution/amendment04/

It was upon this tradition that the American colonists would base essential legitimacy for the Revolution. In the colonies it was the "Writs of Assistance,ä a type of general warrant used in enforcement of import/export laws, that gave the colonists their most bitter experiences with unreasonable searches and seizures. The writs once issued remained in force throughout the lifetime of the sovereign and six months thereafter. When, upon the death of George II in 1760, the authorities were required to obtain the issuance of new writs, opposition was led by James Otis, who attacked such writs on libertarian grounds and who asserted the invalidity of the authorizing statutes because they conflicted with English constitutionalism.

The debate over rights is one of the central themes in our American constitutional tradition and history. The Founders and the Framers both argued forcefully for a social compact that protected those unalienable rights. Protection from governmental use of unreasonable searches and seizures was at the heart of the Revolution period.

In July of 1774, Thomas Jefferson wrote in "A Summary of the Rights of British America" that the rights preserved in the English tradition were more than precedent, they were natural. (Kurland 453) For Jefferson, the rights of the people, as a collective, derived from the natural rights of individuals. The Americans had constituted themselves as a people by acting in their own accord. "For themselves they fought, for themselves they conquered, and for themselves alone they have the right to hold.ä (Kurland 436). This statement of natural rights would become important in later cases asking the question, "To whom does the Constitution apply?ä Jefferson would argue that these rights are inherent and natural. Thus, a sovereign must respect the rights inherent to the individual.

Is the right of free movement of people and goods a natural right? Jefferson spoke clearly on the issue of free trade in the Declaration of Rights stating, "That the free exercise of trade with all parts of the world, possessed by the American colonists as a natural right, and which no law of their own had taken away or abridged, was the next object of unjust and encroachment. (Kurland 436).
It was opposition to the British Writs of Assistance that would be at the birth of the Revolution. The arguments employed then in opposition to the writs are relevant today if applied to the search methods used at the border. James Otis, in February of 1761, would call the Writs, "the worst instrument of arbitrary power, the most destructive of English liberty and the fundamental principles of law, that ever was found in an English law book. (Adams 523), (Boyd v. U.S. 616)

The Virginia Declaration of Rights of June, 1776, Article 10, (Kurland 6) stated that general warrants were "grievous and oppressive and ought not be granted.ä The Declaration of Independence never mentions the Writs of Assistance in its list of grievances, except to complain that: "He has erected a multitude of New Offices, and sent hither swarms of officers to harass our people and eat out their substance." (Kurland 10). In language that would become the Fourth Amendment, the Massachusetts Constitution of 1780 declared in its Article I section XIV that,

"Every subject has a right to be free from all unreasonable searches and seizures"(Kurland 12).
During the debate over the proposed Constitution of 1787, rights were central to the debate. Hamilton, in Federalist # 84 argued against a Bill of Rights in the Constitution. For the Federalists a Bill of Rights was unnecessary as the government did not have the authority or ability to violate rights. In Federalist Number 84 Hamilton said,

I go further, and affirm that bills of rights, in the sense and to the extent in which they are contended for, are not only unnecessary in the proposed Constitution, but would even be dangerous.ä Arguing that a bill of rights was unnecessary he also commented, "The several bills of rights in Great Britain form its Constitution, and conversely the constitution of each State is its bill of rights. And the proposed Constitution, if adopted, will be the bill of rights of the Union. (Hamilton 434 http://www.law.ou.edu/hist/federalist/ )

The Anti-Federalists were vocal in their demands for protection from unreasonable searches and seizures. The Anti-Federalist writings are rich in reference to searches and seizures. Richard Henry Lee wrote to George Mason October 1, 1787 that, "the citizens shall not be exposed to unreasonable searches and seizures of their persons, papers, houses or property.ä (Kurland 448). "Federal Farmer #4" put protection from "hasty and unreasonable search warrants not founded on oath and issued with due caution,ä as its first right of "essential rights which we have understood to be the rights of freemen.ä (450) Similar statements are found in, "Brutus #2" (452), "Federal Farmer #6" (457), and Federal Farmer #16 (459). The most compelling Anti-Federalist statement of protection from unreasonable searches came in "A Maryland Farmer #1,ä which gave the following as its argument in favor of a bill of rights: "Suppose for instance, that an officer of the United States should force the house, the asylum of a citizen by virtue of general warrant, I would ask, are general warrants illegal by the constitution of the United States?ä (464)

Professor David Woll in a Brooklyn Law Review article, "Border Searches" observed that the Fourth Amendment was historically unique from the rest of the Bill of Rights in that it was passed in direct response to the Writs of Assistance in which the British used the general warrant to search homes and buildings for contraband. (754). He concludes that, "·it is doubtful that the historical context of the fourth amendment's enactment supports warrantless and intrusive customs searches conducted today.ä (754). Justice Brennan summarized the historical application point U.S. v. Villamonte-Marquez , 462 U.S. 579 (1983), saying of the Act of July 31, 1798 and the Fourth Amendment: "I cannot agree that every statute enacted by the First Congress must be presumed to be constitutional" Id.,. at 600, n.7, (Brennan J. dissenting).

The record of the debate of the First Congress on the Fourth Amendment holds few suggestions by representatives for change. The only debate concerned stylistic and grammatical changes to the Amendment (Veit 181, 187-88). The language of the provision which became the Fourth Amendment underwent some modest changes on its passage through the Congress. Madison's introduced version provided ''The rights to be secured in their persons, their houses, their papers, and their other property, from all unreasonable searches and seizures, shall not be violated by warrants issued without probable cause, supported by oath or affirmation, or not particularly describing the places to be searched, or the persons or things to be seized.'' (1 Annals of Congress 434-35 [June 8, 1789]). As reported from committee the omission corrected on the floor, the word ''secured'' was changed to ''secure'' and the phrase ''against unreasonable searches and seizures'' was reinstated. (Id., at 754 (August 17, 1789)) the section was almost identical to the introduced version, and the House defeated a motion to substitute ''and no warrant shall issue'' for ''by warrants issuing'' in the committee draft. In some fashion, the rejected amendment was inserted in the language before passage by the House and is the language of the ratified constitutional provision. (Veit 182). The limited debate on the wording of the Fourth, revolving around stylistic changes, leads to the conclusion that the experience of the colonists with the Writs of Assistance embedded the extreme importance of this protection from governmental intrusion.
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