The Bill of Rights: The Fourth Amendment

William Russell Birch, “Arch Street ferry, Philadelphia.” Library Company of Philadelphia.

The Fourth Amendment: The right of the people to be secure in their persons, houses, papers, and effects against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probably cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.

The Fourth Amendment is the fundamental basis for every American’s right to privacy. These freedoms are some of the most important granted to us by the Constitution, giving credence to the idea that “a man’s home is his castle”. As basic as these rights appears to us today, it was a relatively new concept prior to our Revolution.

As with much of our legal doctrine, the concept of one’s home being a place of refuge from governmental intrusion is based on English law. The Magna Carta, written in 1215, first ascribed rights to nobles which protected their castles and keeps from unwanted entry by the King, but it did not apply to commoners.

By the mid-1700’s, English jurisprudence began to expand the right to privacy in one’s home to all English subjects. In the famous Entick case, which involved the forceable entry into John Entick’s home and the seizure of his papers critical to the Crown, the English High Court stated “our law holds the property of every man so sacred, that no man can set foot upon his neighbor’s close (entryway) without his leave.”

However, this guarantee of personal privacy in one’s home did not apply in colonial America. In fact, Parliament passed laws refuting this right in America where smuggling was rampant to better allow custom officials access to the homes and property of suspected smugglers.

Parliament, in 1760, first authorized writs of assistance to help custom officers seek out and find smuggled goods. These writs were essentially general search warrants and did not have any expiration.

More importantly, these overly broad documents did not require the authorities to state who they were seeking or what they were seeking or even where officials were to do their seeking. Incredibly, the law further stipulated that the government officials were not liable for any damage done during the search.

This violation of a basic English right infuriated the colonists. James Otis, a noted lawyer, in a stirring speech in 1761, argued the law was a violation of every Englishman’s right to privacy in his own home. While he lost the case, John Adams felt his oration was “the spark in which originated the American Revolution”.

As America moved closer to independence, more colonial legislatures enacted laws forbidding the government from violating the sanctity of the home. In 1776, Virginia, in its Declaration of Rights, forbade general warrants and writs of assistance and demanded warrants be specific in nature.

When Massachusetts created their Bill of Rights, Adams, who was its main author, added the requirement that searches could not be “unreasonable”. Importantly, the wording in the Virginia and Massachusetts documents were the basis for James Madison’s Fourth Amendment.

Since its ratification in 1792, the Supreme Court has expanded the scope of the Amendment to include broad privacy protections as well. In Silverman v. United States (1961) the Court stated at the amendment’s “very core stands the right of a man to retreat into his home and there be free from unreasonable governmental intrusion.”

Privacy rights were further extended by the High Court in Katz v. United States (1967) when Katz was wiretapped by the government in a phone booth (remember those) outside his home. The Court declared Katz had a reasonable expectation of privacy even inside the phone booth and “the Fourth Amendment protects people, not places.”

Interestingly, given today’s advanced technology, governmental violations of your privacy can take place without anyone entering your home. Even more worrisome, private companies like Facebook, Apple, and Google can and do track your every move without your knowledge or consent.

The Founders were terribly worried about the ever-expanding reach of government. It seems their fears were well founded.

WHY IT MATTERS

So why should it matter to us today that we the people are protected “against unreasonable searches and seizures” and that warrants must be based on “probable cause” and be specific in nature?

It is hard to imagine any place more sacred to each of us than our home, that place of refuge from a harsh world. We take for granted a natural right to privacy in our humble abodes, but our Founders lived in a different time.

Theirs was a time when the King’s officials could enter and search someone’s home, with nothing more than an open-ended warrant to pry among their things. Thanks to the Founder’s foresight in crafting the Fourth Amendment, all Americans enjoy the freedom from unwarranted governmental intrusions into our homes. We should all be grateful to our forefathers for that.

SUGGESTED READING

An excellent book on the early days of America is “The British are Coming” by Pulitzer Prize winning author Rick Atkinson. It is the first part of Atkinson’s trilogy on The American Revolution, with the other two books scheduled to come out over the next few years.

PLACES TO VISIT

Did you know the Supreme Court Building, built in 1935, is open to the public Monday through Friday during normal business hours? The old Supreme Court chamber, located in the basement of the US Capital Building, is open as well. Both sites are well worth a visit in you are in Washington.

Until next time, may your motto be “Ducit Amor Patriae,” Love of country leads me.