The Right to Be Secure: The Foundation of the Fourth Amendment
Americans have always cherished their right to be secure. Before the American Revolution, officials used general warrants to search and seize colonists’ property at will. These general warrants and “writs of assistance” gave officials unfettered power, since they specified neither the places to be searched nor what items to be seized.
Americans were outraged. John Adams and the other revolutionaries understood that if government officials could search and seize us and our property at will, no one could feel or be safe. That’s why the Declaration of Independence says that the purpose of government is “to secure [our] rights,” and why it complained that King George III had “sent hither swarms of officers to harass our people, and eat out their substance” using general warrants.
But once the war was over, Adams and others recognized that their own governments could threaten their security just as King George’s men did. So Adams drafted Article 14 of the Massachusetts Declaration of Rights, which not only banned general warrants, but recognized that “[e]very subject has a right to be secure from all unreasonable searches and seizures of his person, his house, his papers, and all his possessions.” Numerous other states drafted similar constitutional provisions protecting their citizens “from all unreasonable searches and seizures of [their] person, [their] papers, or [their] property.”
But many feared that federal officials would run roughshod over these rights, so they called for guarantees in the U.S. Constitution against “hasty and unreasonable search warrants, warrants not founded on oath, and not issued with due caution, for searching and seizing men’s papers, property, and persons.”
The Fourth Amendment, based largely on Adams’s work in Massachusetts, is the response to those calls. It shines light on key aspects of the right to be secure. The phrase “persons, houses, papers, and effects” shows the Amendment’s focus on property rights. By drafting the Fourth Amendment, the Framers sought to guarantee to future generations the same property-rights protections they had acquired over centuries under the common law of both England and America.
And one critical property right the Framers sought to protect was the right to exclude other people from your property. The Framers often said that “a man’s house is his castle,” a phrase that had existed in English common law for centuries. It meant that, absent a valid warrant or a true emergency, neither the King nor his officers could search or seize you or your property. That’s why the Framers used the term “secure,” which contemporary dictionaries defined as “protected from . . . danger” and “free from fear.” After all, property isn’t truly yours if you fear that government officials may break down the door at any moment. That’s why Adams himself said that “[p]roperty must be secured, or liberty cannot exist.”
That is why the Amendment broadly protects us against government power to intrude on our persons and property at will. The Framers had just fought a revolution against the King’s general warrants and writs of assistance; they wanted to prevent any chance their own government would commit the same abuses. As Supreme Court Justice Joseph Story wrote in one of the first major texts about the U.S. Constitution, the Fourth Amendment “seems indispensable to the full enjoyment of the rights of personal security, personal liberty, and private property. It is little more than the affirmance of a great constitutional doctrine of the common law.”
How Our Right to be Secure Got Eviscerated
The Fourth Amendment is a broad declaration of our right to be secure in our persons and property but it, like all our rights, is only good so long as courts interpret and apply the right consistent with the Framers’ understanding. Early on, that’s what happened. In the first major Fourth Amendment case that came before the Supreme Court, the Court rejected the government’s claim that it could open letters and packages travelling through the mail, holding that the “constitutional guaranty of the right of the people to be secure in their papers against unreasonable searches and seizures extends to their papers, thus closed against inspection, wherever they may be.” Ex parte Jackson, 96 U.S. 727, 733, 24 L. Ed. 877 (1877). In another early case, the Supreme Court rejected the government’s attempt to subpoena a person’s private papers for use in a forfeiture proceeding and declared that
[C]onstitutional provisions for the security of person and property should be liberally construed. A close and literal construction deprives them of half their efficacy, and leads to gradual depreciation of the right, as if it consisted more in sound than in substance. It is the duty of courts to be watchful for the constitutional rights of the citizen, and against any stealthy encroachments thereon. Their motto should be obsta principiis [“resist beginnings”].Boyd v. United States, 116 U.S. 616, 6 S. Ct. 524, 29 L. Ed. 746 (1886).
But despite the Court’s admonition in Boyd, its diligence in protecting Americans’ search and seizure rights began to wane in the face of Prohibition. To give federal agents broader authority to search for illegal alcohol production, the Court ignored its previous commitment to a “liberal construction” by restricting what types of property the Fourth Amendment protected. In 1924, for instance, the Supreme Court held in Hester v. United States that the Fourth Amendment did not protect private land other than the area immediately surrounding one’s home. And a few years later, the Court held that agents could wiretap a phone line without first getting a warrant because the line wasn’t the defendant’s “person, house, paper or effect.”
The Court’s narrow reading of the text—often called “strict constructionism”—was a surprise to many. John Adams had said judges should not read constitutional guarantees narrowly but instead should apply them as the Framers themselves “would have done if [they] had foreseen the things that happened.” And early Supreme Court Justices John Marshall and Joseph Story had each rejected narrow interpretative approaches, with the latter saying in 1816 that: “[t]he words [of the Constitution] are to be taken in their natural and obvious sense, and not in a sense unreasonably restricted or enlarged.” The Court’s hyperliteral reading of the Amendment threatened Americans’ security and demanded a response.
Several decades following Prohibition, a response that seemed able to restore Americans’ security appeared. In Katz v. United States, the Supreme Court turned away from its prior hyperliteral textualism. Declaring that “the Fourth Amendment protects people, not places,” the Court rejected the idea that the government must conduct a trespass against someone’s house, paper, or effect for a search to occur. Borrowing from a concurring opinion by Justice Harlan, the Court adopted a new test that looked at whether the government’s conduct infringed on an “actual (subjective) expectation of privacy” that society was prepared to recognize as “reasonable.”
But any hopes that Katz and its “reasonable expectations of privacy” test would usher in a new Fourth Amendment renaissance were quickly dashed. Justice Harlan and others on the Court were right that the Court’s former, crabbed reading of the Fourth Amendment’s text was insufficient. But given the rich historical record, they erred in disavowing the Fourth Amendment’s property rights origins and tying it instead to a nebulous right to privacy.
More importantly, the “reasonable expectations of privacy” test is a muddied, subjective standard that avoids providing clear rules and instead calls for ad hoc judicial balancing. By asking judges in any given instance to decide what privacy interests society deems “reasonable,” the new test put judges in the role of “balancing” an individual’s Fourth Amendment rights against the government’s law enforcement interests. It turned out that courts were more than willing to put their thumb on the scale in the name of efficient law enforcement, often by holding that the government’s actions did not amount to searches or, if they did, that the government acting without a warrant was reasonable.