The Warren Court’s Regulatory Revolution in Criminal Procedure
82 Pages Posted: 25 Mar 2010 Last revised: 17 Jan 2011
Date Written: March 19, 2010
The standard story describing the Warren Court’s criminal procedure “rights revolution,” claims that the Court, motivated by liberal egalitarianism, engaged in a rights-expanding jurisprudence that made it harder for the police to search, seize, and interrogate criminal defendants. Frightened by the popular backlash against high crime rates, a cowed Court in Terry v. Ohio shifted from its rights-expanding to a rights-constricting phase, making it easier for the police to search and seize criminal suspects. Measured by this rights revolution, there were in fact two Warren Courts, a liberal and a more conservative one, emblematically separated by Terry.
The standard story is wrong. The Warren Court’s Fourth Amendment jurisprudence cannot be separated into rights-expanding and contracting phases. Rather than introducing a privacy right, the Warren Court, from the early 1960s onwards, mounted a consistent attack on pre-existing versions of the right to privacy. Rather than a privacy-protecting rights regime, the central Fourth Amendment right under the Warren Court was personal security. Extending security into areas hitherto unregulated by the law was a major concern of the Terry Court: an expansionist Terry cannot be squared with a Court in retreat in response to public outcry over crime rates.
Worse, the story produced a barren doctrinal and political account of the Fourth Amendment. Focusing on equality, anti-discrimination, and privacy too easily paints law enforcement as a repressive force whose power and numbers should be severely limited. This narrow liberalism has turned progressive attention away from the vital and difficult task of generating a doctrinal and political account of policing: its justification, intrinsic limits, and proper means of regulation.
Keywords: legal history, Warren Court, Criminal Procedure, privacy, liberalism, republicanism, wiretap, regulation, rights, Fourth Amendment, liberal, Terry v. Ohio, Katz, vagrancy, police, policing, discrimination
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