The Fourth Amendment During the Lochner Era: Privacy, Property, and Liberty in Constitutional Theory

78 Pages Posted: 14 Sep 2016 Last revised: 7 Aug 2017

See all articles by Morgan Cloud

Morgan Cloud

Emory University School of Law

Date Written: 1996

Abstract

In this article, Professor Morgan Cloud proposes a surprising remedy for a Fourth Amendment jurisprudence he criticizes as lacking a unifying theory and failing to preserve the rights guaranteed by the Amendment. Professor Cloud's solution is a return to the theories espoused by the Supreme Court during the infamous Lochner era of the early twentieth century. He calls for a merging of the formalist and pragmatist theories of that period into an interpretive theory of the Fourth Amendment and suggests a rededication to the Amendment's Warrant Clause. Such a theory avoids the pitfalls of literalism and judicially determined social policy, while protecting the basic purposes of the Amendment to protect individual liberty, privacy, and property and to prevent unjustified government intrusions.

Suggested Citation

Cloud, Morgan, The Fourth Amendment During the Lochner Era: Privacy, Property, and Liberty in Constitutional Theory (1996). Stanford Law Review, Vol. 48, 1996. Available at SSRN: https://ssrn.com/abstract=2832798

Morgan Cloud (Contact Author)

Emory University School of Law ( email )

1301 Clifton Road
Atlanta, GA 30322
United States

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