A Liberal House Divided: How the Warren Court Dismantled the Fourth Amendment

41 Pages Posted: 14 Sep 2016 Last revised: 28 Jul 2017

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Morgan Cloud

Emory University School of Law

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Date Written: 2005

Abstract

This article examines the decisions in which a liberal majority on the Warren Court replaced traditional theories of the Fourth Amendment with new doctrines that weakened constitutional protections of privacy, property, and liberty. The text of the Fourth Amendment prohibits unreasonable searches and seizures of persons and of three broad categories of property: papers, houses, and effects. From 1886 until the 1960s, the Supreme Court explicitly employed interpretive theories grounded in the text’s emphasis upon property — although with notable inconsistency. In some contexts, these theories erected powerful limits on government power. In other contexts, the Court’s constricted literalism insulated government surveillance from constitutional scrutiny. During the 1960s, liberals on the Warren Court began to dismantle the link between property law and Fourth Amendment rights, and to replace that traditional construct with a privacy-based theory of the Amendment. For several of these justices a fundamental goal was to impose constitutional constraints upon the use of intrusive modern technologies. In a series of decisions, the Court replaced traditional theories that both imposed procedural requirements and enforced property-based substantive rights with a new, if incoherent, emphasis upon “privacy” as the core Fourth Amendment value. This new approach, particularly as articulated by Justice Brennan, erroneously concluded that the procedural protections contained in the Warrant Clause and enforced by the exclusionary remedy were adequate to protect Fourth Amendment rights. The result has been an erosion of individual rights that can be directly traced to the application of these “liberal” theories.

Suggested Citation

Cloud, Morgan, A Liberal House Divided: How the Warren Court Dismantled the Fourth Amendment (2005). Ohio State Journal of Criminal Law, Vol. 3, 2005. Available at SSRN: https://ssrn.com/abstract=2835533

Morgan Cloud (Contact Author)

Emory University School of Law ( email )

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