fourth

A Deconstruction of the 4th (and why its meaning has changed)

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The writs of assistance were search warrants issued to British law enforcement officers to search ships and homes for smuggled goods to upkeep smuggling laws. These writs of assistance and general warrants that England was imposing on the colonial homes and businesses, specifically to enforce trade and navigation laws, must have concerned the authors of the Bill of Rights. Limiting the power the government has on searching and seizing the peoples’ property would especially be an anti-federalist goal since they advocated for individual liberties.   

The common interpretation of the fourth amendment centers around safeguarding the security of individuals, ensuring that neither they nor their belongings can be encroached upon or violated without a reasonable warrant. Warrants are typically awarded to enforcement officers by a judge or a magistrate and must be produced based on probable cause, or be reasonable enough to confiscate or enter your property. Additionally, warrants must be clear about what they will allow authorities to collect or search. The goal of the fourth amendment is that of maintaining citizens’ privacy and security so that you and your property cannot be intruded on or violated without a warrant.   

The exclusionary evidence rule makes all evidence that has been collected illegally, void. The Fourth Amendment has sparked debate over whether the methods of search for the collection of evidence are legal or not. Recently, the controversy has centered due to a shift of applications from physical property, such as the search of your house or your belongings, to informational or intellectual property, such as the mass collection of your internet metadata. Specifically, digital privacy, or the safeguarding of logs that internet providers or telecommunications companies store on servers has been at issue, since the information citizens feel violated by the collection and search of their personal, otherwise private data. On the other hand, the search and collection of evidence helps catch serious criminals who wouldn’t have been otherwise caught. This complicates matters because who decides when the collection is necessary and when it is intrusive?   

Locke considered the right to private property a natural right. Locke’s enlightenment ideals align with the fourth amendment right to no seizure without a proper warrant because he believed the property was private.  I find the interpretation times have changed argument more effective because it points out the similarities between physical and non-physical property. The conflict I come to with the argument that informational property should be treated the same as physical is that times have changed, and oftentimes, there is more information about us online than in our own homes. We should have the right to keep that information private. Although the data is available to internet companies, internet companies do not have the power to arrest you on your own, but the government does. The collection of data can fall under the Fourth Amendment depending on who is collecting it. If I could amend the Fourth Amendment, I would make a point to differentiate what rights people have regarding the security of their physical property versus their digital property.

Austin Gordon – Fourth Amendment

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The Fourth Amendment is one of the most impactful constitutional amendments, with key implications throughout all 250 years of America’s history. The amendment provides people the right to not have their “persons, houses, papers, and effects”, or in today’s terms, themselves, their home, their papers, or any other property, searched or seized/detained by the government. In order for the government to do so, they must have a search warrant or probable cause to believe that a crime has been committed.

The amendment additionally states that any search warrant must be specific in describing what can be searched or seized by the government.This amendment is primarily in response to “writs of assistance”, which were general search warrants that allowed officials to search any location they deemed suspicious, issued by the British before the revolution. This allowed British officials to search essentially anything they wanted, allowing them to become massively intrusive and invade the privacy of colonists.

The fourth amendment was made to ensure that these abusive and unjust practices were not replicated by the new American government, and made sure that a point of revolutionary outrage was addressed in the Constitution. The requirement for search warrants to be highly specific made by the amendment is in direct response to the writs, as the Founding Fathers wanted to ensure that officials could not abuse search warrants to unnecessarily invade privacy.  In the nearly 250 years since the amendment was written, security, law enforcement, and technology have changed in ways unimaginable to the Founding Fathers, leaving it up to the courts to interpret the amendment and apply it to new situations. The most important fourth amendment case was Weeks vs United States in 1914, in which Weeks argued that the items that were seized from him illegally could not legally be used against him in court.

The court sided unanimously with Weeks, ruling that any illegally acquired evidence could not be used in court. This case created a consequence for violating the fourth amendment, and without it, the rights it provides could not be effectively upheld. More recent cases like Kyllo vs United States in 2001, in which Kyllo argued that the police’s use of thermal scans on his home without a warrant was a violation of the fourth amendment, and won. Cases like this one have allowed the fourth amendment to evolve and protect the people against new technology or policing practices.

Justices dissenting in cases like these will often argue the originalist interpretation of the amendment, arguing that we should only consider the amendment within the scope of the era in which it was created. I, as well as the majority of legal scholars, disagree with this theory, and believe that evolving fourth amendment protections is necessary to protect rights. One potential way to further protect people’s fourth amendment rights would be to encourage congress to create laws around new security practices or technologies to enforce compliance with the fourth amendment, as the courts can only step in once a violation has already occurred. But as long as our legal system stands, the fourth amendment will continue to protect the American people for years to come.

Fourth Amendment

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 The Fourth Amendment of the U.S. Constitution outlines the powers of the police to search and seize the property of citizens. At the time of its ratification, December 15, 1791, two forms of search in the colonies and England infringed on people’s privacy. In England, “general warrants” allowed royal officials to search a person’s belongings upon suspicion of political opposition. In the colonies, “writs of assistance” allowed customhouse officers, sheriffs, constables, and other officials to search any house for smuggled goods without specifying the house or the goods. The Fourth Amendment limits government power to seize and search people, their property, and their homes. Some cases require warrants to conduct searches, while probable cause is enough for others. To obtain a warrant, the government must show probable cause—a certain level of suspicion of criminal activity—to justify the search. 

The Palmer Raids of 1920 are an example of how the Fourth Amendment has been interpreted in divergent ways. After the Russian Revolution, which establish a communist state, Americans feared a similar domestic revolution. The Red Scare, lasting from 1970 to 1920, was a widespread fear of immigrants creating a rise in anarchism, communism, and radical leftist ideologies. To reduce the number of immigrants, the U.S. Department of Justice, led by A. Mitchell Palmer, conducted a series of arrests known as the Palmer Raids. Those detained were suspected of sympathizing with communists or anarchists. Many immigrants, merely speaking with an accent, were arrested, surpassing the number of warrants issued. The arrests were lawful, the department argued, because the suspects supported overthrowing the government. Prominent lawyers and legal scholars argued that the arrests were unconstitutional. Supreme Court Justice Felix Frankfurter, Ernst Freund, and Harvard Law School Dean Roscoe Pound wrote that the Department lacked warrants, allowed officers to use unrestrained force, and  seize documents at will.

The Fourth Amendment states what cannot happen in cases of search and seizure, but not what will happen if it is violated. The 1920s Silverthorne Lumber Co. v. United States court case illustrates how the Fourth Amendment has been breached, then debated. Silverthorne attempted to evade paying taxes, so Federal officers searched the company’s office and copied various documents “without a shadow of authority” said Justice Oliver Wendell Holmes. The court’s ruling held that illegally copied evidence was tainted, so the government couldn’t use it to frame a new indictment or prosecute. This is the exclusionary rule, prohibiting evidence unconstitutionally obtained to be used in court. If tainted evidence were allowed, Holmes’s ruling held, the police would attempt to find ways around the Fourth Amendment. The case illustrates how the parameters of the Fourth Amendment have been expanded and reinterpreted since its ratification.

The Fourth Amendment’s protection against unreasonable searches and seizures, along with the requirement of warrants based on probable cause, exemplifies the Founding Father’s commitment to limiting the power of the government and protecting individual rights. This relates to Enlightenment thinker Baron de Montesquieu’s theory of separation of powers, which heavily influenced the U.S. Constitution. Montesquieu advocated for a system of checks and balances, where power is divided among several branches. This aimed to prevent a single individual or group from gaining too much power, which would protect the rights of the people. I find Justice Holmes’s interpretation persuasive and believe that while the amendment does not need change, fairly recent cases before the Supreme Court involving police searching vehicles without warrants have undermined this right. So perhaps there must be changes made to further enforce the fourth amendment. 


Works Cited

The Editors of Encyclopaedia Britannica. “Writ of Assistance.” In

    Encyclopaedia Britannica. Last modified February 28, 2020.

     https://www.britannica.com/topic/writ-of-assistance.

Encyclopedia of the American Constitution. “Silverthorne Lumber Co. V. United

     States 251 U.S. 385 (1920).” In Encyclopedia of the American Constitution.

     Last modified may 25, 2023. https://www.encyclopedia.com/politics/

     encyclopedias-almanacs-transcripts-and-maps/

     Silverthorne-lumber-co-v-united-states-251-us-385-1920.  

Friedman, Barry, and Orin Kerr. “The Fourth Amendment.” In National Constitution

     Center. https://constitutioncenter.org/the-constitution/amendments/

     amendment-iv/interpretations/121. 

 

The Fourth Amendment- Charlotte Simon

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The Fourth Amendment was created in response to the British policies allowing raiding of people’s houses and personal belongings without cause. The English government would issue “writs of assistance” essentially allowing British officers to barge into people’s homes and seize their belongings. The Framers, specifically James Madison, knew this was a direct violation of privacy and basic rights. With this in mind, Madison wrote the fourth amendment, as they did not want the Constitution to subject future Americans to unreasonable, lawless searches. The fourth amendment ensures the privacy and safety of American citizens. Personal items and property are protected by this amendment, as it prevents the police from searches and seizures of personal property without a justifiable reason.

 

The wording of the fourth amendment provides for it to be interpreted in a few different ways. Supreme Court Justices do not always agree on how the amendment should be enforced and even if the amendment should be followed in the first place. On one hand, some Justices stick to the wording of the amendments and argue that warrants are absolutely necessary, and if they are not obtained, the search would be illegitimate. However, some Justices, claiming that a warrant is not needed, as long as the search is reasonable and “upon probable cause.” Legal scholar Barry Friedman thinks that the amendment is essential to everyday protection. He argues that our data is constantly being analyzed, like internet cookies, and that the fourth amendment is protecting the people’s security and keeping the government out of our lives and property without a justifiable reason.

 

He also proposes guidelines for searches and seizures. First, he argues that no one from the executive branch can step into people’s lives without permission from another branch of government because no search is “reasonable” if the legislative or judicial cannot also agree on it. Second, warrants are favored as they are crucial for protecting public safety. Lastly, searches should be differentiated between society and suspects. Though it is a bit of a stretch, the fourth amendment is an amendment that gives power to the people, not an uncommon theme in the French Revolution. The third estate in France fought for equal taxes and power, and the fourth amendment protects the American people from an overstepping government. So while both are different, they do share the same theme of giving power to the people and keeping their respective governments in check. I am a believer in warrants and the fourth amendment as a whole. As the world and technology becomes more and more invasive, sometimes I really worry about the security of my data. The fourth amendment is in our constitution to protect us, and our property’s safety. As for warrants, they allow the policing force to perform searches and seizures in a significantly less invasive way. And, when they do perform searches/ seizures without a warrant, legally it has to be because they have a genuine reason.

The Fourth Ammendment

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In Britain, general warrants allowed the Crown’s messengers to search without cause any person suspected of committing an offense; while in the colonies, the Crown used “writs of assistance” as general warrants, but without time restraints.  Both controversies have led to the inclusion of the Fourth Amendment in the Constitution. The Fourth Amendment speaks to the idea that it is illegal for the government or government authority, such as a  Police officer or Military Personnel, to search or claim your person, property, whether that is your house, car, dog or any other sort of property, without a search Warrant.

 

The 21st century and the advent of modern technology has led scholars to debate whether The Fourth Amendment is applicable to the Internet Age where digital information can be readily accessed via the cloud or third parties “tracking” data. According to Orin Kerr a legal scholar, taking online data should be reasonable search and seizure, because if a burglar had just robbed a store and posted a picture of them with the money, it would only make sense for the court to constitutionally “seize” that photo, and use it in the Court of Law. Carpenter vs. United States was a U.S. Supreme Court case that took place in April 2011. Police detained 4 men who had committed armed robbery and the FBI used the cell phone numbers of these 4 men to determine additional charges. This Amendment connects to Thomas Paine’s Common Sense as they both share themes of independence and inalienable rights.

 

I agree with the view saying that certain data sent to a third party/cell companies should remain private. ‘Public’ information should only be information that you choose to publicize, for if you do not know what is public or not, it violates your rights because it is publicizing data without your consent, and the government should not be able to use that information. Public information should only be info you choose to disclose. If for example you choose to have a private account for example, that information (posts, tweets, etc.) should remain as private information. On social media accounts, there should be options to allow the website to disclose your information to the government/make it public. The user should know whether or not information is public. If they say no, the government will not have access to this information.

 

 

 

 

Oliver – The Fourth Amendment

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In Britain, a common practice was to put out “general warrants” that allowed law officials to search anyone’s house regardless of if there was cause. In the colonies, instruments similar to “general warrants” were used to ensure that the taxes placed on the colonies were enforced. Thus, when the bill of rights was drafted, the fourth amendment was made to address search and seizure by the government.

The commonly understood meaning of the fourth amendment is that it prohibits the government from apprehending or searching a person or their property without a warrant that is granted due to probable cause. There are many cases of dispute over the fourth amendment. However, the majority involve the idea of how technologies having been invented since this amendment was originally penned, factor into government monitoring of those technologies.

In 1967 the supreme court did rule that, in the Katz vs. The United States case, wiretapping of even public phones violated the fourth amendment. This is a direct example of a moral interpretation of the 4th amendment as the wiretapping of phones is not directly covered in the fourth amendment. While this may just be one case being referenced here, it does point to the idea that the fourth amendment is largely understood through moral interpretations instead of textual interpretations. However, while the debates about if wiretapping of phone calls violates the 4th amendment have died down, new debates regarding how the 4th amendment applies to the internet.

Legal scholar Orin Kerr makes the claim that only public internet activity (such as social media posts) should be able to be used without the warrant that would need to be required by the fourth amendment if it were to apply. He suggests that a balance must be obtained that mirrors that of the physical world where some data, which would already be apparent to all, can be obtained without a warrant but data that is not distributed by the investigated person should require one (similar to one’s private property). In opposition, Barry Friedman argues that, since, in searching for digital evidence, every action by the government must be targeted at a specific person, warrants should be required in all cases.

I personally agree with Orin Kerr because, since the information being put intentionally on the internet was deliberately put there for anyone to see, warrants should only be required for monitoring data not released to the public. Despite the disputes that can arise over it, I would not want to amend the fourth amendment as it lays the groundwork for ideas that can be applied in many different times. Finally, an area of study this year that is in stark contrast to this is the ideals of Tokugawa Japan. In Tokugawa Japan, not only were citizens encouraged to report on any changes discussed by people in their area but, also, in direct opposition with the idea of probable cause, citizens were told that logic could be violated to uphold the broader law.