{"id":8006,"date":"2012-11-24T07:34:42","date_gmt":"2012-11-24T07:34:42","guid":{"rendered":""},"modified":"-0001-11-30T00:00:00","modified_gmt":"2012-11-24T07:34:42","slug":"en-US","status":"publish","type":"post","link":"https:\/\/fourthamendment.com\/?p=8006","title":{"rendered":"FEE: The Fourth Amendment and Faulty Originalism"},"content":{"rendered":"

Foundation Economic Education: The Fourth Amendment and Faulty Originalism<\/a> by Joseph R. Stromberg: <\/p>\n

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\u201cAll arrests are at the peril of the party making them.\u201d
\n\u2014Alexander H. Stephens, August 27, 1863<\/p><\/blockquote>\n

These days the Fourth Amendment to the Constitution means next to nothing. Consider, for example, the choice offered a few years ago: surveillance under routine, easy \u201cwarrants\u201d from the drive-through FISA Court or warrantless surveillance at the whim of George W. Bush and his allegedly boundless reserve of unitary-executive authority. A January 2006 Justice Department memo (\u201cLegal Authorities Supporting the Activities of the National Security Agency …\u201d) explained the executive\u2019s claims in mind-numbing and unconvincing detail. But the memo at least suggested how far below any practical service to Americans\u2019 liberty the Fourth Amendment has fallen, and did so by heaping up available (and rather bad) search-and-seizure precedents, many of which arose from the terminally futile war on drugs (pages 37\u201338). The result is something like \u201cyour Constitution on drugs\u201d\u2014with the searchers and seizers on steroids.<\/p>\n

Turning to the Fourth Amendment itself, we read: …<\/p>\n

This sounds pretty good, doesn\u2019t it? And solid, like it might actually mean something. Alas, no such utopian state of affairs actually obtains. It is possible of course that my elementary school teachers just plain lied to us when they spun golden tales about American freedoms.<\/p>\n

Yet surely there is more to it. But if so, what doom befell the Fourth Amendment? We might try looking at various eventful periods when governments\u2014state and federal\u2014felt unusually strong needs to arrest, search, and seize, such as the Civil War, Reconstruction, World War I, Prohibition (see Lacey, in works consulted below), World War II, the Cold War, and (naturally) the war on drugs. It seems, however, that long-running negligence, evasion, and misinterpretation have done more harm to the Fourth Amendment than have various short-run authoritarian panics. Central to this slow but continuous process was the rise of modern policing in the nineteenth century, creating a new institution not foreseen in American constitutions (state or federal) and therefore largely incompatible with them and unaddressed by them (see Roots).<\/p><\/blockquote>\n","protected":false},"excerpt":{"rendered":"

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