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Separation of Powers and the Fourth Amendment

In his famous treatise, Commentaries on the Constitu-

tion of the United States, Justice Story wrote that the

provisions of the Fourth Amendment were "doubtless occa-

sioned by the strong sensibility excited, both in England

and America, upon the subject of general warrants almost

upon the eve of the American Revolution."  Story also re-

marked that the Fourth Amendment is "little more than the

affirmance of [the] great constitutional doctrine of the

common law."12

At first blush, Story's statements about the Fourth

Amendment may seem inconsistent and implausible.  After

all, why would the American revolutionaries revolt against

Great Britain and its general warrants only to turn around

and incorporate English legal principles into their own

Bill of Rights?  The answer to that question lies in the

distinction between the common law (judge-made law) and

statutory law (legislative law).  The early Americans

admired the English common law with respect to searches

and seizures, but they detested the statutory laws of

Parliament--precisely because those legislative acts flout-

ed common-law principles.

Under the common law, the courts issued only special

warrants, which carefully circumscribed the power of Crown

officers.  Parliament, however, had the discretionary power

to authorize nonjudicial officials to issue the much de-

spised general warrant, which was notorious for its sweep-

ing and open-ended terms.  Against that background,

Story's commentary on the Fourth Amendment makes perfect

sense.  The Fourth Amendment "constitutionalized" the com-

mon-law principles of search and seizure so that Congress

could not dilute or distort those principles with the sim-

ple passage of a statute.

Executive Warrants, Multiple Officeholding, and

Writs of Assistance

During the 1730s the British government sought to

prevent the American colonies from conducting business with

non-English industries.  To enforce the trading restric-

tions, Parliament authorized the issuance of general search

warrants that were called writs of assistance.  Those

writs conferred broad discretionary powers on individual

officials to enter homes and shops in search of contra-

band.  Disruptions during the French and Indian War pre-

vented the writs from being widely used, but once that

conflict ended, British officials turned their attention to