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Akhil Reed Amar, "Fourth Amendment First Principles," Har-

vard Law Review 107 (1994): 759.

Amar's self-described "package" of search and seizure

"first principles" is interesting, but in the end it

represents nothing more than a set of ad hoc judgments

with respect to what constitutes sound public policy.  See

ibid., pp. 800-816.  Amar's attempt to ground his analysis

and conclusions in the Constitution's text and history is

laudable but unconvincing.

This is not the place for scrutinizing Amar's thesis,

but the Supreme Court of Michigan once offered a brief and

persuasive response to those who would play down the

significance of the warrant clause.  In Robison v. Miner &

Haug, 37 N.W. 21, 25 (1888), the Michigan court observed

that "if the Legislature could evade [the particularity

requirement] by providing for seizures and searches without

legal warrant, the [warrant clause] would be useless."

For a more in-depth critique of Amar's thesis, see Carol

Steiker, "Second Thoughts about First Principles," Harvard

Law Review 107 (1994): 820; Tracey Maclin, "When the Cure

for the Fourth Amendment Is Worse Than the Disease,"

Southern California Law Review 68 (1994): 1; and Thomas Y.

Davies, Statement before the Senate Committee on the Judi-

ciary, Hearing on S. 3, Bill to Control Crime, and for

Other Purposes, 104th Cong., 1st sess. March 7, 1995

(Washington: Government Printing Office, 1997), p. 121.

34. Johnson v. United States, 333 U.S. 10, 13-14 (1948).

For a strong defense of the warrant procedure, see Phyllis

T. Bookspan, "Reworking the Warrant Requirement: Resus-

citating the Fourth Amendment," Vanderbilt Law Review 44

(1991): 473.

35. Jacob W. Landynski, "In Search of Justice Black's

Fourth Amendment," Fordham Law Review 45 (1976): 462.

36. The Supreme Court has notably insisted, however, that

when a warrantless search does take place, the executive

branch must bear the burden of proof in court to show that

the search was lawful.  As Justice Robert Jackson

observed, "When an officer undertakes to act as his own

magistrate, he ought to be in a position to justify [his

conduct] by pointing to some real immediate and serious

consequences if he postponed action to get a warrant."

McDonald v. United States, 335 U.S. 451, 460 (1948)

(Jackson, J., concurring).  See also Vale v. Louisiana,

399 U.S. 30, 35 (1970); and Bumper v. North Carolina, 391

U.S. 543, 548 (1968).