September 10, 2012 2:28PM

Class and the Fourth Amendment

Most students learn in history class that our Fourth Amendment emerged from the hostility of the American colonists to "general warrants" and "writs of assistance" authorizing intrusive, discretionary searches of private homes. What they're seldom taught is how strongly that hostility was bound up with undisguised class-based contempt for the officers who conducted those searches—so much so that the scathing rhetoric deployed in the speeches and documents recognized as the Fourth Amendment's inspiration can be a bit of a shock to modern ears.

A list of complaints against British abuses, adopted by Bostonians at a town meeting and then widely-circulated as an influential pamphlet, lamented that under writs of assistance "our houses and even our bedchambers are exposed to be ransacked, our boxes, chests, and trunks broke open, ravaged, and plundered by wretches, whom no prudent man would venture to employ even as menial servants." A legendary speech against he writs by the attorney James Otis—recorded and summarized by a young John Adams, who declared himself profoundly influenced by it—similarly complained that search authority was conferred upon "not only deputies, &c. but even THEIR MENIAL SERVANTS ARE ALLOWED TO LORD IT OVER US — What is this but to have the curse of Canaan with a witness on us, to be the servant of servants, the most despicable of God's creation."

The Monitor alleged that general warrants "empower mean, Low-lif'd ignorant men to enter, and to act at discretion." Maryland's "Farmer and Planter" was outraged that discretionary search powers would be granted excise officers, who were drawn from the "scruf and refuse of mankind." The "Father of Candor" sniffed at the notion that "any common fellow" might presume to search a home on the basis of gossip from his (presumably similarly "common") acquaintances. A writer styling himself "Freeman" asked rhetorically: "What are the pleasures of the social table, the enlivening countenances of our family and neighbors in the fire circle or any domestic enjoyment if not only Custom House Officers but their very servants may break in upon and disturb them?" These "servants," Freeman assured he reader, were "a gang of villains, who for meaness [sic] rapacity and corruption may be stiled the very dreggs and sediment of human nature in the last and highest stage of its possible depravity." In comparison, "Regulus" seems positively restrained in characterizing these officers as "the most despicable wretches."

There's loads of commentary in the same vein. While it was scarcely the primary consideration, one reason specific judicial warrants seemed less offensive than the general warrant was that when magistrates rather than deputies had discretion over which homes could be searched, the indignity of the search was not compounded by the insult of being subject to the will of a social inferior.

You can, of course, find plenty of remarks casting the right of privacy as a great equalizer as well, such as William Pitt's famous defense of the sanctity of the home:

The poorest man may in his cottage bid defiance to all the forces of the Crown. It may be frail — its roof may shake — the wind may blow through it — the storm may enter — the rain may enter — but the King of England cannot enter — all his force dares not cross the threshold of the ruined tenement!

In a way, these apparently quite different sentiments were probably mutually reinforcing: At a visceral and emotional level, elite opposition to general warrants was strengthened by the ghastly prospect of these crude peasants breaking a gentleman's doors, but when that sentiment is translated into a universal principle, it also entails the right of the "poorest man" to defy the King.

The extraordinary dilution of Fourth Amendment in recent decades—powerfully chronicled in Stephen Schulhofer's new book More Essential than Ever—is routinely ascribed to a wide variety of causes, all with some justice: The rise of regular, professionalized police forces; changing technologies; evolving social norms and a culture of exposure; our ongoing Wars on Drugs and Terror (and probably Digital Piracy too—give it a few years). But I'd wager that a significant and subtle role has been played by subliminal class considerations—often in tandem with these other factors.

In Colonial America, recall, policing was largely carried out by amateurs and part-timers, along with such volunteers as they might deputize to help carry out a search. These days they're professionals, often college graduates, who wear suits to court and often appear before the same judge regularly.

The general searches that so incensed Bostonians were meant to aid in the collection of excise taxes, which meant their targets were often respectable merchants and businessmen. Drug dealers are a primary targets of searches today—nearly 90 percent of wiretaps are sought for narcotics investigations—which means, innocent or guilty, they're seldom folks from a social class that naturally inspires judges to identify with them.

Finally, the central mechanism for enforcing the ban on unreasonable searches and seizures was a common-law trespass suit. An "officer" who searched without warrant was treated like any other private citizen and personally liable for damages. A warrant would typically immunize the agent who carried out the search—since he was only obeying the court's instructions—but the officer or citizen whose affidavit gave rise to the warrant could still be liable if no contraband was found. For a variety of reasons, that's no longer how it works. Now courts primarily enforce Fourth Amendment restrictions—unevenly, and with a growing list of exceptions—via the exclusionary rule, which bars the use of evidence derived (directly or indirectly) from illegal searches in criminal prosecutions. The predictable consequence is that virtually the only time an appellate judge sees a Fourth Amendment case is when a guilty criminal is trying to get a conviction overturned.

Perhaps it's no surprise, then, that courts often seem to bend over backwards looking for ways to accommodate police and other government officials, explicitly assuming—utterly contrary to the spirit of the Fourth Amendment—that these upstanding professionals can and must be routinely trusted with substantial individual discretion over who, how, and when to search. We certainly don't need a return to the hostile view that government investigators are "despicable wretches"—but it would be nice to see more recognition that they are, after all, "common fellows" whose intrusions on the privacy and dignity of their fellow citizens require judicial supervision, whether that citizen is an affluent merchant or "the poorest man... in his cottage," and regardless of whether the investigator is a "menial servant" or a clean-cut middle-class professional.