Ever wonder how the law adapts to technology that makes it harder or easier for police to search and seize suspected criminals? Orin Kerr posits that an Equilibrium-adjustment exists. "Courts respond to the new facts by trying to restore the old level of protection. If a new technology or practice increased government power, courts ratchet up Fourth Amendment...
19th Century Quotes on the Fourth Amendment
"In the administration of preventive justice, the following principles have been held sacred; that some probable ground of suspicion be exhibited before some judicial authority; that it be supported by oath or affirmation; that the party may avoid being thrown into confinement, by finding pledges or securities for his legal conduct, sufficient in the judgment of some judicial authority; that he may have the benefit of a writ of habeas corpus, and thus obtain his release, if wrongfully confined; and that he may at any time be discharged from his recognizance, or his confinement, and restored to his former liberty and rights, on the order of the proper judicial authority; if it shall see sufficient cause."
"Among the reasons alledged [sic] by a committee of congress, in support of the constitutionality of the alien law, one was; 'that the constitution was made for citizens, not for aliens, who of consequence have no rights under it, but remain in the country, and enjoy the benefit of the laws, not as matter of right, but merely as matter of favour [sic] and permission; which may be withdrawn whenever the government may judge their further continuance dangerous.'
To this it was answered; that, 'although aliens are not parties to the constitution, it does not follow that the constitution has vested in Congress an absolute right over them; or that whilst they actually conform to it, they have no right to it's protection. That if they had no rights under it, they might not only be banished, but even capitally punished, without a jury, or other incidents to a fair trial.' A doctrine so far from being sound, that a jury, one half of which shall be aliens, is allowed, it is believed, by the laws of every state, except in cases of treason. To which we may add that the word 'persons' in this, and the subsequent articles of the amendments to the constitution, most clearly designate, that aliens, as persons, must be entitled to the benefits therein secured to all persons alike."
"In the month of February, 1761, the great cause of writs of assistance was argued before the supreme judicature of the province, in the council chamber in Boston; and this important question was tainted from the beginning with an odious and corrupt intrigue. Chief Justice Stephen Sewall, who was an enlightened friend of liberty, having great doubts of the legality and constitutionality of this projected writ of assistance, at November term, 1760, at Salem, where it was solicited by Cockle, a custom-house officer, had ordered the question to be argued before the court at the next February term in Boston; but Sewall in the mean time died, and Bernard, instead of fulfilling the promises of two of his predecessors, Shirley and Pownall, to give the next vacancy on that bench to Colonel Otis, appointed Hutchinson, for the very purpose of deciding the fate of the writs of assistance...When the cause came on, however, Mr. Otis displayed so comprehensive a knowledge of the subject, showed not only the illegality of the writ, its insidious and mischievous tendency, but he laid open the views and designs of Great Britain, in taxing us, of destroying our charters and assuming the powers of our government, legislative, executive, and judicial, external and internal, civil and ecclesiastical, temporal and spiritual; and all this was performed with such a profusion of learning, such convincing argument, and such a torrent of sublime and pathetic eloquence, that a great crowd of spectators and auditors went away absolutely electrified. The next May, Mr. Otis was elected by the town of Boston into the legislature, and for ten years afterwards; during the whole of which period his tongue and his pen were incessantly employed in enlightening his fellow-citizens and countrymen in the knowledge of their rights, and developing and opposing the designs of Great Britain."
"[The Fourth Amendment] seems indispensable to the full enjoyment of the rights of personal security, personal liberty, and private property. It is little more than the affirmance of a great constitutional doctrine of the common law. And its introduction into the amendments was doubtless occasioned by the strong sensibility excited, both in England and America, upon the subject of general warrants almost upon the eve of the American Revolution. Although special warrants upon complaints under oath, stating the crime, and the party by name, against whom the accusation is made, are the only legal warrants, upon which an arrest can be made according to the law of England; yet a practice had obtained in the secretaries' office ever since the restoration, (grounded on some clauses in the acts for regulating the press,) of issuing general warrants to take up, without naming any persons in particular, the authors, printers, and publishers of such obscene, or seditious libels, as were particularly specified in the warrant. When these acts expired, in 1694, the same practice was continued in every reign, and under every administration, except the four last years of Queen Anne's reign, down to the year 1763. The general warrants, so issued, in general terms authorized the officers to apprehend all persons suspected, without naming, or describing any person in special. In the year 1763, the legality of these general warrants was brought before the King's Bench for solemn decision; and they were adjudged to be illegal, and void for uncertainty.
A warrant, and the complaint, on which the same is founded, to be legal, must not only state the name of the party, but also the time, and place, and nature of the offence with reasonable certainty."
"The prohibition of 'general warrants.' The warrant is the paper which justifies the arresting person to commit so grave an act as depriving a citizen, or alien, of personal liberty. It is important, therefore, to know who has the right to issue such warrants, against whom it may be done, and how it must be done, in order to protect the individual against arbitrary police measures. The Anglican race has been so exact and minute regarding this subject, that the whole theory of the warrant may be said to be peculiarly Anglican, and a great self-grown institution. 'A warrant,' the books say, 'to deprive a citizen of his personal liberty should be in writing, and ought to show the authority of the person who makes it, the act which is authorized to be done, the name or description of the party who is authorized to execute it, and of the party against whom it is made; and, in criminal cases, the grounds upon which it is made.' The warrant should name the person against whom it is directed; if it does not, it is called a general warrant, and Anglican liberty does not allow it. Where it is allowed there is police government, but not the government for freemen. It is necessary that the person who executes the warrant be named in it. Otherwise the injured citizen, in case of illegal arrest, would not know whom he should make responsible; but if the person be named, he is answerable, according to the Anglican principle that every officer remains answerable for the legality of all his acts, no matter who directed them to be done. Indeed, we may say the special warrant is a death-blow to police government."
"The warrant is held to be so important an element of civil liberty, that a defective warrant is considered by the common law of England and America one of the reasons which reduce the killing of an officer from murder to manslaughter."