Against That 'Powerful Engine of Despotism'

This work argues that the original intent of the Fourth Amendment was subverted due to a significant shift in the concept of justice among many political and legal thinkers in the twentieth century. The original aim of the Fourth Amendment was to differentiate between private property searches, generally requiring warrants, and searches in public areas, which allow searches without a warrant if there is just cause. The focus is on recent factors that led the United States government to weaken protections against property searches, specifically commercial property, while expanding protections against searches in public areas. Professor Newman asserts that starting in the early twentieth century, legislators, jurists and academics envisioned a need for an administrative state to control and regulate a large industrial economy. This need to increase business regulation led to considerable changes in the approach to commercial searches conducted by government agencies. The public interest, as defined by these government agencies, began to take preference over businessmen's Fourth Amendment rights, enacting such bureaucratic policies as the administrative warrant, which does not require probable cause. The author examines how public area searches have undergone stricter judicial standards in the twentieth century than those of the Founding generation. While the earliest jurists required only probable cause to search public areas, the modern legal system, with some retreat beginning in the 1990s, requires warrants for public searches. This development in Fourth Amendment jurisprudence is attributed to a modern ideology in which liberty is equated with license and freedom is divorced from morality. Professor Newman insightfully demonstrates how our Fourth Amendment jurisprudence would be more effective in protecting today's society if we returned to the principles of justice and property-rights protection originally enacted by our Founders.