Fourth Amendment: The History Behind "Unreasonable …

The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no warrants shall issue, but upon probable cause, supported by oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.

The Fourth Amendment prohibits violations of our privacy and our person from unreasonable infringement by federal agents.

The founding generation had a pretty clear idea of what constituted unreasonable, because they experienced it firsthand under the British rule.

Prior to the Revolution, the British claimed the authority to issue Writs of Assistance allowing officials to enter private homes and businesses to search for evidence of smuggling. These general warrants authorized the holder to search anyplace for smuggled good and did not require any specification as to the place or the suspected goods. Writs of assistance never expired and were considered a valid substitute for specific search warrants. They were also transferable.

Writs of assistance were actually contrary to British legal tradition. In 1604, Attorney General of England Sir Edward Coke held in Semaynes Case that the King did not have unlimited authority to enter a private dwelling.

In all cases when the King is party, the sheriff may break the partys house, either to arrest him, or to do other execution of the K[ing]s process, if otherwise he cannot enter. But before he breaks it, he ought to signify the cause of his coming, and to make request to open doors.

Laying out the case, Coke eloquently upheld the sanctity of a persons home.

The house of every one is to him as his castle and fortress, as well for his defence against injury and violence as for his repose.

Writs of assistance were a flashpoint in the years leading up to the Revolution. James Otis argued strenuously against their constitutionality in what came to be known as Paxtons case. He did not prevail, but his fiery oration heavily influenced John Adams and other revolutionary leaders. Otis vividly described the indignity of the writs.

Now, one of the most essential branches of English liberty is the freedom of ones house. A mans house is his castle; and whilst he is quiet, he is as well guarded as a prince in his castle. This writ, if it should be declared legal, would totally annihilate this privilege. Custom-house officers may enter our houses when they please; we are commanded to permit their entry. Their menial servants may enter, may break locks, bars, and everything in their way; and whether they break through malice or revenge, no man, no court can inquire. Bare suspicion without oath is sufficient.

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Fourth Amendment: The History Behind "Unreasonable ...