Ranking The Bill of Rights, Number 2: The Fourth Amendment

Contain your excitement. The “Ranking The Bill of Rights Series” is back and better than ever. Why such a time lag between the Number 3 ranking and the Number 2 ranking? Let’s just say it’s because the decision was incredibly tough.*

*I will likely contradict this in my next Bill of Rights post.

Coming in at second is an amendment I view dearly. It has never stolen from me—at least in an unreasonable manner—and whenever it’s around I feel an aura of security. I present the Fourth Amendment:

“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 is one of the most straightforward amendments in the Bill of Rights: If the government is going to search or take your property,* they must have judicially sanctioned probable cause supported by specific details about what is to be searched and seized. The prime purpose of the Bill of Rights was and is to check government abuse of power. No amendment in the Bill of Rights—not even the amendment that is going to place first**–effectively restrains government power as much as the Fourth. In England and Colonial America, searches and seizures based on “general” warrants were quite common and manifested themselves through writs of assistance. Officers needed some justification to take property, but that justification did not need to be particularly specific. Due to colonist outrage at general searches, most colonies banned their issuance, a ban reaffirmed by the Fourth Amendment, which was incorporated to apply to state governments as well in 1961. So, the Fourth Amendment was responding to a real problem, a problem that certainly would have continued in criminal investigations beyond the context of Revolutionary War.

*Despite the fact that the government is not explicitly mentioned in the wording of the amendment, it only restricts the government, not private individuals.

**I know that loyal readers are by now aware of what is going to place first. Nonetheless, I delude myself and pretend that you have no clue.

The Fourth Amendment protects individual property rights, the third natural right argued by John Locke and which should have been in the Declaration of Independence. Why do property rights matter? You may think individuals are morally entitled to them. For instance, you may support property rights based on a labor theory of property, most famously espoused by Locke—the idea that one who applies his labor to land or other property is morally entitled to it. Or, you might make an even broader moral argument like Robert Nozick who takes it a step further in his entitlement theory, arguing that individuals are entitled to property that they acquire through any other just transaction.* But, you need not support the labor or entitlement theories or any other moral theory of property to appreciate how important the protection of property rights is in the United States. Even if you’re a Rousseauvian who views property as theft, it is uncontested that secure and clear property rights are absolutely crucial for a thriving capitalist economy, an economy the U.S. undoubtedly possesses. Capitalist economies without formal and secure property rights generally do not thrive as was ably demonstrated by Hernando de Soto in one of the best pieces of nonfiction of the Aughts. The straightforwardness of the Fourth Amendment in ensuring that property rights are not infringed without probable cause motivates individuals to be industrious and to work since they can be fairly confident that the products of their labor will not be seized unpredictably.

*This formulation defends the right of individuals to possess property that is inherited or transferred to an individual even if they didn’t mix their labor with it according to the traditional Lockean formulation.

But merely looking at labor undersells the impact of property rights and, therefore, undersells the impact of the Fourth Amendment. Having a right to not have your home searched (or seized) without probable cause means that you can behave as you like inside that home so long as your behavior doesn’t generate probable cause for a search. The behaviors most likely not to generate probable cause are behaviors that don’t harm other individuals. So, while individuals may worry about buying marijuana on a street corner, for example, most don’t worry about the police entering their home while they are getting high. Why so little worry? Well, admittedly, part of it is just because it’s not a productive use of the police force’s time to go after casual recreational users.* And, pot smokers are aware of that.

*Going after medical users is fine though!

But, a bigger part of it is that the Fourth Amendment has generated an expectation of a reasonable amount of personal privacy in one’s home. Predictability was important for motivating work, but it also leads to a substantial increases the range of behaviors and actions that individuals can take in their own homes, including illegal actions. By providing a reasonable zone of privacy, it prevents the chilling of particular behaviors that occur within this zone of privacy. It may sound odd to say that the Fourth Amendment encourages illegality, but it does: It promotes human behavior that would not generate externalities or other effects sufficient to spark probable cause for search or seizure. Of course, the Fourth Amendment encourages perfectly lawful behavior too, but I stress the point about behavior on the fringe of legality to demonstrate two main points: First, the effects of the Fourth Amendment are very broad—much broader than they first appear. Second, this broad scope is good. The behaviors promoted by the Fourth Amendment that are on the fringe of legality tend to be victimless crimes—crimes that, in my opinion, often ought not be punished, especially given our incarceration problems.  Restricting the government from punishing these crimes, then, is a good thing.

Now, the Fourth Amendment isn’t perfect. There are strong arguments to be made against the exclusionary rule, which deems that evidence collected in violation of an individual’s constitutional rights (most importantly, their Fourth Amendment rights) is inadmissible in criminal prosecutions. The exclusionary rule prevents a tradeoff between discouraging unreasonable and warranteless searches and seizures and, at the same time, promoting unjust outcomes, by excluding evidence, which may conclusively confirm a defendant’s guilt. Why not simply punish police officers who violate individual’s constitutional rights? “Probable cause” is also quite vague and the Supreme Court has said it’s a flexible standard, in a case that upheld a warrantless search of a car for liquor during Prohibition.

Despite interpretive flexibility and controversial doctrines that have arisen out of the Fourth Amendment, it protects one of the—if not the most—important individual right in a capitalist economy: the right to property. And, it is effective and influential. It was formed in response to general searches, which occurred often. Even now, police constantly struggle to generate probable cause. Unlike the Third Amendment, which is also a property rights amendment, the Fourth Amendment has an impact every single day in every single state. So, given its scope, efficacy, and moral and economic importance, the Fourth places second.

4 responses to this post.

  1. Posted by Dan on January 14, 2010 at 3:36 PM

    well written, josh


  2. […] we know America’s airports are safe! This also presents an interesting Fourth Amendment (the second best!) […]


  3. Awesome! Its in fact awesome paragraph, I have got much clear idea about from this piece of


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