The Good Old Days of the Fourth Amendment:
In the comment thread on yesterday's post about Virginia v. Moore, commenter "30yearprof" writes:
I wonder, though, when exactly were the "good old days" of the Fourth Amendment? Clearly the "good old days" of the Fourth Amendment could not be from 1791 to 1961, before the full application of the Fourth Amendment to the states. Before 1961, the Fourth Amendment didn't do much, as most police work was state local and the Fourth Amendment either didn't apply at all (until 1949) or didn't make any difference in practice (from 1949 to 1961). In 1961, with Mapp v. Ohio, the Fourth Amendment suddenly became a hugely important control on routine police investigations: Maybe if you want to pick a time of the "good old days" of the Fourth Amendment, you say 1961.
But no, that can't work. 1961 was before Berger and Katz, before the "reasonable expectation of privacy" test and before the Fourth Amendment applied at all to bugging or wiretapping. So the good old days probably don't include from 1961 to 1967. Maybe we want to start the good old days on December 18, 1967, when the Supreme Court handed down Katz.
Maybe. On the other hand, the record in that period is sort of mixed. A few months before Katz, on May 29, the Supreme Court had dramatically expanded the warrant power and overruled the mere evidence rule in Warden v. Hayden. And just a few months after Katz, in Terry v. Ohio, handed down June 10, 1968, the Supreme Court took a significantly watered down approach to the Fourth Amendment to regulate police/citizen interactions on the street. It's kind of hard to know how you balance these cases: for example, was Terry a gutting of the full Fourth Amendment protection, or an expansion of the Fourth Amendment to street enounters? I think it's pretty mixed record to find the real high point of Fourth Amendment protection.
The Supreme Court's record since 1968 is also somewhat mixed. It is clearly correct that there are some cases that clearly narrowed Fourth Amendment protection, like United States v. Leon. But a number of the cases that critics say "eviscerated" the Fourth Amendment simply refused to expand Fourth Amendment protections or addressed issues that had never been resolved, like the many cases on aerial surveillance. And then there were also some cases that expanded protection, like Payton v. New York or Kyllo v. United States.
If you had to identify a "high point" of Fourth Amendment protection, I suppose you might pick the window from December 1967 to May 1968, or maybe the six years from December 1967 until some of the pro-law enforcement decisions of the Court in 1973. But if that's right, it seems to me that the "good old days" of the Fourth Amendment were actually a pretty narrow window of time: anywhere from a few months to five or six years, around forty years ago, out of a 217-year history of the Fourth Amendment.
This seem[s] to pretty well summarize the Supreme Court's evisceration of the 4th Amendment since the 1970's. We seem to have a bench of police "groupies."I hear this pretty often in debates on the Fourth Amendment. The Fourth Amendment has been eviscerated, the complaint goes. The Supreme Court has gutted it; there's hardly anything left. Back in the old days — that's when the Fourth Amendment really meant something.
I wonder, though, when exactly were the "good old days" of the Fourth Amendment? Clearly the "good old days" of the Fourth Amendment could not be from 1791 to 1961, before the full application of the Fourth Amendment to the states. Before 1961, the Fourth Amendment didn't do much, as most police work was state local and the Fourth Amendment either didn't apply at all (until 1949) or didn't make any difference in practice (from 1949 to 1961). In 1961, with Mapp v. Ohio, the Fourth Amendment suddenly became a hugely important control on routine police investigations: Maybe if you want to pick a time of the "good old days" of the Fourth Amendment, you say 1961.
But no, that can't work. 1961 was before Berger and Katz, before the "reasonable expectation of privacy" test and before the Fourth Amendment applied at all to bugging or wiretapping. So the good old days probably don't include from 1961 to 1967. Maybe we want to start the good old days on December 18, 1967, when the Supreme Court handed down Katz.
Maybe. On the other hand, the record in that period is sort of mixed. A few months before Katz, on May 29, the Supreme Court had dramatically expanded the warrant power and overruled the mere evidence rule in Warden v. Hayden. And just a few months after Katz, in Terry v. Ohio, handed down June 10, 1968, the Supreme Court took a significantly watered down approach to the Fourth Amendment to regulate police/citizen interactions on the street. It's kind of hard to know how you balance these cases: for example, was Terry a gutting of the full Fourth Amendment protection, or an expansion of the Fourth Amendment to street enounters? I think it's pretty mixed record to find the real high point of Fourth Amendment protection.
The Supreme Court's record since 1968 is also somewhat mixed. It is clearly correct that there are some cases that clearly narrowed Fourth Amendment protection, like United States v. Leon. But a number of the cases that critics say "eviscerated" the Fourth Amendment simply refused to expand Fourth Amendment protections or addressed issues that had never been resolved, like the many cases on aerial surveillance. And then there were also some cases that expanded protection, like Payton v. New York or Kyllo v. United States.
If you had to identify a "high point" of Fourth Amendment protection, I suppose you might pick the window from December 1967 to May 1968, or maybe the six years from December 1967 until some of the pro-law enforcement decisions of the Court in 1973. But if that's right, it seems to me that the "good old days" of the Fourth Amendment were actually a pretty narrow window of time: anywhere from a few months to five or six years, around forty years ago, out of a 217-year history of the Fourth Amendment.