CHAPTER FIVE Origins of the Fourth Amendment* “No question can be made with us, but that the Acts of the Legislative body, contrary to the true intent and meaning of the Constitution, ought to be absolutely null and void.” James Kent, Professor of Law, Columbia University, Later Chief Justice, New York Supreme Court, in a Lecture on law, 17941 The Fourth Amendment prohibits the use of general warrants in the United States. The history on this point is incontrovertible.2 The War of Independence was fought in part because of the Crown’s effort to exercise writs of assistance, a form of general warrant wherein government officials failed to specify the precise place or person to be searched, or to provide evidence, under oath, to a third party magistrate, of a particular crime suspected. In the *Special thanks to Ellen Noble and Morgan Stoddard for their research assistance. Dan Ernst, Erin Kidwell, Jim Oldham, Brad Snyder, and Bill Treanor provided thoughtful comments on an earlier version of the chapter, and Ladislas Orsy kindly helped to verify the meaning of the original Latin texts. My appreciation also extends to Randy Barnett and Larry Solum, for including me in the intellectual life of the Georgetown Center for the Constitution. It has had a formative impact on my scholarship. 1 James Kent, Introductory Lecture to a Course of Law Lectures, New York, 1794, http://oll.libertyfund.org/titles/2068. 2 Some scholars have erroneously asserted that the Fourth Amendment does “not require warrants, probable cause, or exclusion of evidence, but they do require that all searches and seizures be reasonable.” Akhil Amar, Fourth Amendment First Principles, 107 HARV. L. REV. 757 (1994). Amar misses a critical aspect of the Fourth Amendment, which is that it was designed precisely to prevent issuance of general warrants and to require warrants with sufficient particularity. Amar rightly notes that under some circumstances, such as hot pursuit, or the hue and cry, searches pursuant to arrest could be carried out absent a warrant. Id., at 764. But he is mistaken that “The common law search warrants referred to in the Warrant Clause were solely for stolen goods.” Id., at 765. His lack of reliance on primary sources similarly leads him to read the 1789 statutory authorization for warrants to search ships, houses, stores, and buildings improperly. He notes that the related statutes allowed customs officers to obtain a warrant and concludes that because they could obtain a warrant, it did not mean that they had to. Id., at 766. But this is precisely the opposite of how the statutes were viewed at the time and how the courts interpreted the provisions. See discussion, infra. For more accurate discussions of the origins of the Fourth Amendment see WILLIAM J. CUDDIHY, THE FOURTH AMENDMENT: ORIGINS AND ORIGINAL MEANING 602-1791 (2010), and Thomas Y. Davies, Recovering the Original Fourth Amendment, 98 MICHIGAN L. REV., 547, 565, fns. 21 -25 (2000). But note that even these are not without error. Cuddihy, for instance, cites Hale as referencing Coke in support of the claim that general warrants are contrary to the British Constitution. Hale, however, references Crompton, not Coke, in support of this claim—and, notably, is mistaken in doing so, as the clauses cited in Crompton actually support the use of general warrants. Compare SIR MATTHEW HALE, PLEAS OF THE CROWN: A METHODICAL SUMMARY (1678), p. 93, citing to “C. Jur. Courts, p. 177”; RICHARD CROMPTON, L’AUTHORITIE ET JURISDICTION DES COURTS DE LA MAJESTIE DE LA ROYNE (1594), p. 177; and CUDDIHY [INSERT CITE]. DONOHUE, THE FUTURE OF FOREIGN INTELLIGENCE 1 Ch. 5: Origins of the Fourth Amendment shadow of the French and Indian War, the British government had begun to make ever-greater use of the writs, sowing the seeds of revolution. James Otis’s fiery oration in Boston against the instruments became a rallying cry for the colonists. “Then and there,” John Adams, who was present at the time, wrote, “was the first scene of the first Act of Opposition to the arbitrary Claims of Great Britain. Then and there the child Independence was born.”3 In rejecting general warrants, the Founders were heavily influenced by English history and political thought. For centuries, some of the keenest legal minds had rejected promiscuous search and seizure as a violation of the British Constitution. General warrants were regarded as the worst exercise of tyrannical power. In the early 17th Century, Lord Coke had attributed the denial of promiscuous search and seizure authorities to Magna Carta—the great charter, and the font of liberty. Pivotal cases across the Atlantic immediately prior to the founding, and avidly followed by the colonists, reinforced the principle that general warrants were not to be tolerated in a free society. State declarations of rights and constitutions at the Founding uniformly rejected general warrants as a violation of individual rights. When it came time to sign the Constitution, it was only with the understanding that new language would be added, encapsulating a ban against promiscuous search and seizure, that some of the most important states to join the Union agreed to the terms of the framing. For early Americans, the only way that the government could intrude on the sanctity of one’s home, violating the privacy of individuals in their own sphere and in their social relationships, was by presenting evidence, under oath, to a magistrate, of a crime committed, and for the court to issue a warrant under its own seal, particularly describing the place to be searched, and the individual on whom the warrant would be served. The debates and discussions surrounding the right to be secure against unreasonable search 3 Letter from John Adams to William Tudor, Mar. 29, 1817. LbC, Adams papers. DONOHUE, THE FUTURE OF FOREIGN INTELLIGENCE 2 Ch. 5: Origins of the Fourth Amendment and seizure are notable by what they did not include. They did not include exceptions for treason or threats to the government. They did not allow for suspensions or violations for foreign intelligence purposes or for collection of customs or revenues. It was any judicially-sanctioned governmental intrusion in one’s private sphere that the Framers sought to regulate and to confine within narrow bounds. It is thus not without some surprise that general warrants have returned with a vengeance. It would be difficult to imagine a better example of a general warrant, than the one order, issued by the Foreign Intelligence Surveillance Court, that authorizes the collection of international Internet and telephone content. The order names approximately 90,000 targets, in the process monitoring millions of Americans’ communications. There is no prior suspicion of any wrongdoing, and any illegal behavior uncovered can then be prosecuted in a court of law. The program is so massive that the government openly acknowledges that it is impossible to state the number of citizens whose email, telephone, and visual communications or private documents are being monitored.4 The program is embedded in the most secret corners of government. Information obtained may be used to focus other surveillance authorities on individuals identified in the collection, as well as to bring criminal charges against them. It may be kept and shared with the military, with other agencies, and with foreign governments. The database constructed from this information may be queried using citizens’ information, and it may be accessed for criminal law purposes utterly unrelated to foreign intelligence. If ever there were an end run around the Fourth Amendment, and a violation of the prohibition against general warrants, it is the way in which programmatic collection is being conducted under section 702. As was discussed in detail in chapters two and three, it is not the only broad collection program underway. On May 24, 2006, the Foreign Intelligence Surveillance Court approved an FBI application for an order requiring Verizon to turn over all telephony metadata to the National Security 4 See, e.g., PCLOB Report. DONOHUE, THE FUTURE OF FOREIGN INTELLIGENCE 3 Ch. 5: Origins of the Fourth Amendment Agency.5 The Court approved similar applications for all major U.S. telecommunication service providers. Over the next decade, FISC issued orders renewing the bulk collection program forty- one times.6 Almost all of the information obtained related to the activities of law-abiding persons who were not the subjects of any investigation.7 FISC has acknowledged that the vast majority of the call-detail records provided relate to communications not just between the United States and overseas, but “wholly within the United States, including local telephone calls.”8 There is no particularized showing prior to the collection of this telephone data. There is no evidence of any criminal activity. And there is no limit on the number of people whose information is being collected. These programs herald a new approach to foreign intelligence collection. They are patently unconstitutional. Traditionally, the foreign affairs component of intelligence collection was institutionally and geographically separate from the realm of criminal justice. It was foreign countries and their citizens, or U.S. citizens physically located overseas, who were subject to electronic surveillance. Since 1978, the government has had to demonstrate probable cause that citizens located ithin the United States are foreign powers or agents of foreign powers, and probable cause that the targets are going to be used the facilities to be placed under surveillance. These restrictions do not apply to the collections currently underway. 5 In re Application of the Fed. Bureau of Investigation for an Order Requiring the Prod. of Tangible Things from [Telecommunications Providers] Relating to [REDACTED], Order, No. BR 0605 (FISA Ct. May 24, 2006), available at https://www.eff.org/sites/default/files/filenode/docket_06-05_1dec201_redacted.ex_-_ocr_0.pdf, [http://perma.cc/MT9D-4W2Y] (released by court order as part of the Electronic Frontier Foundation’s Freedom of Information Act (FOIA) litigation).