March 12, 2012 – Essay #16 – Amendment IV: Warrants to Have Probable Cause – Guest Essayist: Horace Cooper, Senior Fellow with the Heartland Institute
“…..no Warrants shall issue, but upon probable cause, supported by Oath or affirmation…”
Americans today take great pride in the accomplishments and brilliance of the drafters of the Constitution and the Bill of Rights. One of the things that this essay will demonstrate is that quite often the protections that we take for granted came about as a result of the prudence and wisdom of the founders and in particular their specific response to the challenges they were exposed to or aware of. Many Americans may not appreciate that this provision isn’t just pivotal, it is in some sense central to America’s claim to independence.
The 2nd clause of the 4th Amendment makes clear, magistrates and others allowed to issue warrants must not issue “general” warrants, but instead when court orders are issued, they must be precise and detailed. Warrants must specify descriptions of items demanded to be seized and judges must be convinced that there is probable cause to believe a crime has been committed.
As is the case with much of America’s legal system, British history is a good starting point to understand this provision.
Let’s start with the “Star Chamber” or camera stellata as it was called in Latin. It was sort of a super-appeals Court that held its meetings in the “Starred Chamber” of the Royal Court (a place initially created for meetings of the King’s Council in England.) Reports of its existence suggest it operated early as the 13th Century and sat at the royal Palace of Westminster until 1641.
Made up of royal advisors and judges, the so called “Star Chamber’s” primary responsibility was to address civil and criminal matters involving elites to ensure that the kingdom’s laws were enforced against the powerful and the prominent. Its sessions were held in secret. It made no pretense of operating under traditional court rules involving criminal or civil procedure. There was also no right of appeal, no juries and even no right to confront accusers or even for witnesses to testify. However perhaps more offensive than these predations was its authority to issue “general warrants.” These warrants were given to the sheriff or other local law enforcement officer and empowered them to retrieve items necessary to support the Star Chambers pre-ordained conclusions.
In other words, instead of saying that based on a signed statement by a witness, J. Smith was believed to hold in his home, item X, an illegal product, “general warrants” allowed the Sheriff to search all of J. Smith’s properties and seize any and all of his personal items without identifying any particular item. The seized items would be subsequently examined by the staff of the Star Chamber to see which if any could be used as evidence against J. Smith. The items typically weren’t returned and even when they were, they were often damaged or destroyed.
Over time the British recognized the inherent abuses associated with the operations of the Star Chamber. Finally, in 1640, the British Parliament adopted the Habeas Corpus Act and abolished the Star Chamber in 1641.
Unfortunately when making the decision to shut down the Star Chamber, the British Parliament hadn’t acted to eliminate the use of general warrants. Abuses involving general warrants would continue over another 100 years before British society generally would recognize the ills of its use in particular.
One of the most prominent cases of abuse of general warrants that the founders would have been familiar with was the fall out from the British government’s attempt to use general warrants against Englishman John Wilkes, publisher and political activist and critic of the Crown, in 1763.
Wilkes, a member of parliament, during Prime Minister George Grenville’s government, published “The North Briton” which mocked and criticized King George III and the Grenville administration. Using general warrants King George had Wilkes and nearly 50 of his associates arrested and charged with seditious libel. Not only were he and his associates arrested, their personal property, papers, and effects were seized. The abuses that occurred were obvious for all to see. As a Member of Parliament, Wilkes had immunity from these charges and while he was able to convince the Chief Justice to dismiss the case his troubles wouldn’t end. Within the next 5 years he’d be charged again and again. Notwithstanding these charges and subsequent expulsion from Parliament he would be re-elected 3 times.
Wilkes fled to France but eventually returned to England. Wilkes would subsequently be elected Mayor of London and get recognition for his efforts to support the rights of English citizens and his efforts contributed to the fall of the Grenville government. Wilkes’ ongoing arguments for Freedom of the Press, broader suffrage rights and religious toleration would ultimately find broad political support in England before his death.
But perhaps the greatest influence for the framers was the use of “general warrants” to enforce the infamous Townshend Acts of 1767. Passed by the British Parliament, the Townshend Acts was adopted purportedly to provide for the salaries of colonial appointees, but many colonialists suspected its primary if not total rationale was to establish the precedent that the British Parliament had the right to tax the colonies.
As part of its efforts to enforce this revenue act, the British Parliament created the American Board of Customs Commissioners and the commission leapt at the opportunity to use “general warrants” to deter smuggling and tax evasion. These warrants issued under the authority of the crown were particularly troublesome. They violated the colonial charters’ rules that warrants were legal only when they provide a reason and a basis for searches. Whereas Colonial warrants were limited in scope and time, the Commissioner’s general warrants had no time limits other than the life of the King and were transferable allowing one person holding the warrant to transfer his rights over to the other. Additionally, the warrant holder could search any person or property at any time. Writ holders essentially were laws unto themselves.
Massachusetts Assembly James Otis whose catchphrase is “Taxation without Representation is Tyranny” called the general warrants “the worst instrument of arbitrary power, the most destructive of English liberty, and the fundamental principles of law, that ever was found in an English law book.”
The new taxes proved to be quite unpopular and colonial appointees using the general warrants even more so. Ultimately those responsible for collections requested military assistance. The British sent the fifty-gun warship HMS Romney to Boston Harbor in May 1768 to enforce the law. Rather than quelling the situation, this dramatic escalation made matters worse. Starting with the Boston Massacre and the Boston Tea Party the gross abuse of general warrants and Townshend Acts would lead directly to the Declaration of Independence and the Revolution.
It is that framework which influenced the writers of the 4th amendment. Although far more jurisprudence is placed on the importance of the first clause of the 4th Amendment, for historians, the notion that government may not issue warrants to law enforcement officers without any justification or any particular limits to seize goods or people was a powerful enough issue that it was a key ingredient in the formation not only of a provision of the Bill of Rights, but the formation of an entire nation.
Horace Cooper is a senior fellow with the Heartland Institute and is a writer and legal commentator