Tuesday, January 21, 2014

State Capacities and the Fourth Amendment

Mark Graber

Lord Chief Justice Camden in Entick v. Carrington (1765) famously declared, “By the laws of England, every invasion of private property, be it ever so minute, is a trespass.”  Whether these laws were of ancient lineage is doubtful.  English law in the seventeenth century permitted local officials to enter private dwellings when searching for illegal game.  No doubt a good common law attorney can find distinctions between what were deemed illegal searches during the late eighteenth century and what were deemed legal searches during the seventeenth century.  Nevertheless, developments in state capacity probably better explain the origins of the Fourth Amendment than practice dating from the Magna Carta, the Assize of Clarendon, the Norman invasion or some other event marking the beginning of “time immemorial.”

During the eighteenth century, England developed a state bureaucracy.  With this bureaucracy came a dramatic expansion of state capacity to search, seize, and, most important, see.  Governing officials in the seventeenth century had to rely on a local justice of the peace who, as one person, had very limited investigatory capacity and, as a local notable, often had even more limited interest in pleasing the powers to be in London.  By comparison, by the time of the American Revolution, England had a civil service full of young men willing to investigate alleged crimes against the king and even more willing to please their parliamentary and cabinet overseers.  The English political fights that led to such celebrated (at least in the colonies) landmark common law cases as Entick and Wilkes v. Wood (1763) were as much over the constitutional status of this increased state capacity to search, seize, and see, as over the sacred status of private property.

Increases in state capacity to search, seize and see generate pressures to limit as well as expand pre-existing rights.  American constitutional practice adjusted as communities began to rely more and more on professional police forces to investigate crime.  At common law, persons were liable for false arrest whenever they detained a person they erroneously thought had committed a crime.  During the Jacksonian Era, Rohan v. Sawin (MA 1850) and other state court decisions held that government officials had an immunity from lawsuit by innocent citizens if the official had probable cause to make a warrantless arrest.  Again, developments in state capacity to fight crime (and the capacity of criminals to commit crimes) probably had more to do with the development of probable cause under the Fourth Amendment then the precise common law standard when state bills of rights were ratified or common law practice as described in dusty English texts.

Entick v. Carrington and Rohan v. Sawin suggest that history is a better source for clarifying questions about the national surveillance state than the means by which we can determine as a constitutional or policy matter what surveillance techniques the government can or cannot adopt.  Increases in state capacity to search, seize and see inevitably alter what constitutes a right and what constitutes reasonable government activity.  When state capacities change, preexisting notions of reasonableness became outdated.  Surveillance practices that seem reasonable in a society in which only one person in every county is authorized to conduct searches may seem unreasonable in a society in which more people in most counties are employed by the government than in any particular business (for a contemporary version of this point, see the wonderful article David Gray and Danielle Citron published in 98 Minnesota Law Review, "The Right to Quantitative Privacy").  For similar reasons, limits on surveillance practices that seem reasonable when criminals flee crimes on foot may seem unreasonable when criminals flee crimes in cars or need never leave their home office to commit identity theft.  What history can teach us is that constitutional practice inevitably adjusts to dramatic changes in state capacity to search, seize and see, but that such landmark decisions as Entick  and Rohan are better describing as constituting what is considered reasonable uses of new state capacities than as straightforward applications of rules designed for other times and places.

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