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.