![]() In the presence of their solicitor, Arthur Beardmore, the men launched a weekly essay paper, The Monitor, “to commend good men and good measures, and to censure bad ones.” 62 The rebellious nature of the enterprise could hardly be ignored. John Entick, self-styled reverend and sometime English schoolmaster, met political satirist John Shebbeare and publisher Jonathan Scott in The Horn Tavern at the junction of Little Knightrider and Sermon Lane, London. In 1755, the seeds of the first controversy were sown. The stories behind the cases illustrate why English jurists and scholars rejected such instruments. Three influential cases laid the groundwork for the Founders’ rejection of general warrants: Entick v Carrington 58 in 1765, Wilkes v Wood 59 in 1763, and Leach v Money 60 in 1765. English Cases Prohibiting General Warrants It was not that the Crown never tried to evade the warrant requirement-it was that common-law principles did not allow it. ![]() 56Įfforts to get around the rule by drafting warrants broadly to allow for indiscriminate search and seizure were met with objection. Seventeenth- and eighteenth-century legal treatises embraced the position that, outside of certain circumstances, the Crown could not intrude on the sanctity of the home without a warrant. Reclaiming this meaning is essential for understanding the scope of the original Fourth Amendment and for ensuring a doctrine that reflects fidelity to the founding principles. It contradicts the meaning of the text itself, which carefully lays out the conditions that must be met before the government may intrude. Scholars’ insistence that the Fourth Amendment does not entail a general protection against government entry into the home without a warrant does more than just fail to appreciate the context. Outside of such circumstances, search and seizure required government officials to approach a magistrate and, under oath, to provide evidence of the suspected offense and to particularly describe the place to be searched and persons or things to be seized. Consistent with English common law, the notable exception was when law enforcement or citizens were pursuing a known felon. At the time it was adopted, the Fourth Amendment prohibited the government from entering into any home, warehouse, or place of business against the owner’s wishes to search for or to seize persons, papers, or effects, absent a specific warrant. The meaning of the rights enshrined in the Constitution provides a critical baseline for understanding the limits of government action-perhaps nowhere more so than in regard to the Fourth Amendment. The editors at The University of Chicago Law Review dedicated time and effort to ensuring the quality of the final Article. Betsy Kuhn copyedited the penultimate text, which is reflected in part in chapters four and five of my recently published book, The Future of Foreign Intelligence: Security and Privacy in a Digital Age (Oxford 2016). Jeremy McCabe, Thanh Nguyen, Ellen Noble, and Morgan Stoddard kindly assisted in helping to obtain many materials. My appreciation extends to participants at the Georgetown Law faculty workshop, Georgetown Law’s Constitutional Law Seminar, the 2015 Berkeley-GW 8th Annual Privacy Law Scholars Conference, the Washington, DC National Security Law Roundtable, and the Retired Partners Group at Arnold & Porter LLP for their critiques. Ladislas Orsy kindly helped to verify the meaning of the original Latin texts. Special thanks to Randy Barnett, Morgan Cloud, Julie Cohen, William Cuddihy, Jennifer Daskal, Thomas Davies, Daniel Ernst, Erin Kidwell, Martin Lederman, John Mikhail, Paul Ohm, James Oldham, Julie O’Sullivan, Michel Paradis, Brad Snyder, Geoff Stone, William Treanor, and Peter Winn, who provided thoughtful comments on earlier versions of the Article.
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