One of the most fundamental aspects of the constitutional right of privacy—that embodied in the Fourth Amendment protection against unreasonable searches and seizures—was born as a constitutional remedy for a legacy of the evils of one aspect of British law, the general warrant. As early as 1335, in Britain the general warrant permitted government to search without limitation on location and without having to describe with any specificity the person or object sought. Instead, British authorities were given free reign to break into any shop or place, wherever and whenever they chose.
Such a powerful tool could be and was employed often to intimidate. During the reign of Charles I, general warrants were employed to harass dissidents, authors, and printers of what was considered seditious material by ransacking homes and seizing personal papers. By 1765, British courts declared general warrants unlawful, and Parliament followed suit a year later.
Through their government of the colonies, royal officials threatened the privacy of the colonists by employing writs of assistance, equivalent to general warrants. At the time, English law did not recognize a personal right of privacy, leaving the colonists’ complaints of royal abuses without a legal remedy. The Virginia Declaration of Rights declared that general warrants were ‘‘grievous and oppressive,’’ and colonial leaders shared the growing antipathy toward their abuse. This particular form of governmental overreaching was fresh in the minds of the delegates to the constitutional convention in Philadelphia in 1787.
WILLIAM C. BANKS
References and Further Reading
- Banks, William C., and M. E. Bowman, Executive Authority for National Security Surveillance, American University Law Review 50 (2001): 2–3.
- Cuddihy, William, and B. Carmon Hardy, A Man’s House Was Not His Castle: Origins of the Fourth Amendment to the United States Constitution, The William and Mary Quarterly 37 (1980): 371–400.
- Fribourg, Marjorie. The Bill of Rights: Its Impact on the American People. 1967.
- Lasson, Nelson B. The History and Development of the Fourth Amendment to the United States Constitution. Baltimore, MD: Johns Hopkins Press, 1970.
- O’Brien, David. Privacy, Law and Public Policy. New York: Praeger Publishers, 1979.
Cases and Statutes Cited
- Entrick v. Carrington, 95 Eng. Rep. 807, 818 (K.B. 1765)