Why The Federalists Designed The Fourth Amendment

The Federalists wrote the Fourth Amendment to weaken the Antifederalist Party--although The Anti-Federalists insisted on the importance of a bill of rights!

This article uses William J Cuddihy’s excellent historical reference titled The Fourth Amendment: Origins and Original Meaning 602-1791. This excellent reference was recommended by Daniel J. Solove. He is John Marshall Harlan Research Professor of Law, George Washington University Law School.

Solove points out this historical reference is used by US Supreme Court to review interpretations of the Fourth Amendment. For this reason Solove concludes it is indispensable to understand the origins of the US Fourth Amendment.

For those of you that have a university library account I strongly urge you to use that to purchase the book either at a discount or ideally for free as I did myself. Otherwise the Amazon affiliate link is the only other way to acquire the text.

The ideas now present in the Fourth Amendment developed over centuries. The idea that there must be protections against federal and state search and seizure did not arrive until 1787.

The Role of the Anti-Federalists

Prior to the Constitutional Convention state constitutions only protected against general warrants. During the Constitutional Convention several Anti-Federalists, people that were against a strong central federal government, argued for a federal bill of rights. The Anti-Federalists believed a bill of rights was necessary to protect civil liberties lest the federal government abused their powers. In refutation the Federalists argued the US Constitution only allowed certain, specific powers and thus the US Federal Government would be unable to exercise powers it had no constitutional right to.

The debates on whether a bill of rights was necessary between The Federalists and Anti-Federalists are what allowed concerns over unreasonable search and seizures to emerge. The most common Antifederalist arguments exploited the bans against general warrants in state constitutions. Without a bill of rights there were no official bans against general warrants.

Perhaps the best voice of those expressing concern against misuse of general warrants was Mercy Otis Warren, who argued the “daring experiment” of the issuance of the British Writs of Assistance called for the necessity of a bill of rights. Warren argued to ignore the colonists’ awful experiences with them would be an insult to the American Patriots who fought for American Independence. A lack of federal ban against general warrants invited insolent officers of the central government to search houses.

What Separated the Anti-Federalists from Colonists

Unlike the colonists that resisted general warrants the Anti-Federalists argued the federal government should deny warrants categorically.

The final four Constitutional Conventions led to the ratification of the Fourth Amendment.

A Virginian Anti-Federalist, Patrick Henry, argued on June 5, 1788, that the federal government’s misuse of general warrants would later allow them to allow milita to enter houses and cellars without warrant. Henry argued the US Constitution must have an explicit ban against general warrants just as the US Declaration of Independence did. Henry also argued that without a federal explicit ban against general warrants state bans against general warrants were futile.

Patrick Henry was successful in convincing The Federalists that a bill of rights was necessary. George Wythe, a leading Federalist, recommended constitutional amendments protecting juries and the rights of the conscience and the press. Henry later argued an additional protection against unreasonable searches and seizures was necessary.

The Virginia Convention approved the US Constitution but recommended a bill of rights to be added. Article Fourteen of the bill of rights proposed by the Virginia Convention. Below is Article Fourteen:

That every freeman has a right to be secure from all unreasonable searches and

seizures of his person, his papers, and property; all warrants, therefore, to search

suspected places, or seize any freeman, his papers, or property, without information

on oath (or affirmation of a person religiously scrupulous of taking an oath) of legal

and sufficient cause, are grievous and oppressive; and all general warrants to search

suspected places, or to apprehend any suspected person, without specially naming

or describing the place or person, are dangerous and ought not to be granted.

Three remaining three state conventions New York, Rhode Island, and North Carolina (accepting Virginia’s proposal verbatim) followed Virginia’s lead in recommending such a protection against unreasonable search and seizure.

The Press Boosts Public Support Against General Warrants in US Constitution

Following the declaration of state conventions for a bill of rights against general search and seizure the press announced such decisions in newsletters and other publications.

Thanks to the writings and speeches of people like the Anti-Federalists searches and seizures arose a serious concern amongst seven of the state conventions considering the US Constitution for ratification. Most delegates wanted a complete guarantee against all types of unreasonable search and seizure. The criticism against general warrants by Anti-Federalists at the Pennsylvania Convention was published in a dozen pamphlets and newspapers. The Maryland Anti-Federalists were most successful in spreading dissent against general warrants.

The press not only both intensified and reflected an intensification of interest against general warrants. Between September 1787-September 1788, a time during which the Constitutional Conventions took place, about as many official and personal protests against abusive government searches had appeared in print as had in the entire decade before the US revolution and several times more since the US Revolution.

The debates on unreasonable searches and seizures made general warrants not the only kind of unreasonable search. They added desires for bans against general excise searches and search warrants issued without ground.

Such debates determined the Fourth Amendment’s contents.

The Federalists React to Demands Against Unreasonable Searches and Seizures

James Madison, a key author of the US Constitution, informed the US House of Representatives on May 4, 1789 that he wished to include a bill of rights. Originally the House did not pay much attention. But by June 8, 1789 Madison presented the first rough draft of the US Fourth Amendment:

The rights of the people to be secured in their persons, their houses, their papers, and

their other property from all unreasonable searches and seizures, shall not be violated by

warrants issued without probable cause, supported by oath or affirmation, or not par-

ticularly descr[i]bing the places to be searched, or the persons or things to be seized. — James Madison, Fourth Amendment of the United States

In the next article I will discuss the revisions and considerations the Fourth Amendment went through until ratification.