Student Review:

      In this article, Maclin points to the problem raised by the Fourth Amendment.  On one hand, the Fourth Amendment protects every individual's right to be free from government intrusion.  And yet, those who bring Fourth Amendment claims are often criminals.  Currently, the Supreme Court interprets the central meaning of the Fourth Amendment as reasonableness.  As long as police act reasonably in search and seizures, the Fourth Amendment is satisfied.  The Court has used the language and the history of the Fourth Amendment to establish that warrants are not needed for every search and seizure.  Maclin discusses both the text and historical background of the Fourth Amendment in order to question the Court's current model, and finds that rather than reasonableness, the central meaning of the Fourth Amendment is distrust of police power and discretion.
      One side of the debate on the Fourth Amendment sees the amendment as having two separate clauses.  The Reasonableness Clause protects against unreasonable searches and seizures, and the Warrant Clause specifies how warrants shall be issued.  This rational basis model of the Fourth Amendment maintains that a warrant is not required to protect against unreasonable searches.  This model, supported by Chief Justice Rehnquist, is currently the dominating model of the Supreme Court.  On the other side, those who read the Fourth Amendment as establishing a warrant preference rule contend that the Warrant Clause is tied to the first clause, and a valid warrant is needed to protect against unreasonable searches.
      Although much current analysis has linked the text and the history of the Fourth Amendment to the rational basis model, Maclin reexamines these avenues to demonstrate that this conclusion is not authoritative.  First, Maclin looks at the text of the amendment and demonstrates that the precise language of the Fourth Amendment was not a critical consideration for the founders.  A last minute change to the amendment escaped the notice of both Congress and the state conventions.  Furthermore, a reliance on the common law of the founders is also misguided, since the founders opposed the tenets of  English common law.
      Maclin next discusses the claim that the framers of the Constitution were not concerned with warrantless searches, but rather broad searches with unspecific warrants.  Maclin mentions that before the concern over ex officio searches (broad warrants for searches without specific cause), the colonists also resisted warrantless searches by British custom officers culminating in the Writs of Assistance Case of 1761.  Thus, Maclin asserts that colonists were not unconcerned about warrantless searches.  Scholars also assert that the colonist viewed judges and warrants as oppressive forces.  Maclin points out that many state courts refused to issue writs of assistance, demonstrating that not all judges aided in expanding the search powers of government officials.
      Instead of relying on narrow interpretations of history and the text of the Fourth Amendment, Maclin asserts that the Court should realize the principle behind the Fourth Amendment is a distrust of police power and discretion.  Maclin analyzes how the Court's current rational basis model that allows warrantless searches of closed containers values police power more than personal privacy.  Rather than allowing broad discretion to police decisions, the Court should allow Fourth Amendment claims the same critical judicial review as other constitutional provisions.  The beginning step to using the court to correctly analyze police intrusions is recognizing that distrust of police power is the central meaning of the Fourth Amendment.

Article Summary by: Corrie Noir
Wake Forest University School of Law 1999