The Fourth Amendment is fundamental and paramount law protecting the security of our
persons, houses, papers, and effects against unlawful government trespasses. But how did it come to be construed as protecting a right of privacy? The Fourth Amendment, properly understood, protects natural rights. Here is Part 4 of this series on its original meaning and purposes.
“The common good, therefore, is the end of civil government, and common consent, the foundation on which it is established. To effect this end, it was necessary that a certain portion of natural liberty should be surrendered, in order, that what remained should be preserved . . . . But it is not necessary, for this purpose, that individuals should relinquish all their natural rights . . . . To surrender them, would counteract the very end of government, to wit, the common good.” ~ Brutus, Essay 2, Rights, 1787.
In his much-quoted pre-New Deal dissent in Olmstead v. United States, Justice Louis Brandeis notes the broader objective of the Fourth Amendment is “secur[ing] conditions favorable to” natural rights, even suggesting, “as against the Government, the right to be let alone . . . [which is] the right most valued by civilized men.” About the Amendment’s purposes, he writes:
The protection guaranteed by the [Fourth and Fifth] Amendments is much broader in scope. The makers of our Constitution undertook to secure conditions favorable to the pursuit of happiness. They recognized the significance of man’s spiritual nature, of his feelings, and of his intellect. They knew that only a part of the pain, pleasure and satisfactions of life are to be found in material things. They sought to protect Americans in their beliefs, their thoughts, their emotions and their sensations. They conferred, as against the Government, the right to be let alone — the most comprehensive of rights, and the right most valued by civilized men. To protect that right, every unjustifiable intrusion by the Government upon the privacy of the individual, whatever the means employed, must be deemed a violation of the Fourth Amendment.
Brandeis expressed the self-evident notion of a constitutional fabric of liberty referenced in Part 3 of this series whereby rights identified in our first ten Amendments often act as mutual buttresses of the other respective rights, including natural rights known to the Founders. As Professor Robert George wrote in a 2001 Fordham Law Review article, “I agree with [Professor Edward] Corwin and his followers that the fabric and theory of our Constitution embodies our founders’ belief in natural law and natural rights.”
In protecting people and property from government trespass against four expressly identified objects, the Fourth Amendment acts as a shield for other constitutionally protected liberties. Thomas Jefferson’s conversion of John Locke’s expression of protection of property into the “pursuit of happiness” is an improved articulation of the fact that there is a correlation between the right of security in “our stuff” (as George Carlin would say) and our other natural rights understood by the Founders.
Brandeis keenly acknowledged the Fourth Amendment’s larger role: It guards, fortifies, enhances, and succors natural rights such as the pursuit of happiness, our beliefs, and our spiritual nature, which as part of the constitutional fabric of liberty intertwine with, and rely on, the right of security in the four objects expressly protected by the Amendment.
The word “privacy” is nowhere found in the Bill of Rights, yet courts, scholars, and even legislatures have discerned that an expectation of it is within the core ambit of the Fourth Amendment’s purposes. To deny that natural rights are within the constitutional fabric of liberty protected by the Fourth Amendment, therefore, would be to deny the Amendment’s protections of an expectation of privacy.
John Locke and James Madison shared a view of natural law in that government is instituted to protect property. Locke wrote that we have a “property” (i.e., private dominion) in various things including our bodies, our labor, and the work of our hands. Madison wrote that “a man has a property in his opinions and the free communication of them. He has a property of peculiar value in his religious opinions, and in the profession and practice dictated by them.”
Madison also wrote that “[c]onscience is the most sacred of all property.” In his Memorial and Remonstrance Against Religious Assessments of June 20, 1785 Madison noted the tendency of the majority “to trespass on the rights of the minority,” expressing a concept of trespass broader than mere physical invasion, and noting the role of the separation of powers in protecting those rights.
We can wonder or merely infer whether Locke and Madison believed that we have a property in our privacy or right to be let alone. Still, the cabin of the most isolated hermit clearly may be searched upon issuance of a lawful warrant, and without inconsistency of its language or principles, a vendor in Times Square is protected by the Fourth Amendment.
The Fourth Amendment’s express protection of a right in the security of four objects seems, therefore, to comprehend the bigger picture of liberty held by the Founders. Unlawful government trespass on papers, which are the typical target of administrative subpoenas, have an adverse domino effect on our other natural rights, whether by actual invasion or mere intimidation. One might hesitate calling an attorney general or regulator a corrupt jerk in a private email if it may be subpoenaed unilaterally by this official. The fear of unreasonable searches therefore may have a chilling effect on rights.
Our personal and business papers frequently contain private expressions of conscience, intellect, opinions, and even grudges. Often they are integral to our livelihoods and activities that may be dictated by our beliefs and spiritual nature. They may show our relative wealth or poverty, our proprietary information, our vulnerabilities, our advantages over competitors or adversaries, and our confidential plans to improve our circumstances. And with guidance from Locke not Marx, they certainly contain the labors of our intellects. These private papers may include candid expressions of displeasure with political, judicial, or private individuals. None of these are the government’s business absent the probable cause and ex ante protocols to justify their disgorgement and examination. Their privacy and all the natural rights they comprehend are intertwined with a right of security of property.
Writing in 1765 about a search in a commercial setting, Chief Justice Charles Pratt said, “Papers are the owner’s . . . dearest property” precisely because of their “secret nature.” Under natural law what we own and possess, and to which we have exclusive rights of dominion and control are private unless we disclose them. Trespass on our personal or commercial papers is disruptive and damaging to our right of privacy.
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The Right of the People to be secure in their persons, houses, papers and effects