Morgan Cloud

The Fourth Amendment During the Lochner Era: Privacy, Property, and Liberty in Constitutional Theory

In this article, Professor Morgan Cloud proposes a surprising remedy for a Fourth Amendment jurisprudence he criticizes as lacking a unifying theory and failing to preserve the rights guaranteed by the Amendment. Professor Clouds solution is a return to the theories espoused by the Supreme Court during the infamous Lochner era of the early twentieth century. He calls for a merging of the formalist and pragmatist theories of that period into an interpretive theory of the Fourth Amendment and suggests a rededication to the Amendments Warrant Clause. Such a theory avoids the pitfalls of literalism and judicially determined social policy, while protecting the basic purposes of the Amendment to protect individual liberty, privacy, and property and to prevent unjustified government intrusions.

Searching through History; Searching for History

t Professor of Law, Emory University. I thank Harold Berman, Tracey Maclin, Polly Price, and John Witte for their comments, criticisms and suggestions. David Krugler provided valuable research assistance, as did Holiday Osborne of the Emory University Law Library. 1 Unpublished Ph.D. dissertation. It is available in book form from UMI Dissertation Services, 300 N. Zeeb Road, Ann Arbor, Michigan 48106. UMI is an information resource with which many lawyers may be unfamiliar. UMI reproduces doctoral dissertations and masters theses from the microfilm masters of the original documents. The copies are produced in book form. UMI reports that it holds the full text of all doctoral dissertations accepted in the United States since 1970, and abstracts of all dissertations accepted since 1900. A database of UMI holdings, called Dissertation Abstracts, is available on CD-ROM and is held by many university libraries. 2 H. Butterfield, The Whig Interpretation of History 97 (Bell 1968). 3 For at least a century, lawyers, judges, and legal scholars have employed history to explain the meaning of the Fourth Amendment. See, for example, Boyd v United States, 116 US 616 (1886); Joseph Story, 3 Commentaries on the Constitution of the United States ? 1895 at 748-50 (Da Capo 1970); Andrew Alexander Bruce, Arbitrary Searches and Seizures As Applied to Modern Industry, 18 Green Bag 273 (1906).