Common Law Origin of the Jourth Amendment

As is the case with the majority of the legal pronouncements that comprise the Bill of Rights, the Fourth Amendment is based on the English common law that was extant in England in the 1600s and 1700s. In fact, the Fourth Amendment was directly inspired by three British legal cases – two of which were adjudicated in England and one that was tried in the American colonies in the 1760s.

The two cases tried in England, Wilkes v. Wood (1763) and Entick v. Carrington (1765), were both concerning the same issue where the two men were charged with “seditious libel” for negatively critiquing the king's ministers and therefore, by extension, they were accused of criticizing the king himself. The two men were distributing written declarations against the policies of the Crown and were therefore subjected to the king’s authority to issue a warrant that permitted the king’s agents to ransack the homes of the accused looking for and confiscating any and all written materials they could find.

After their homes were ransacked, Wilkes and Entick sued for damages in the British civil court -- claiming that it was wholly improper for the Crown’s agents to have forcibly gained entry to their homes as well as improper for the crown’s agents to have confiscated all their written possessions.

The judge assigned to the case, Lord Camden, agreed with Wilkes and Entick and declared that both the warrant and the actions of the King’s agents were in fact improper based principally on the fact that: (1) the warrants were issued to seize all of their papers rather than specifically the papers that may be considered relevant to the accusations and; (2) the warrants were issued without a reasonable cause. In the colonies, the victories of Wilkes and Entick were greeted as landmark blows for liberty and independence -- and Lord Camden was lionized (with a number of towns and cities being named after the judge for his heroic and lauded decisions).

The case that took place in the American colonies involved what was referred to as a “Writ of Assistance”. A writ of assistance gave British customs officers the right to search anywhere they believed that smuggling may be taking place as well as to compel private citizens to assist them in their efforts (which is where the term writ of “assistance” came from).

A colonial by the name of James Otis and a group of other merchants sued in an attempt to have the writs declared in conflict with English constitutionalism. Although James Otis and the other merchants lost, the argument Otis put forward established an indelible concept of a right to privacy which was clearly reflected in the later writings of the Fourth Amendment. Today, legal scholars commonly concur that the Fourth Amendment was based on the construct of affirming the decisions made in Wilkes and Entick, and with the intention of overturning the decision made in the James Otis Writs of Assistance Case.

The three key legal elements developed by these three cases that are reflected in the Fourth Amendment are: (1) that the government should show probable cause before authorizing a search; (2) that searches should be limited to the evidence that would support the accusations and: (3) that the concept of issuing a blanket warrant should not be used to circumvent the first two principles.

References Ducat, C. R. & Chase, H.W. (Eds) (1992). Constitutional Interpretation (5th Ed.). Eagan, MN: West Publishing Company. Lasson, N. B. (1937). The History and Development of the Fourth Amendment to the United States Constitution. Baltimore, MD: Johns Hopkins University Press. Sklansky, D.A. (2000). The Fourth Amendment and Common Law. University of California, Berkeley - School of Law. Columbia Law Review, Vol. 100.