“even their menial servants are allowed to lord it over us”

Julian Sanchez has a great post up about class and the Fourth Amendment. He starts by tracing the somewhat aristocratic sentiments lurking behind the right to be free of unreasonable search and seizure and the warrant requirement:

An editorial in The Monitor alleged that general warrants “empower mean, Low-lif’d ignorant men to enter, and to act at discretion.” Maryland’s “Farmer and Planter” was outraged that discretionary search powers would be granted excise officers, who were drawn from the “scruf and refuse of mankind.” The “Father of Candor” sniffed at the notion that “any common fellow” might presume to search a home on the basis of gossip from his (presumably similarly “common”) acquaintances. A writer styling himself “Freeman” asked rhetorically: “What are the pleasures of the social table, the enlivening countenances of our family and neighbors in the fire circle or any domestic enjoyment if not only Custom House Officers but their very servants may break in upon and disturb them?”

Sanchez then notes that the class implications of search have actually flipped, which may be causing us to lessen our grip on the Constitution’s guarantee that we will be secure in our persons, houses, papers, and effects:

In Colonial America, recall, policing was largely carried out by amateurs and part-timers, along with such volunteers as they might deputize to help carry out a search. These days they’re professionals, often college graduates, who wear suits to court and often appear before the same judge regularly.

The general searches that so incensed Bostonians were meant to aid in the collection of excise taxes, which meant their targets were often respectable merchants and businessmen. Drug dealers are a primary targets of searches today—fully 85 percent of wiretaps are sought for narcotics investigations—which means, innocent or guilty, they’re seldom folks from a social class that naturally inspires judges to identify with them….

Perhaps it’s no surprise, then, that courts often seem to bend over backwards looking for ways to accommodate police and other government officials, explicitly assuming—utterly contrary to the spirit of the Fourth Amendment—that these upstanding professionals can and must be routinely trusted with substantial individual discretion over who, how, and when to search.

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