The Incredible Shrinking Fourth Amendment —The Ongoing Erosion of the Fourth Amendment of the Constitution of the United States of America

Abstract

During the Prohibition era, the US Supreme Court, “the court” radically deviated from the plain meaning of the Fourth Amendment and precedential authority. The object of this essay is to show that the “trespass” doctrine adopted in this period, was in fact a Prohibition law enforcement doctrine, which took only those parts of the common law that accorded with the court’s recasting of the balance set in the Fourth Amendment. This unprincipled approach construed the Amendment to allow wiretaps, when there was increasing public concern over this expansion of police power. This eventually led to the replacement of the “trespass” doctrine with the privacy doctrine, in Katz v. United States (1967). However, the focus on personal privacy counter-poses a weak value, to the strong value of effective law enforcement, as it pits a personal interest against a public interest. What is lost is the public interest in preventing the expansion of state power, under the veil of law enforcement. It is the central thesis of this work that both the “trespass” doctrine and the privacy doctrine have weakened Fourth Amendment protections and in part, have resulted in a law enforcement culture which is to an extent now out of control. The methodology employed to substantiate this thesis is a close analysis of the central cases, placed within a chronological context.