The Fourth Amendment, Boston, and the Writs of Assistance

Abstract

The relationship between Boston and the Fourth Amendment is vexing. Many judges and scholars have claimed, or assumed, that the Amendment was with the now-famous 1761 Boston writs-of assistance case, argued by the great Boston lawyer James Otis, centrally in mind. And yet, as I have noted elsewhere, one finds remarkably little mention of this case in debates over the ratification of the Federal Constitution and the drafting of the Bill of Rights. The vexed question about the link (or lack thereof) between this city and that Amendment in tum connects up to other vexed questions about the Amendment. On the "rights" side, does the Amendment create or presuppose a warrant requirement- a rule that all (or almost all) searches and seizures be preceded by warrants? Must all searches or seizures be justified by "probable cause," whatever that means? (By the way, what does "probable cause" mean?) And on the "remedy" side, does the Amendment require or presuppose the so-called exclusionary rule, which demands that evidence obtained in violation of the Amendment be suppressed in criminal cases? These are questions close to my heart, questions that I have publicly spoken on here in this city (in historic Faneuil Hall) and written about in a law review headquartered just on the other side of the Charles. But they are questions that I would like to revisit. No place seems better than this place-this special place-to do so. And, with your indulgence, no time seems better than now.