Against that 'powerful engine of despotism': The Fourth Amendment and general warrants at the founding and today

In this dissertation, I argue that the original understanding of the Fourth Amendment differentiated between searches on property and searches in public areas, generally requiring warrants to search property, while allowing warrantless searches in public areas if there was cause for the search. However, in the twentieth century this intent has been subverted. The government has weakened protections against searches of property, specifically commercial property, while expanding protections against searches in public areas.; This development arises from a change in the conception of justice among many political and legal thinkers. In the twentieth century these thinkers saw a need for an administrative state to control and regulate a huge economy that seemed to benefit only the wealthy.; The idea that government must increase the regulation of business led to a change in the judiciary's (and other government agencies) approach to commercial searches. The public interest, as defined by government agencies, began to take preference over businessmen's Fourth Amendment rights. So, for example, we got the administrative warrant, which is a warrant that does not require probable cause.; In the case of searches in public areas, the judiciary in the twentieth century has applied a much stricter standard than the Founding generation. The modern judiciary, with some retreat in the 1990's, has required warrants to search in public areas, while early jurists required only probable cause. This development is also due to a changed conception of justice, in which the modern judiciary has embraced a notion of liberty that emphasizes freedom divorced from morality. Furthermore, criminals come to be seen as the victims of society, in need of protection from the judiciary and other elites.; I argue that the Founder's understanding of justice and the importance of protecting property rights serve society better than the modern understanding of justice and our Fourth Amendment jurisprudence would be more just if we returned to the original understanding.