Lori Falce: Constitution Under Construction: Privacy and probable cause

Source Domain: triblive.com

The adage that a man’s home is his castle isn’t about authority. It’s about protection — the walls that keep others out.

But even strong walls need a door.

We understand that instinctively. Police need a warrant.

But that shorthand doesn’t quite capture what the Constitution actually does.

The Fourth Amendment doesn’t depend on whether you lock the door. It requires the government to have a key.

The Fourth Amendment addresses both:

The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated,and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.

It secures the lock — and defines the key.

The Fourth Amendment has spent more time in court than most, because its text demands it every time the government acts.

That isn’t an accident. It’s exactly the point.

Like other parts of the Bill of Rights, this sistered right and responsibility — two pieces joined to make something stronger — exists for a reason. The colonies had already seen what happened without it.

Under British rule, general warrants gave officials broad authority to search almost anything without limits or justification.

“You could think of a general warrant as a kind of blank check for the government official who is executing the warrant,” said Joshua Windham, a senior attorney with the Institute for Justice.

There was no independent check — the same people authorizing the searches were often the ones carrying them out.

The Fourth Amendment doesn’t just grant the right to defend your space. It doesn’t hand the keys to the government, either. It recognizes that both have a role — and that it takes a third party to weigh the argument and decide whether the door can be opened.

For the…

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