(Episode 19) The "Wrist" of Assistance: The Fourth Amendment (Part 2 of 2)
As with most of the topics we cover, we end up asking a lot of questions and trudging through some murky answers. It's important to keep in mind that the goal of policing in America has changed from the Founding to now. Whereas the goal used to be reactive (you catch criminals who have already done something or whom you think have done something), it's now proactive (you want to deter people from breaking the law in the first place). That makes a different in the approach to the Fourth Amendment and to warrants.
We have a lot of questions surrounding the Warrant Clause, and we try to answer some of them. As a threshold matter, what does a warrant have to do? It needs to be supported by a sworn statement and establish probable cause. It also needs to describe where the cops are going and what they're looking for. But that raises even more questions: What is probable cause, anyway? How specific does the description need to be? Is a warrant always required? And was Jay-Z right in "99 Problems" when he said the cops would need a warrant for the glove compartment and trunk?
As technology changes, the Fourth Amendment changes, too. In the Founding period, the Fourth Amendment covered physical spaces and physical items, but it couldn't possible have contemplated cell phones and cell data. What would the Founders say? And, at the end of the day, what will SCOTUS suggest? Keep an eye out for SCOTUS's decision in the pending case Carpenter v. United States to find out.
One last note: as we end Season 2, we want to thank you for sticking with us, for being curious, and for being interested in civic education right along with us. We accomplished quite a bit in terms of the text of the Constitution itself, and we got a good start on the Bill of Rights. We're already excited to come back in Season 3 with an updated look, updated information, and even more fun.
Some additional nerd reads:
-An amicus brief in Carpenter, and the oral argument transcript;
-Some to-the-point examples of Fourth Amendment case law
-The lyrics to "99 Problems"
-More on when a warrant is required