Sep 112010
 September 11, 2010  Posted by  Court, Surveillance

Alex Harris writes:

Up until I began doing my reading for this fall’s Criminal Procedure: Investigation course, I largely bought the heroic Warren Court story of privacy and the Fourth Amendment.

The story is simple: The Supreme Court, concerned only with helping businesses through decisions like Lochner, had left people unprotected from warrantless searches and seizures. In decisions like Olmstead v. United States (holding that a warrantless wiretap did not violate the Fourth Amendment), the Court threw privacy under the bus. But, as with the First Amendment, Brandeis and Holmes dissented, presaging the arrival of the glorious Warren Court, which overturned Olmstead in Katz v. United States.

Though, unlike many FedSocers, I love the Warren Court and its expansion and constitutionalization of personal liberties both procedural and substantive, the heroic story just isn’t quite right.

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