The lost "effects" of the Fourth Amendment: giving personal property due protection.

• Author: Brady, Maureen E.
• Position: Continuation of II. The Founding Era History of Effects through Conclusion, with footnotes, p. 981-1017

1. The Constitutional History of Effects

   Effects wound their way into the constitutional text through the Bill of Rights, but the textual history surrounding the inclusion of the word "effects" has rarely been discussed. (156) This Section accordingly reviews the textual history of effects, beginning with the state constitutional protections that predated the federal Constitution, proceeding through the proposals from state ratifying conventions, and concluding with the revisions at the federal level that led to the protection for effects as it now stands. Though this Article does not take the position that this history is determinative of the scope of protection, the Court has found the history behind Fourth Amendment protections persuasive in fashioning rules for persons and houses. (157) Thus, this

   Article tells the story behind "effects" to marshal historical support for broader protections of personal property, in addition to the functional and doctrinal support for such an intervention.

   The Framers used the word "effects" in the Fourth Amendment with guidance from state-level sources. Four state constitutional provisions preceding the Bill of Rights included specific protections for personal property. The first state constitution to reference possessions came from Pennsylvania. (158) It provided "[t]hat the people have a right to hold themselves, their houses, papers, and possessions free from search or seizure." (159) Vermont adopted this section--embodying the houses-papers-possessions construct--verbatim, (160) and both Massachusetts and New Hampshire used very similar formulas. (161) In addition to these four state constitutional provisions, members of state ratifying conventions from six states recommended that the Federal Constitution include specific protection for personal property. The minority share of members from Maryland, (162) Massachusetts, (163) and Pennsylvania (164) and the majority share of members from New York, (165) North Carolina, (166) and Virginia (167) each suggested that the Constitution include provisions guaranteeing freemen the right to be secure in their property or "possessions" from unreasonable searches and seizures.

   From the state proposals, these propositions for protection of items made their way into the federal Constitution through the Bill of Rights. The history of the passage of the Bill of Rights is well-trodden territory. (168) It suffices to say here that the Constitution as ratified by several states did not originally include the Bill of Rights, though "Anti-Federalists" in other states--fearful of a powerful centralized federal government-were able to hold up ratification until conciliatory amendments were on the table, including one covering search and seizure. James Madison's proposal on June 8, 1789, for what eventually became the Fourth Amendment, tracked the proposals made by the six aforementioned state ratifying conventions, as well as the extant provisions of the four state constitutions. Madison proposed that "[t]he rights of the people to be secured in their persons; their houses, their papers, and their other property, from all unreasonable searches and seizures, shall not be violated...." (169)

   The Committee of Eleven-a committee made up of a delegate from each state that had already ratified the Constitution--reviewed this proposal, struck "their other property," and replaced it with the word "effects." (170) This left the Fourth Amendment in substantially its present form: "The right of the people to be secure in their person, houses, papers and effects, shall not be violated.... From the Committee of Eleven on, no further proposals were made to change the personal-property phrasing of the Amendment before the Bill of Rights was ultimately adopted. (172)

   The selection of the term "effects" is curious. No state constitution included the word, nor did any of the proposals from state-convention members. Indeed, the first and only source to use the word before its inclusion in the Federal Constitution was the anti-Federalist publication Federal Farmer, which included the phrase in a letter printed in 1787:

   The following, I think, will be allowed to be unalienable or fundamental rights in the United States: ... No man is held to answer a crime charged upon him till it be substantially described to him; and he is subject to no unreasonable searches or seizures of his person, papers or effects.... (173) Apart from the Constitution itself, no other source before or after this letter used the word "effects" in this context. Indeed, a far greater number of anti-Federalist commentators used either "possessions" or "property" as parallels to "persons" and "papers" around the same time. (174)

   Though no record of the reason for the change from "property" to "effects" in the Committee of Eleven exists, later readers generally agree that the consequence was to narrow the Amendment's coverage. (175) While "other property" could have encompassed other real property, dictionaries from the period indicate that "effects" was synonymous with personal property: possessions other than buildings and land. Each of the ordinary dictionaries cited by the modern Court as authority for the original meaning of the Constitution defines "effects" to mean chattels or possessions. Noah Webster's 1828 dictionary defines "effects" as "goods; movables; personal estate" (176) and provides the following example sentence: "The people escaped from the town with their effects." (177) Apart from ordinary dictionaries, early legal dictionaries also shed light on the meaning and types of effects. (178) In some dictionaries, effects include money and other forms of commercial paper. (179) Though the term was most commonly associated with bankruptcy or inheritance, it was not exclusively a term of art for those contexts. Eighteenth-century sources discuss the duty of innkeepers to keep guests' "goods and effects" safe and the rights of robbed persons to prove which "money, goods or effects" had been taken. (180) These and other early sources indicate that the term "effects" meant "personal property" in common and colloquial usage. (181)

2. Threats to Personal Property in Founding-Era Sources

   Although the Supreme Court has held that "the Amendment's proscription of 'unreasonable searches and seizures' must be read in light of 'the history that gave rise to the words,'" (182) that history has remained obscure for effects. As it turns out, personal property featured quite prominently in Founding-era grievances against the British and, later, in calls to support constitutional restrictions on federal power. This history demonstrates that effects were specifically included in the constitutional text because of the harms to privacy and dignity that could be incurred by their inspection, but also because of the risk of mishandling or damage generally associated with interferences with personal property.

   Threats of government wrongs to certain categories of personal property were repeatedly invoked in the Anti-Federalist and Revolution-era sources that Madison consulted while drafting the Bill of Rights. (183) Clothing was one of these categories: authors wrote about suffering searches of the clothing they carried on journeys, (184) and orators gave impassioned speeches about officers "measuring]" "everything you eat, drink, and wear." (185) Clothing-a necessity for civilized life--was associated with self-expression, of course, but the search of clothing could also affect one's dignity and livelihood. For that reason, clothing had special status elsewhere in the law of personal property: several early colonial statutes exempted clothing and bedding from confiscation for the satisfaction of debts. (186) Contemporary sources also decried invasions of an individual's repositories for letters, heirlooms, and valuables, namely cabinets, closets, desks, and bureaus. (187) If a man's house was his castle, his desks and cabinets were the crown jewels.

   Clothing and repositories would generally be found in the home or on the person, but a few Founding-era sources discussed the search and seizure of personal property outside the house, indicating that the colonists were likely aware that personal items were susceptible to government intrusion regardless of location. (188) For example, some searches and seizures of effects located on ships provoked the ire of colonial commentators when those actions interfered with particular types of personal property. (189) Admittedly, legislation authorized wide-ranging warrantless searches on ships both before and after the Founding, (190) but this might be explained by the fact that most areas of ships would not contain the sorts of personal items that concerned individuals in the Founding era. Indeed, some evidence suggests that contemporaries did object to searches or seizures of items on ships that resulted in the uncovering or seizure of personal goods owned by crewmembers or intended for the crew's use (rather than examination and seizure of items that were being imported for sale). (191) Virginia newspapers covered an incident in Jamaica where Spanish customs officers accused a British ship of smuggling, tied up a sailor, "and took from him his Buttons, Buckles, and every Thing of Value, as well as his Chest of Cloaths, Moveables in the Cabin, private Papers, and others belonging to his Vessel." (192) In the 1760s, newspapers from Connecticut and Massachusetts criticized customs officers who searched ship cabins to find personal food or liquor stores meant for the ships' crews. (193) One of these papers, The Essex Gazette, wrote a critical story about customs officers seizing "several Bundles of Cloths and other Necessaries" from the crew of a whaling ship. (194) In other words, though many items on ships lacked the protections associated with the home and were often subject to search without judicial scrutiny, some searches and seizures of personal...