The substantive origins of criminal procedure.

• Author: Stuntz, William J.

The focus of Fourth and Fifth Amendment law is day-to-day criminal investigation: police searches and seizures, interrogation of suspects, and so forth. In this Article, Professor Stuntz argues that Fourth and Fifth Amendment history has a very different focus. The Fourth and Fifth Amendments arose out of heresy and seditious libel investigations, in a time when police forces did not exist. In the late nineteenth century, when the Supreme Court first took a hand in crafting Fourth and Fifth Amendment doctrine, the key cases involved railroad and antitrust regulation - a far cry from ordinary criminal investigations, and far removed from the common concerns of police misconduct. In both the eighteenth and nineteenth centuries, Fourth and Fifth Amendment law's primary effect seems to have been to make it harder to prosecute substantively controversial crimes: heresy, sedition, or unpopular trade offenses at the time of the Founding, regulatory offenses in the late nineteenth century. Criminal procedure 's history thus has little to do with day-to-day criminal investigation - little to do with the police - but has a great deal to do with substance, with what conduct the state may criminalize. This unusual history, Professor Stuntz contends, is crucial to any understanding of the strange features of the current law of criminal investigation. In particular, it goes far toward explaining that law's failure to come to grips with police violence, surely the most important category of police misconduct.

1. INTRODUCTION

   Consider the following anomaly: The law of criminal procedure closely regulates when a police officer can look in the glove compartment of my car or ask me questions about a crime, but it pays almost no attention to when (or how often or how hard or with what weapon) he can strike me. We have very detailed law governing a host of evidence-gathering issues, but surprisingly little - and surprisingly lax - legal regulation of police coercion and violence. This state of affairs is both strange and wrong. It is also a product of criminal procedure's odd history.

   One aspect of that history is familiar. Fourth and Fifth Amendment law are the traditional guardians of a particular kind of individual privacy - the ability to keep secrets from the government. The most famous and important search and seizure cases of the eighteenth, nineteenth, and twentieth centuries involve government officials rummaging through private papers, subpoenaing private documents, or eavesdropping on telephone conversations.(1) Similarly, the privilege against self-incrimination arose in part from claims that one should not be required to disclose one's thoughts or beliefs under pain of criminal punishment.(2) This strand of thought about the privilege has mostly died out today, but as recently as a generation ago privacy was the dominant explanation for why the privilege existed.(3) And the privilege at its heart has always protected a form of secrecy - the right not to share one's testimony with the government.

   But there is another, less noticed strand of Fourth and Fifth Amendment history. Privacy protection in the past had little to do with ordinary criminal procedure. The Fourth and Fifth Amendments arose out of heresy investigations and seditious libel cases, not murders and robberies. In the late nineteenth century, when the Supreme Court first took a hand in crafting Fourth and Fifth Amendment law, the key cases involved railroad regulation and antitrust - again, a far cry from ordinary criminal litigation. In both the eighteenth and nineteenth centuries, the law's primary effect seems to have been to make it harder to prosecute objectionable crimes - heresy, sedition, or unpopular trade offenses in the seventeenth and eighteenth centuries, regulatory offenses in the late nineteenth century. To a surprising degree, the history of criminal procedure is not really about procedure at all but about substantive issues, about what conduct the government should and should not be able to punish.

   Fourth and Fifth Amendment history thus has more in common with the First Amendment and Lochner v. New York(4) than with criminal procedure as we know it today. Fourth and Fifth Amendment law has traditionally limited government evidence gathering in order to guard individual privacy, but the limits and the protection have mattered most in settings in which there have been serious concerns about the government's power to regulate the relevant conduct. Meanwhile, those bodies of law had only a small effect on run-of-the-mill criminal investigations and prosecutions. It is as if privacy protection were a proxy for something else, a tool with which courts or juries could limit the government's substantive power.(5)

   This system began to break down near the turn of this century, with the advent of the Interstate Commerce Act, the Sherman Act, and other statutes designed to regulate business. These statutes dramatically altered the substantive effect of constitutional privacy protection, transforming it into a tool for preventing unwelcome regulation of business. Some courts embraced this transformation (this was, after all, the Lochner era), but by the end of Theodore Roosevelt's presidency that path was already largely abandoned. Foreshadowing the switch in time of 1937, the Supreme Court began to erect unprincipled boundaries around Fourth and Fifth Amendment protections in order to limit their restrictive effect on regulatory statutes. Yet the underlying focus of the law - the idea that the Constitution places great value on one's ability to keep information out of the government's hands - remained, setting the stage for the conflicts and inconsistencies that riddle Fourth and Fifth Amendment law today.

   The results of this history can be seen today both in what the law regulates and in what it leaves alone. If the law of search and seizure now seems obsessed with evaluating the privacy interest in jacket pockets or paper bags, that is a consequence of the strong tradition of using Fourth and Fifth Amendment law as a shield against government information-gathering - a tradition that has more to do with protecting free speech than with regulating the police. If privacy seems surprisingly unprotected when government agencies search regulated businesses or when government employers search their employees, that is a consequence of the early twentieth-century conflict between privacy protection and the emerging regulatory state. Finally, if the law all but ignores police violence outside of interrogation rooms, if it pays more attention to what police officers can see than to what they can do, that too is a consequence of the Fourth and Fifth Amendments' odd history. Except for the last generation or so, that history has had surprisingly little to do with the police. It has had more to do with the substantive law of crimes, with what activities the government should and should not be able to punish.

   Of course, the substantive issues that shaped Fourth and Fifth Amendment law are long since settled. The government cannot prosecute people for sedition or heresy. Regulatory crimes abound, and few people think they raise serious constitutional problems.(6) Meanwhile, the law of criminal procedure still follows the path marked out by these old battles. We have taken a privacy ideal formed in heresy cases and railroad regulation disputes, an ideal that had no connection to ordinary criminal law enforcement, and used it as the foundation for much of the vast body of law that polices the police. Predictably, the combination has not worked out very well.

   Part II of this Article discusses the Fourth Amendment's eighteenth-century roots. Part III turns to the origins of the privilege against selfincrimination. Part IV examines the role both doctrines played during the late nineteenth and early twentieth centuries. Finally, Part V offers an account of how we got to where we are, of the transition from Lochner-era Fourth and Fifth Amendment law to the Warren Court, and from the Warren Court to today. These discussions are not detailed, and there are no impressive new discoveries. The basic outlines of Fourth and Fifth Amendment history have long been fairly clear. I wish only to suggest that those basic outlines, especially the eighteenth-century disputes that led to the Fourth Amendment together with Boyd v. United States and its nineteenth-century progeny, paint a different picture than the one we usually see.

2. THE SUBSTANTIVE ORIGINS OF THE FOURTH AMENDMENT

   The literature on the Fourth Amendment's origins is sparse, but that may be because agreement is so widespread. Like the rest of the Bill of Rights, the Fourth Amendment was prompted by complaints pressed during the Constitution's ratification.(7) Also like other items in the Bill of Rights, the Fourth Amendment echoed several state constitutional provisions.(8) But its real source, historians seem to agree, was the same as the source of those state provisions: a trio of famous cases from the 1760s, two in England and one in the colonies.(9) All of the literature on the Fourth Amendment's origins focuses on these three cases, which were not only well known to the men who wrote and ratified the Bill of Rights, but famous throughout the colonial population. Any effort to understand the Fourth Amendment's roots, then, must start with these cases and the legal context within which they operated.

   1. John Entick and John Wilkes

      Two of the three cases can be usefully paired, since they have so much in common. John Entick and John Wilkes were both authors of political pamphlets critical of the King's ministers. As a consequence, both suffered the ransacking of their homes and the seizure of all their books and papers, both sued the officials who ordered or carried out the searches, both won (and collected substantial damages), and in both cases Chief Justice Pratt (later Lord Camden) offered ringing...