See California v. Acevedo, 500 US 565, 582 (1991) (Justice Antonin Scalia concurring: describing warrant requirement as 'riddled with exceptions').
See Bradford P. Wilson, 'The Fourth Amendment as More Than a Form of Words: The View from the Founding,' in The Bill of Rights: Original Meaning and Current Understanding, edited by Eugene W. Hickok Jr. (Charlottesville: University Press of Virginia, 1991), 151, 156–57. As many have pointed out, there were not really any 'police' at that time in the sense that we understand the term today. The modern police force is a creation of the nineteenth century; see Carol S. Steiker, 'Second Thoughts About First Principles,' Harvard Law Review 107 (1994): 820, 830–34; William J. Stuntz, 'The Substantive Origins of Criminal Procedure,' Yale Law Journal 105 (1995).
See Amar, 'Fourth Amendment First Principles,' 767; Stuntz, 'The Substantive Origins of Criminal Procedure,' 400.
Indeed, as Professor William Stuntz argues quite effectively, one danger with warrants in general is that judges become lax and yet the product of their work (the warrant) receives great deference in subsequent proceedings; 'Warrants and Fourth Amendment Remedies,' Virginia Law Review 77 (1991): 881, 893.
See Stuntz, 'The Substantive Origins of Criminal Procedure,' 396–406.
See United States v. Virginia, 518 US 515, 566–67 (1996) (Justice Antonin Scalia dis senting: 'Closed-minded they were — as every age is . . . with regard to matters it cannot guess, because it simply does not consider them debatable').
See Lawrence Lessig, 'Fidelity in Translation,' Texas Law Review 71 (1993): 1165, 1230.
Olmstead v. United States, 277 US 438, 470 (1928), 464–65.
Ibid., brief for the Pacific Telephone and Telegraph Company (nos. 493, 532, 533).
Ibid., 473 (Justice Louis Brandeis dissenting).
'Translation' is not Brandeis's term, though it is a term of the courts. The idea is best captured by Justice Robert H. Jackson in West Virginia State Board of Education v. Barnette, 319 US 624, 639–40 (1943): 'Nor does our duty to apply the Bill of Rights to assertions of official authority depend upon our possession of marked competence in the field where the invasion of rights occurs. True, the task of translating the majestic generalities of the Bill of Rights, conceived as part of the pattern of liberal government in the eighteenth century, into concrete restraints on officials dealing with the problems of the twentieth century, is one to disturb self-confidence. These principles grew in soil which also produced a philosophy that the individual was the center of society, that his liberty was attainable through mere absence of governmental restraints, and that government should be entrusted with few controls and only the mildest supervision over men's affairs. We must transplant these rights to a soil in which the laissez-faire concept or principle of non-interference has withered at least as to economic affairs, and social advancements are increasingly sought through closer integration of society and through expanded and strengthened governmental controls. These changed conditions often deprive precedents of reliability and cast us more than we would choose upon our own judgment. But we act in these matters not by authority of our competence but by force of our commissions. We cannot, because of modest estimates of our competence in such specialties as public education, withhold the judgment that history authenticates as the function of this Court when liberty is infringed.'
See Robert Post, Constitutional Domains: Democracy, Community, Management (Cam bridge, Mass.: Harvard University Press, 1995), 60–64.
See Lessig, 'Fidelity in Translation,' 1214–68; Lawrence Lessig, 'Translating Federal ism: United States v Lopez,' Supreme Court Review 1995 (1995): 125, 146. For a more sophisticated analysis of how changing technologies in the context of telecommunications is affecting legislation and judicial doctrine, see Monroe E. Price and John F. Duffy, 'Technological Change and Doctrinal Persistence: Telecommunications Reform in Congress and the Court,' Columbia Law Review 97 (1997): 976.
