The Fourth Amendment During the Lochner Era: Privacy, Property, and Liberty in Constitutional Theory

In this article, Professor Morgan Cloud proposes a surprising remedy for a Fourth Amendment jurisprudence he criticizes as lacking a unifying theory and failing to preserve the rights guaranteed by the Amendment. Professor Cloud's solution is a return to the theories espoused by the Supreme Court during the infamous Lochner era of the early twentieth century. He calls for a merging of the formalist and pragmatist theories of that period into an interpretive theory of the Fourth Amendment and suggests a rededication to the Amendment's Warrant Clause. Such a theory avoids the pitfalls of literalism and judicially determined social policy, while protecting the basic purposes of the Amendment-to protect individual liberty, privacy, and property and to prevent unjustified government intrusions.