Posted by David Bernstein:
Pop Quiz on the History of the Fourth Amendment:
http://volokh.com/archives/archive_2007_09_30-2007_10_06.shtml#1191165186
In 1925, the Supreme Court [1]upheld a warrantless automobile search
against a Fourth Amendment challenge. The dissent argued that Fourth
Amendment protections should apply to cars as well to homes:
And it is argued that the words and history of this section
indicate the intent of Congress to distinguish between the
necessity for warrants in order to search private dwelling and the
right to search automobiles without one. Evidently Congress
regarded the searching of private dwellings as matter of much
graver consequence than some other searches and distinguished
between them by declaring the former criminal. But the connection
between this distinction and the legality of plaintiffs in error's
arrest is not apparent. Nor can I find reason for inquiring
concerning the validity of the distinction under the Fourth
Amendment. Of course, the distinction is valid, and so are some
seizures. But what of it? The act made nothing legal which
theretofore was unlawful, and to conclude that by declaring the
unauthorized search of a private dwelling criminal Congress
intended to remove ancient restrictions from other searches and
from arrests as well, would seem impossible.
While the Fourth Amendment denounces only unreasonable seizures
unreasonableness often depends upon the means adopted. Here the
seizure followed an unlawful arrest, and therefore became itself
unlawful-as plainly unlawful as the seizure within the home so
vigorously denounced in Weeks v. United States...
Here's the quiz. The two dissenters were (a) noted civil libertarians
Louis Brandeis and Oliver Wendell Holmes; or (b) reactionary
"Horsemen" McReynolds and Sutherland.
The answer is "b", with McReynolds writing the opinion. Brandeis and
Holmes joined Chief Justice Taft's majority opinion.
References
1. http://supreme.justia.com/us/267/132/case.html
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