The drafters of the Bill of Rights and its proponents envisioned a document constitutionalizing protections against some of the worst abuses they had experienced under English rule. Prominent businessmen—many of them engaged in smuggling—found their homes ransacked in search of contraband on flimsy evidence and without any reason given for the disruption of their business and consequent enrichment of government agents. The Fourth Amendment addressed the use of general warrants and writs of assistance to allow government agents to conduct broad searches with limited scrutiny. In the early years of the Constitution, this had little practical effect, because public safety and criminal investigations were largely left to the states. State responses to criminal behavior were the province of institutions with limited powers, such as sheriffs and watches, though slave patrols in the southern states exercised broader search and seizure powers. These state institutions rarely provoked challenges under state constitutional protections, leaving the limits of both state and federal constitutional protections untested.
While the Fourth Amendment’s protections were not initially read to apply against the states, the Fourteenth Amendment aimed to extend the full range of constitutional rights to all citizens, including newly free Black Americans. In practice, the novel institution of professional policing emerged in the decades before the Civil War as a response to perceived disorder and criminal behavior. Police became more proactive in cities to suppress labor unrest and organized crime, conducting investigations on their own initiative long before any evidence was presented to a judicial officer. Anti-union policing saw government agents and their business allies develop undercover tactics and engage in mass violence in the name of law and order. Few targets of professional policing’s broader search and seizure powers challenged their arrests, convictions, or assaults under the Reconstruction Amendments in the Nineteenth Century. By the time courts effectively applied the Fourth Amendment against the states, police forces had essentially assumed the powers of the slave patrols against all free people.
The modern practice of policing by means of roving, armed government agents conducting frequent, warrantless searches replicates the abuses of general warrants and writs of assistance. The application of those powers to undermine democratic remedies for economic injustices replicates the abuses of the slave patrols. This Article takes up the novel argument that in doing so, modern policing violates the Fourth and Fourteenth Amendments. While constitutional rights are necessarily open to interpretation by the courts, they should never be construed to provide less protection than they did when instituted. This Article advances the abolition constitutionalist proposition that the tools necessary to enact many of police abolition’s goals already exist within the Constitution. Reversing constitutional law’s historical errors to restore the common-law protections embodied in the Fourth Amendment would strip police of their slave patrol powers.