Josh Blackman » “Early patriots railed against these practices as ‘the worst instrument of arbitrary power’ and John Adams later claimed that ‘the child Independence was born’ from colonists’ opposition to their use.”

“Early patriots railed against these practices as ‘the worst instrument of arbitrary power’ and John Adams later claimed that ‘the child Independence was born’ from colonists’ opposition to their use.”

February 22nd, 2012

What rock-ribbed originalist wrote this in a Supreme Court opinion today? Justice Thomas? Justice Scalia?

Nope. Sotomayor in Messerschmidt v. Millender.

The fundamental purpose of the Fourth Amendment’s warrant clause is “to protect against all general searches.” Go-Bart Importing Co. v. United States, 282 U. S. 344, 357 (1931). The Fourth Amendment was adopted specifically in response to the Crown’s practice of using general war- rants and writs of assistance to search “suspected places” for evidence of smuggling, libel, or other crimes. Boyd v. United States, 116 U. S. 616, 625–626 (1886). Early patri- ots railed against these practices as “the worst instrument of arbitrary power” and John Adams later claimed that “the child Independence was born” from colonists’ opposi- tion to their use. Id., at 625 (internal quotation marks omitted).

To prevent the issue of general warrants on “loose, vague or doubtful bases of fact,” Go-Bart Importing Co., 282 U. S., at 357, the Framers established the inviolable principle that should resolve this case: “no Warrants shall issue, but upon probable cause . . . and particularly de- scribing the . . . things to be seized.” U. S. Const., Amdt. 4. That is, the police must articulate an adequate reason to search for specific items related to specific crimes

Update: And in Oral Argument in U.S. v. Alvarez, Justice Sotomayor asked the United States whether they agree with Justice Story (appointed my Madison!)

So please tell me what’s wrong with Justice Story’s view, number one;