The "Good Old Days" of the Fourth Amendment?

Orin Kerr tries to identify the "good old days" of the Fourth Amendment, which reads:

The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.

According to Kerr:

If you had to identify a "high point" of Fourth Amendment protection, I suppose you might pick the window from December 1967 to May 1968, or maybe the six years from December 1967 until some of the pro-law enforcement decisions of the Court in 1973. But if that's right, it seems to me that the "good old days" of the Fourth Amendment were actually a pretty narrow window of time: anywhere from a few months to five or six years, around forty years ago, out of a 217-year history of the Fourth Amendment.

Kerr's high point should be called a low point. The six years from 1967 to 1973 were "good old days" when law enforcement was hamstrung in its efforts to protect us from predators. One result was to reinforce the upward trend in the rate of violent and property crimes.

In any event, the Fourth Amendment has been distorted out of all recognition, as I explained in writing about the U.S. Supreme Court's decision in Hudson v. Michigan:

[T]he majority ... believed that the case did not involve a "knock-and-announce" violation. But the majority could not change the fact of Michigan's concession that there was such a violation. So the majority did the next best thing; it prevented Hudson from getting off scot-free, in spite of the supposed violation. How? The majority found the "exclusionary rule" inapplicable and allowed the evidence found in Booker Hudson's home to be used against him.

By its action the majority also forestalled claims similar to Hudson's. The second-guessing by prosecutors and judges of reasonable judgments made by the police in the execution of their duties -- especially in the execution of lawful warrants -- is not a defense of liberty. Rather, it undermines liberty by making it easier for predators like Booker Hudson to elude justice, on the questionable theory that "it is better that ten guilty persons escape than that one innocent suffer."

I contend, further, that a proper reading of the Constitution would require either "knock-and-announce" or a warrant, not both. At the time of the framing, when "knock-and-announce" was accepted law, warrants were not accepted law. As William J. Stuntz writes in The Heritage Guide to the Constitution (pp. 326-9):

. . . When the Fourth Amendment was written, the sole remedy for an illegal search or seizure was a lawsuit for money damages. Government officials used warrants as a defense against such lawsuits. Today a warrant seems the police officer's foe -- one more hoop to jump through -- but at the time of the Founding it was the constable's friend, a legal defense against any subsequent claim. Thus it was perfectly reasonable to specify limits on warrants (probable cause, particular description of the places to be search and the things to be seized) but never to require their use.

Hudson served justice, while remaining true to the original meaning of the Constitution.

Hudson may not have been the high point of Fourth Amendment jurisprudence, but it was among the higher points.