The Fourth Amendment, Cars, and Freedom in Twentieth-Century America

Abstract

By offering an integrated history of the automobile, policing, the Fourth Amendment, and the regulatory state, this dissertation reexamines a basic assumption in American legal history: that freedom required restricting the police’s power. It argues that the challenge for midcentury legal minds, from conservative scholars to mainstream lawyers to liberal reformers, was figuring out how to accommodate police discretion within the rule of law and, thus, within the meaning of freedom. American law ultimately settled on the uneasy resolution of proceduralism.

This history begins with the mass production of cars, which wreaked chaos on streets originally designed for pedestrians and horse-drawn carriages. Confronting widespread noncompliance with traffic laws necessary for public safety and welfare, local governments began to rely on police law enforcement. The shift in the mode of governance from nineteenth-century self-regulation to twentieth-century policing unsettled inherited constitutional principles that delineated the bounds of permissible state action. Transformations in policing also destabilized older notions of freedom. How would the Fourth Amendment adapt to the modern policeman, the law enforcement arm of the state? How could a democratic society depend on the discretionary authority of police to maintain order and still be free?

In the automotive culture of the United States, car search cases provided one of the main settings for grappling with these questions and hashing out legal norms dictating the individual-police relationship. The cases that determined when the Fourth Amendment required a warrant to stop and search a car set the outer boundaries of policing in a free society and found discretionary policing necessary, constitutional, and consistent with rule of law as long as the police abided by a nebulous standard of reasonableness. These cases most clearly illuminate the subtle but tectonic shift in the meaning of freedom, from a substantive right to be left alone to a procedural right to have due process. They also reveal the reconceptualization of rule of law as due process, which shaped a criminal legal culture that valued proceduralism as an end in itself. In the twentieth-century United States, freedom did not mandate just outcomes as long as individuals received just procedures.