Eric J. Miller

Document Type



The standard story taught to American lawyers, purporting to describe the Warren Court’s criminal procedure “revolution,” is mostly wrong. The story claims that the Court, motivated by liberal egalitarianism, engaged in a rights-expanding jurisprudence that made it harder for the police to search, seize, and interrogate criminal defendants. But frightened by the popular backlash against high crime rates, and in particular the passage of the Omnibus Crime Control and Safe Streets Act of 1968, in Terry v. Ohio a cowed Court shifted from its rights-expanding to a rights-constricting phase, making it easier for the police to search and seize criminal suspects. Measured by this rights revolution, there were, in fact, two Warren Courts, a liberal and a more conservative one, emblematically separated by Terry. The two-Warren-Courts hypothesis, at least as applied to Fourth Amendment law, results from a tendentious liberal re-reading of the Court’s jurisprudence. The dominant theme in the Court’s Fourth Amendment jurisprudence was not liberal, but civic republican, one that emphasized inter-branch regulation of the police over the right to privacy. Rather than a rights-expanding and a rights-contracting Warren Court, from the early 1960s onwards, the Court mounted a consistent attack on the pre-existing versions of the right to privacy. Rather than a liberal egalitarian, or privacy-protecting rights regime, the central Fourth Amendment right under the Warren Court was the republican interest in personal security. Extending personal security into areas hitherto unregulated by the law was a major concern of the Terry Court. An expansionist Terry cannot be squared with a Court in retreat in response to public outcry over crime rates. Worse, the liberal story has produced a barren doctrinal and political account of the Fourth Amendment. Focusing on privacy as the means of generating equality and antidiscrimination ill fits Fourth Amendment doctrine and ignores major developments in the substantive criminal law that include Terry and culminate with Papachristou v. City of Jacksonville. An obsession with privacy too easily paints law enforcement as a repressive force whose power and numbers should be severely limited. This narrow liberalism has turned progressive attention away from the vital and difficult task of generating a doctrinal and political account of policing: its justification, intrinsic limits, and proper means of regulation.