James S. Humphreys - Constituting America

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The Fourth Amendment to the United States Constitution protects Americans from “unreasonable searches and seizures” by government officials. The Fourth Amendment was ratified in 1791 along with the other nine amendments in the Bill of Rights. It reads, “The rights 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.” The Fourth Amendment safeguards Americans from heavy-handed and arbitrary government action in some of the most private arenas of their lives.

The experience of the American colonists with British military and civil officials during the American Revolution convinced many colonists of the necessity of defending themselves from invasion and search of their homes by government agents. A number of state constitutions, written in 1776 during the early stages of the Revolution, included in a list of rights belonging to citizens a prohibition against the use of general warrants. Among the states with such a restriction in their constitutions were Maryland, Virginia, and Pennsylvania.

British officials, during the colonial era, often used general warrants to justify the search of a colonist’s home. General warrants provided little detail about whom or what were to be searched for, and, in some cases, colonists, with no evidence against them of illegal activity, suffered the indignity of having their homes searched. The Fourth Amendment demanded that a warrant be more detailed for a search and seizure to be legal. First, to obtain a warrant, there had to be “probable cause” or a good reason to believe a search was necessary in order to uncover evidence of a crime that might be used in a court of law. Second, a search warrant had to denote explicitly whom or what authorities were searching for and where their search would take place. Third, a warrant had to be signed by a judge. These three conditions lessened the chance of government authorities carrying out a baseless search of an American’s home and personal property.

State and federal judges’ interpretations of the Fourth Amendment became more complicated in the twentieth and twenty-first centuries than in earlier eras with the explosion of technologies that enhanced government officials’ ability to carry out electronic surveillance of citizens. The members of the Supreme Court, for example, upheld the use of wiretapping in the 1928 case of Olmstead v. United States, but in later cases, they ruled that government officials needed search warrants to justify wiretapping. In 2010, in the case of City of Ontario v. Quon, the judges ruled that emails and other forms of communication sent by workers over their employers’ servers were searchable without a warrant. According to another Supreme Court ruling, information on a personal cell phone belonging to an individual, who had been arrested, could not be subjected to a warrant-less search. The cell phone could be confiscated by the police and searched later after the issuance of a warrant.

Online learning, widely implemented during the Covid pandemic, also has Fourth Amendment ramifications. A federal judge, in 2022, wrote that a testing system’s requirement that a student scan his room before remotely completing an online assignment met the Fourth Amendment’s definition of an unreasonable search. University officials, who appealed the decision, argued that a scan held the potential to reveal evidence that a student planned to cheat on an assignment. While questions regarding the application the Fourth Amendment to the use of electronic devices abound, there is no question that evidence, for it to be admitted in court, must be obtained legally, that is, in accordance with all laws and rulings on what constitutes a reasonable search. The Supreme Court, by a 6-3 vote, ruled that evidence gathered illegally was inadmissible in court in the 1961 case of Mapp v. Ohio.

That the Framers of the Fourth Amendment included protection from illegal searches and seizures in the Bill of Rights indicates the significance of the right to the Revolutionary generation. In no way, though, is that liberty less important now than it was in early America. Instead, with government officials’ enhanced ability to surveil American citizens through more clandestine ways than entering and searching homes, the right may be of even more significance today than it was in past eras. One thing is for certain: During every period of United States history, citizens’ freedom from illegal searches and seizures has been vital to the maintenance of a free society.

James S. Humphreys is a professor of United States history at Murray State University in Murray, Kentucky. He is the author of a biography of the southern historian, Francis Butler Simkins, entitled Francis Butler Simkins: A Life (2008), published by the University Press of Florida. He is also the editor of Interpreting American History: the New South (2018) and co-editor of the Interpreting American History series, published by the Kent State University Press.

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The Indian Removal Act passed the United States House of Representatives by a vote of 102 to 97 and the U.S. Senate by a vote of 28 to 19. It was signed by President Andrew Jackson on May 28, 1830. Jackson, a Tennessean, held slaves and belonged to the Democratic Party. He first attracted national attention during the War of 1812, when his forces decimated the Creek Indians and later successfully defended New Orleans against the onslaught of an experienced and well-trained British army. Jackson’s reputation as the hero of New Orleans assisted him in his rise to the presidency. He signed the Indian Removal Act fourteen months after assuming office.

The act, consisting of eight sections, broadly outlined the conditions under which Native Americans would relinquish claim to their tribal land within the United States in exchange for territory west of the Mississippi River. United States officials would provide assistance to Native Americans during removal and would guarantee forever the migrants’ right to their western homeland. The act called for the allocation of $500,000 to cover the expenses incurred by the implementation of the measure. It also declared that earlier treaties negotiated with the Native Americans remained in force, disavowing any coercion of Native Americans on the part of U.S. officials. Removal was to be voluntary, not forced.[1]

The act targeted Native American groups living in the southern region of the United States. Whites referred to these groups as the “Five Civilized Tribes” — Choctaw, Chickasaw, Creek, Seminole, and Cherokee — because the tribes had adopted many of the habits and practices of white Americans. Some members of the tribes were not full-blooded Native Americans. John Ross, a prominent Cherokee leader, for example, was only one-eighth Native American. Hoping to earn the respect of whites, the Cherokee developed a phonetic alphabet, printed a newspaper with articles in English and Cherokee, wrote a constitution, held slaves, and founded a capital in northern Georgia called New Echota. Many whites, nevertheless, coveted Cherokee land in Tennessee, Alabama, and Georgia and the other four “civilized” tribes’ territory in other southern states. The deep-seated racism of whites toward Native Americans; the admission into the United States of Louisiana, Mississippi, and Alabama, all of which held prime cotton-growing land; and the discovery of gold in Georgia in 1829 whetted whites’ appetite for acquiring Native American territory. That is not to say that removal attracted the overwhelming support of whites. The Indian Removal act barely passed the House of Representatives. Many Whig party politicians, the most prominent of which was Kentuckian, Henry Clay, loathed Jackson and opposed the measure.

Andrew Jackson was not the first president to address the presence of large numbers of Native Americans living within the borders of the United States, but his removal policy stands out as the most aggressive strategy for dealing with them. Jackson viewed the policy as enlightened and benevolent, because, in his mind, the expansion of white civilization posed a lethal threat to Native American culture. The Native Americans, of course, viewed the policy differently, fearing that instead of saving their way of life, removal would destroy it. Cherokee leaders hoped to reach an agreement allowing them to remain on their land with U.S. officials, but Jackson’s unwillingness to yield eventually frustrated them. Cherokee leaders, therefore, sought redress in the federal courts, where they found judges sympathetic to their plight. John Marshall, Supreme Court Chief Justice, issued two rulings favorable to the Cherokee in the cases of Cherokee Nation v. Georgia and Worcester v. Georgia. The gist of each decision was that Cherokee lands belonged to the Cherokee, a fact U.S. officials were bound to respect. The court rulings failed to halt the implementation of the removal program, which dispensed with the earlier emphasis on voluntary migration.

The Choctaw, Creek, and Chickasaw Indians succumbed to pressure from federal officials to migrate to land west of the Mississippi River. The removal of the three Native American groups took place from 1831 to 1837. The most wrenching removal occurred in 1838 during the administration of Jackson’s successor, Martin Van Buren. A relatively small group of Cherokee agreed to removal terms outlined in the Treaty of New Echota. Members of the “Treaty Party,” believing removal was inevitable, accepted five million dollars from federal officials to relinquish all claim to Cherokee territory. The treaty’s provisions aroused the ire of Cherokees, who opposed migrating. The resisters beseeched members of the Senate to reject the treaty, but to no avail. The Senate ratified the treaty by one vote. As white settlers increasingly overran their territory, sometimes resulting in violence against Native Americans, the Cherokees held out bravely before being gathered into camps by U.S. troops prior to removal. The United States Army then oversaw the journey of twenty thousand Cherokees to the Oklahoma territory. The arduous trek, carried out during the winter, claimed the lives of four thousand Native Americans. The episode became known as the “Trail of Tears.” Seething with anger over what they considered betrayal, Cherokee resisters murdered several leaders of the “Treaty Party,” and the reputation of Andrew Jackson, once considered a great president, has declined over time as a result of his role in Native American removal.

[1] “Indian Removal Act of 1830,” California History Social Science Project, accessed March 19, 2020, chssp.ucdavis.edu.

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Principle of No Unreasonable Searches and Seizures

May 28, 1830: President Andrew Jackson Signs the Indian Removal Act, Leads to Trail of Tears