Image adapted from Wikicommons by DhLeaks44 / CC BY-SA 4.0

---

“The Potential Religious Context of The Fourth Amendment”

Peter Wosnik

---

James Madison first introduced the Fourth Amendment to the U.S. Constitution to Congress in 1789. Since that time, the Fourth Amendment has become a bedrock in criminal procedure in American constitutional law. Thousands of state and federal cases have been decided interpreting and applying it in various ways and in myriad situations, which has yielded an impressive yet convoluted array of case law and precedent. Laws governing government searches of vehicles, homes, people, cellphones, computers, containers, and much more all make their way back to the Fourth Amendment. Numerous criminal law practitioners all over the country navigate the maze of Fourth Amendment law in their daily practice in actual cases that deal with actual or alleged unlawful searches and seizures. The Fourth Amendment states:

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.

Despite being entrenched in American law, the original context of the Fourth Amendment may have a surprising religious origin. Legal scholar Christian Edmonds, has recently argued for the apparent religious underpinnings of the development of the Fourth Amendment right against unreasonable search and seizure. Edmond’s article takes us back before the Constitutional Convention and to the religious upheavals that occurred in the Protestant Reformation in Great Britain and its aftermath. 

In what Edmonds argues was potentially the first extant opposition to a search, an individual named “Mr. Tregian” objected to a sheriff searching his home for a Jesuit priest. Mr. Tregian opposed the search, in part, on the grounds that he was a gentleman and that he considered “his house as his castel”. According to Edmonds, it was in the sixteenth century that individuals began to protest the use of general warrants to search religious dissidents themselves and their belongings, arguing that these searches were far too broad. For example, Edmonds cites an occasion in 1550 when entire libraries at Oxford University were searched for Catholic books and publications. 

Confiscation of Catholic works and persecution of Catholic dissidents continued through the sixteenth and seventeenth centuries, but persecution of Protestants also occurred under the Catholic Queen Mary and with later Protestant dissenters to the Church of England. Edmonds notes how the founder of Pennsylvania, William Penn, was a critic of general warrants, as he had been arrested for attending an illicit religious meeting and was subject to a general search warrant for “treasonable practices.” Unsurprisingly, Penn became a champion of freedom of conscience and an opponent of religious persecution. 

Yet not all early Americans were sympathetic to religious freedom, and not every colony tolerated religious outsiders and dissidents. There were laws in Massachusetts, for example, that required searches of suspected Quaker meetings. Edmonds cites the trial of Thomas Maule as a turning point for religious freedom in colonial America. Maule had published a pamphlet that had defended Quaker religious practice while criticizing the excesses and judicial miscarriages of the Salem Witch Trials. Despite being prosecuted he was ultimately found not guilty by a jury of his peers.

The Fourth Amendment eventually emerged from this cultural milieu. As Edmonds puts it, “religious conflicts that followed the Reformation greatly influenced the Founders making the protection of religious liberty a major factor in the eventual adoption of the Fourth Amendment.” Edmonds argues for a direct connection between religion and the Fourth Amendment on two grounds. First, James Madison – a champion of religious freedom – was also the drafter of the first draft of the Fourth Amendment. Second, Madison himself specifically stated that his amendment was needed to protect “against general warrants,” a legal instrument that had been used to search the property and persons of religious minorities. This connection, however, is indirect, for Edmonds argues that “it is more than fair to infer that searches and seizures of religious objects were at the forefront of the Framers’ mind when drafting the Fourth Amendment to eliminate general warrants.” He continues: “With the history of general warrants in mind, one cannot imagine extinguishing general warrants without also destroying one of the most pervasive forms of general warrants in sixteenth- and seventeenth-century England and America: religious searches and seizures.”

 While stopping short of claiming an explicit and direct connection between religious freedom and the Fourth Amendment, Edmonds identifies a plausible and even likely connection between the two, and his work invites further research. Beyond the need to further understand the historical connections between the First and Fourth Amendments, legal scholars and citizens might also consider the implications of a changing religious context: Is religious freedom still relevant to the Fourth Amendment? And, does the Fourth Amendment still have implications for the First Amendment? 

In the final section of his article, Edmonds contends that, given its religious underpinnings, the Fourth Amendment should provide special protections for pastoral “work product “, such as  the papers and writings of religious clergy.” To make that argument, he first looks at the case of Zurcher v. Sandford Daily where the United States Supreme Court found that even when proper warrant procedure is followed, it does not always make a particular search or seizure reasonable. In Edmonds’s words “[t]his is important because it means that there are certain searches and seizures that are unavailable to the government.” Edmonds applies this logic to the protection of pastoral papers arguing that they are deserving of special protections both because they contain mental impressions of clergy and because religion is treated differently in other areas of the law—such as religious groups being given special status in church autonomy cases, zoning laws, clergy-penitent privilege, and tax exemption. Edmonds argues that such protections should extend to pastoral work product:

Because pastoral work product contains a minister’s own personal thoughts, not meant to be shared with anyone else, and the United States treats religion as having a special nature, the search and seizure of pastoral work product should not be condoned. The sacred, special nature of churches, which has been long recognized by society and the courts, demands the government’s respect; the property interest ministers hold in their papers compels government restraint in infiltrating religious organizations. Courts have repeatedly accorded special treatment to churches, and they should continue to do so.

Edmonds’s idea of the pastoral work product deserves more attention. Religious free exercise is certainly a historically privileged right and Edmonds is right to note that religion has often been treated differently than other matters. 

However, Edmonds seems to be advocating for something further, seemingly an absolute unavailability of religious work-product to the government. Such an absolute position could be harmful to society. For example, what if a religious group was engaging in or abetting criminal activity? What if the work-product of a pastor contained evidence of abuse? Would the government and society have no recourse? Perhaps a way forward would be to create a standard that gives these materials heightened or special protection without making them completely unavailable to the government in serious criminal investigations. 

Although Edmonds’s arguments are not likely to convince all readers, his article is important in that it shows a plausible connection between the religious background of general warrants and the prohibition of unreasonable searches and seizures found in the Fourth Amendment. As discussed in previous posts, many of the legal concepts that permeate our legal system had their genesis in religious thought that are often lost in our more secular age, and the Fourth Amendment may well be another one. 

Edmonds’s article is important because it points to a potential expansion of Fourth Amendment jurisprudence to protect pastoral work product. The latter would especially be of interest to religious people and communities who fear that their organizations or beliefs could become the target of government intrusion in the near future. Those of a secular persuasion, might bristle at the argument for the elevation of religion over and above other institutions and practices, and may not be persuaded that religious clergy or churches should or even need to be specially protected by the Fourth Amendment. Still, Edmonds’s article should remain a starting point for research and healthy future debate on the topic. ♦

---

---

Recommended Citation