Looking Back at Frank v. Maryland (1959)

I recently came across a fascinating Fourth Amendment decision, Frank v. Maryland, 359 U.S. 360 (1959), that allowed warrantless health and safety inspections of homes. I had never read Frank before, as the case is only of historical interest: It was overruled just 8 years later by Camara v. Municipal Court, 387 U.S. 523 (1967). But the Frank case is pretty interesting for an argument the Court makes that I suspect will send a chill up the spine of any civil libertarian — or, for that matter, any libertarian, period.

Frank was arrested for refusing to let Baltimore health inspectors enter his basement to look for the source of a rat infestation. Frank argued that the warrantless entry would have violated his Fourth Amendment rights, so he had a constitutional right to refuse it. The Court held 5-4 that Frank did not have a Fourth Amendment right to refuse to consent to the search by the health inspectors. Justice Frankfurter wrote the majority opinion, and he made three arguments for why warrantless health and safety inspections at home do not offend the Fourth Amendment (applied to the states through the Fourteenth Amendment). First, such inspections were minimally intrusive. Second, such inspections had “antecedents deep in our history,” including at the time of the Framing, and yet they had not been thought to be constitutionally problematic.

But the third argument struck me as the most noteworthy: Justice Frankfurter made an explicit appeal to the needs of progressive reforms that at the time were a paramount concern driving the safety inspections. Remember, at the time this case was being briefed and argued, entire neighborhoods just blocks from the Supreme Court were being razed to replace the disease and squalor of the slums with the benefits of high-rise apartment buildings and “urban renewal.” With that in mind, check out Frankfurter’s language:

The need to maintain basic, minimal standards of housing, to prevent the spread of disease and of that pervasive breakdown in the fiber of a people which is produced by slums and the absence of the barest essentials of civilized living, has mounted to a major concern of American government. The growth of cities, the crowding of populations, the increased awareness of the responsibility of the state for the living conditions of its citizens, all have combined to create problems of the enforcement of minimum standards of far greater magnitude than the writers of these ancient inspection laws ever dreamed. Time and experience have forcefully taught that the power to inspect dwelling places, either as a matter of systematic area-by-area search or, as here, to treat a specific problem, is of indispensable importance to the maintenance of community health; a power that would be greatly hobbled by the blanket requirement of the safeguards necessary for a search of evidence of criminal acts. The need for preventive action is great, and city after city has seen this need and granted the power of inspection to its health officials; and these inspections are apparently welcomed by all but an insignificant few.

Remarkable passage, isn’t it? It’s hard to imagine any of today’s Justices speaking about a government search of a home using such language today. Today’s Justices (fortunately) would never write an opinion that speaks in so dismissive a tone about the homeowner objecting to the search and with such great confidence about the benevolence of the state.

Frank is also interesting in light of concerns occasionally heard about whether the Fourth Amendment was “gutted” thanks to 9/11. It didn’t actually happen, as far as I can tell: the post-9/11 Fourth Amendment is pretty much the same as the pre-9/11 Fourth Amendment. But Frank is an interesting example of how perceptions of government priorities can be used to justify broader government power — in that case, to allow a warrantless home search in light of “the responsibility of the state for the living conditions of its citizens.”