>> next on american history tv, a supreme court historical society program. columbia law school professor sarah seo talks about her award-winning book "policing the open road: how cars transformed american freedom." in this presentation, the professor focuses on a chapter in the book dealing with how fourth amendment rights regarding search and seizure

had been applied to automobiles and legal reforms she argues are needed to prevent police abuses and mistakes. prof. seo: -- chilton: today's lecture has an intriguing title -- "automotive fourth amendment." professor seo will talk for about 40 minutes and then we will take questions. if you have questions or comments for the professor, please submit them via the question and answer feature of your zoom connection. jim dove, the society's executive director, will review those communications and present to professor seo as many as we can get into our somewhat constrained time limits. now, about our speaker, sarah seo is a professor at columbia

law school. she's a legal historian of criminal law and procedure in 20th-century united states. her recent book, entitled "policing the open road: how cars transformed american freedom," examines the history of the automobile in order to explain the evolution of the fourth amendment and to explore the dilemma of police discretion in a society committed to the rule of law. the book was named one of 2019's 10 best history books by the "smithsonian magazine." it also received a number of prizes, including the order of

the dove book award, the prize from the american historical association, and the ralph waldo emerson award from the phi beta kappa society. in addition to publishing and -- in academic journals, professor seo has written for the atlantic, boston review, lapham's quarterly, the new york review of books, and the washington post. after earning her jd at columbia in 2007, professor seo clerked for judge denny chen, then judge for the circuit court of the southern district of new york and later clerked for the judge of the u.s. court of appeals for the second circuit. her cv is certainly not shabby. please join me in welcoming our distinguished speaker, professor seo.

and, professor the society's virtual platform is no yours, and -- is now yours, and we are grateful that you are joining us today. we look forward to it. thank you. prof. seo: thank you so much for that warm welcome and for inviting me to share a little bit about my scholarship. it is a real collision. i have been looking forward to this since they scheduled it and put it on the calendar. to begin, i want to share my screen. can you see this? ok. great. all right. so, i want to begin with a paradox -- cars transformed -- or cars symbolized freedom in 20th century american culture. my favorite example here is the dodge commercial, which has the tagline -- "americans got two

things right: freedom and cars." the symbolism was forged from the very early years of the automobile as mass production democratized mobility, as you can see in this 1911 advertisement for everyman. according to the ford motor company, women could also experience the freedom of driving, which was happening even before they gained the right to vote. but freedom is one of the most policed aspects of american life. all too familiar now is how a minor traffic violation can lead to intrusive and even abusive policing, especially for people of color. the automobile paradox raises a question -- how did the meaning of freedom change in the 20th century when americans came to expect and even accepted a great deal of policing in the very symbol of their freedom? my book examines this question through the history of the fourth amendment. and the title of my talk today comes from a title of a chapter in the book "the automotive

fourth amendment." by the end of my talk, i hope not only to answer the question about how the meaning of freedom changed, but also to convince you that the fourth amendment we have today is largely the automotive fourth amendment. so let's start with the text of the fourth amendment, which protects the right of the people to be secure against unreasonable searches and seizures, and then lists the warrant requirement. i focused on the fourth amendment because a seizure, which includes a stop of a person as well as a stop of a driver in a car is the first moment in a police encounter. and so it's a constitutional provision that most directly regulates the police. the reason why i wrote about the fourth amendment in the 20th century and not during the founding era, when it was drafted and ratified, is that fourth amendment cases were pretty rare until the 20th century.

in many years there were none. then the cases exploded in the 1920's as you can see in this chart. three developments contributed to this explosion. first is the exclusionary rule, which some states adopted during this period. the u.s. supreme court adopted the exclusionary role in the 1914 case meeks v u.s., and under the rule, evidence of a crime had to be excluded if it was obtained in violation of a constitutional right. so if the police discovered evidence in violation of the fourth amendment, then the government could use that evidence to commit the defendant. -- to convict the defendant. without evidence there is no case. this incentivized fourth amendment challenges. second, national prohibition began in 1920, after the ratification of the 18th amendment. and the prohibition of alcohol increased the number of cases that involved evidence that defendants wanted to exclude,

so that also increased fourth amendment cases. these two developments coincided with the mass production of the automobile. the ford model t debuted in 1908 and the assembly line was perfected for the ford model t in 1914. and you can see in this chart, i circled the relevant years, 1908, when the model t was debuted. 63,500 cars were manufactured. that number jumps in 1914, when the assembly line is perfected, to a little over half a million. and in 1920, during prohibition, it jumps to 2 million. so the subsequent adoption cars then exploded. so bootleggers' favorite mode of transportation was the automobile, which was essentially a movable container for hiding and transporting things, so, suddenly, state and federal courts throughout the country had hundreds of fourth amendment cases all raising the

same question, do prohibition agents need a warrant to stop and search a car? judges had a hard time answering this question. on the one hand, the text of the fourth amendment protects persons, papers, houses and effects. and, at the time, this meant that a warrant was required to search and seize these things, persons, papers, houses and effects. effects is defined as a movable property, and a car is a movable property, which means a warrant would be required to stop a car, which is a seizure, and then to search it. on the other hand, cars can be driven off at any time and there wasn't time to go get a warrant. so this was the problem of the getaway car. prohibition enforcement depended on officers' availability just --ability to stop and search cars without warrants. so some judges, like this legal analyst, argued that the supreme court should recognize the fourth amendment is inconsistent with the 18th and that the

fourth amendment had been repealed. but the difficulty was that the rule of law required courts to uphold both the fourth and the 18th amendments. both amendments were part of the constitution. the police had to respect the fourth amendment, but citizens had to obey the 18th amendment. in many parts of the country, prohibition was very unpopular. think about the roaring 20's and speakeasies. and it quickly became clear that the 18th amendment depended on greater enforcement. so the difficulty was that the rule of law cut both ways. of course, there wouldn't be much of a conflict between the fourth and 18th amendments if there were no exclusionary rule. without the rule, a violation of the fourth amendment would result in the exclusion of evidence. -- would not result in the exclusion of evidence. perhaps the offending officer might be disciplined or sued, but the government could still

prosecute violations of prohibition. so the issue came up, most in states that had not yet adopted the exclusionary rule and it came up, should we adopt the exclusionary rule were not? in 1923, the u.s. supreme court heard its first car case, carol versus united states. it is not too much of a coincidence that it involved bootlegging. i just mentioned that federal courts already had adopted the exclusionary rule in 1914. so what happened in 1923 was that the justice wanted to reconsider the exclusionary rule. the petitioner's brief in the case could not hide their surprise and disappointment that the court was overruling the principle articulated in weeks versus united states, the principle of exclusion. they talk about the carroll case that began with federal prohibition agents recognizing

the car in automobile roadster. this model on the road between detroit and grand rapids. they knew who carol was because they had tried to get him during a failed undercover operation a few months earlier. the agents had set up a buy of three cases of whiskey, but carrol must've caught onto the scheme because he never showed up with the goods. so when the agents saw him on the country road a few months later and sure enough they found 68 bottles of whiskey and gin in the car. carroll and his partner, the carroll brothers, were found guilty and appealed all the way up to the supreme court. arguing that the taking of their car without a warrant violated the fourth amendment. the government was represented by the solicitor general. he agreed with the carroll that they were right about the law. so he made an argument that we usually don't hear before the supreme court. he argued that the court should change the law. so he said in his brief the

advent of the motorcar requires a reconsideration of these well-settled rules of law. let me explain what that law is and how that interacted with the fourth amendment. to do that, have to first explain how 19th century jurists and lawyers thought about constitutional law. legal scholars today call the 19th century way of thinking classical legal thought. and, according to classical legal thought, the world was divided into two spheres, the public sphere and the private sphere. the government could regulate the public sphere, and these could be called public rights. an example that i discuss in my book is traffic laws. traffic laws regulate the use of public roads and highways for the public safety. -- the public's safety. by contrast, individuals had to have the right to be left alone from the government and the -- government in the private sphere, which could also be

called private rights. an example is private property rights. so applying this classical legal thought to the fourth amendment, officers could search or cds -- or seize things in the private sphere, but the warrant requirement didn't apply to the public sphere. for example, officers don't need a warrant to make a traffic stop to give you a traffic ticket. so the fourth amendment begins with the question, is the thing to be searched or seized in the public sphere or the private sphere? so the jurists looked to the text of the fourth amendment, which protects person, papers, houses and effects. and these were in the private sphere. so any search or seizure of these things required a warrant. so a seizure of a person is an arrest, so the arrest of a person requires an arrest warrant. so it's important to keep in mind that the public or private nature of a thing wasn't self-evident or absolute. for instance, in 1928, a new york city police commissioner

defended unlawful police tactics on the ground that any man with a previous record is public property. another example comes from the classic treatise on the limitation of police power published in 1886, and on the section on arrests, the author begins with the general rule that there could be no arrests without a warrant. that is what we talked about. but then he wrote that for public reasons that a person could be arrested without a warrant. and these were situations where getting a warrant would obstruct the effectual enforcement of the laws. so there were two main exceptions for the requirement, which he states down here and he breaks it up into four, but it could be summarized into two main exceptions. one had to do with felonies, number one and two here. so basically, an officer can make an arrest without a warrant if a felony was being committed, or if he had reasonable grounds to believe the person committed the felony.

the second exception is misdemeanor exception, which requires a bit more from the government. an officer actually had to see the misdemeanor take place. and if that officer had personal knowledge that a misdemeanor had taken place, not just belief. and in some jurisdictions, this misdemeanor exception was limited to breaches of the peace. so these warrant exceptions were referred to as the common law of arrests. another way to view the common law is as a list of exceptions to the warrant requirement. let me give you one more example. the home is and it still is, was and it still is, the preeminent private sphere. so officers have to have a warrant to search a home. but that does not mean there can be no government regulation of homes. there are building codes to prevent fires, which can also authorize inspectors to enter

homes to check for compliance. these laws are enacted for the public's interest. so persons and houses generally fell within the private sphere, but they can be shifted over to the public sphere to justify exceptions for the public's interest, but there was a key difference between persons and houses. an officer can arrest a person without a warrant based on his determination of legal cause, and then the arrestee would receive due process afterwards, beginning with a prompt hearing before a magistrate. in contrast, government action regarding the home had to go through legislative or judicial procedures first. lawmakers passed building and fire codes while judges decided whether to grant a warrant to search a home. so in the treatise and under the common law, there is no provision for warrantless searches of a home. this is a common law that the

solicitor general was referring to when he argued that it had to be reconsidered, and the question that he posed for the court in his brief was whether the same rule that applies to a man's dwelling shall also apply to the automobile. which would mean there would be no warrant exception. so the alternative was to treat cars like persons, which would then raise the possibility of a warrant exception. so a house or a person, these were the two fourth amendment archetypes that would determine the issue. and to preview how this would continue to vex the supreme court throughout the 20th century, in 1971, justice white suggested that, in the interest of credibility, they treat automobiles precisely as we do houses or treat the searches of automobiles like we do the arrest of a person. so a house or a person. the question was whether a car was more like a house or a

person, which is a weird question. as the solicitor general put it, with the advent of motor vehicles, property has taken a form which has created necessity that has not here to for existed. -- not heretofore existed. so it was a new kind of property. the question was, what kind of property was a car? the difficulty was that had characteristics of public and private property. on the one hand, cars were private property, and for many judges, it seemed obvious that cars were private in the same ways that a home was private. many early 20th century americans also experienced their cars not just as a mode of transportation but also as a new private space. as you can see in this advertisement, a car could be a drawing room on wheels. and in this hit 1905 song, the singer sings to lucille to go

automobiling, you and i, promising her we can go as far as you like with me and my merry oldsmobile. the song was such a hit that the company came the songwriters a free oldsmobile. so in the very earlier years of the car, people thought of them as a setting for intimate pleasures. on the other hand, cars traveled on public roads and were subject to a great deal of regulation, as this pennsylvania court explained in 1923. they are peculiarly in the subject of government control, because otherwise modern life and society would be hopelessly imperiled. they went on to explain that while there were natural rights to private property that existed entirely independent of government, no one had such a right to drive without permission from the state, as you can see here. that permission was embodied in the preliminary license. what we now know as the driver's license. what the court did was, by

emphasizing the right to drive or operate a motor vehicle, the court shifted the analysis from a noun to a verb, from private property to individual action, and this made it easier to categorize the car under the public sphere. so whether the car was public or private made all the difference in deciding the fourth amendment issue. take justice mcreynolds. he was a classical conservative who valued private rights over government regulations. so in the carroll case, he voted for the petitioners, the carroll brothers, because he viewed them as private property, which meant that the government needed to get a warrant. three years later, in 1928, the court decided in homestead versus united states, which was another prohibition case where the government had wiretapped the phones in the defendants' h

ouses. in that case, mcreynolds voted for the government. and it wasn't that he changed his mind about prohibition, he wrote it because the government made it clear that the prohibition agents in the wiretaps didn't trespass, so they do not enter the private space. on the public side was justice brandeis. brandeis understood the public/private framework, but unlike mcreynolds, he valued public rights over private rights. he voted for the government in carroll because he appreciated the government need for motor vehicles, which are really dangerous -- they are dangerous now too -- at that time. a national movement on street and highways for what is going on at the same time of the government are the supreme court deciding the case. i want to note here that scholars had been confused or puzzled by brandeis's carroll

vote in light of his vote in olmsted. his dissent was the very first time that the supreme court opinion mentioned the right to be left alone, that is, the right to privacy. so the question that is asked is why did brandeis appreciate the privacy when the government eavesdropped on a phone conversation, but not when it search a car? his famous article provides a clue. he wrote that the right to privacy was not absolute and did not prohibit regulations that were in the public's interest. you see the sphere shifting again. and with new technologies, brandeis feared that privacy rights were threatened and he was a technophobe. he almost wrote in his olmsted dissent that "with the advent of television, it would be possible to appear into the inmost -- to peer into the inmost

recesses of the home." but as a law clerk, who went on to become a second circuit judge convinced him that televisions don't work that way, although i think they work that way today. back then, the government could not look through televisions into people's homes. so this technophobia extended to cars. he hated cars, never owned or drove one. so he never came to appreciate the car as a new private space like most americans who have embraced automobility. they had to be regulated, which meant that there was no limit on the government's right to seize and search vehicles without a warrant, which brandeis made clear in a concurring opinion he roaches two years after carroll. -- opinion he wrote just two years after carroll. so as you can see from their positions, the problem with the public/private framework was that they could not take into account both the public and private aspects of a car. it was one or the other. but individuals had to have some

rights in their cars, even when they traveled on public roads, and the government needed to have the ability to investigate and enforce its laws. the public/private distinction offered no guidance for balancing individual rights for -- rights and the public's interest. so what did chief justice taft do, who wrote the opinion in the carroll? what he did is he did away with the public/private binary of classical legal thought and instead adopted a standard based on reasonableness. they did not prohibit all search and seizures, just unreasonable ones. so, rather than asking whether a car was public or private, he said the relevant question was whether their particular car search was reasonable. when taft explained that it was possible to get a warrant that it would be reasonable to require one, but if it wasn't possible to get a warrant, it would be reasonable not to require a warrant. at this point in the opinion, it

would seem that reasonableness depended on whether there was time to get a warrant. but that wasn't the rule of the carroll decision. taft created an entirely new rule for cars and the ruling is right here. -- and the holding is right here. the search and seizure of a car is reasonable and constitutional if an officer has probable cause for believing the automobile has contraband liquor therein that is deemed illegally transported. taft admitted in a letter to the his son that the case created a rather new principle, and even more revealingly, he wrote to another justice "i know what you say and i will try to steer away from the distinction that we have a new law with constitutional construction, but are only adapt during old principles and applying them to new conditions."

so let me explain how this carroll decision was a new rule. first, it allowed prohibition agents to stop and search a car if they believed that they had reasonable or probable cause. it allowed the police rather than a neutral magistrate to determine cause in the first instance. second, carroll applied a lower standard. at the time it was decided, most prohibition cases were misdemeanors. so what carol did was lower the standards of knowledge to reasonable belief. so the upshot is that instead of creating a narrow exception for these circumstances, it instead allowed the police to act based on their belief or judgment. that is, it authorized discretionary policing.

so one judge criticized michigan's ruling which is called the automobile exception, by saying we will have officers running where no one can take them, speeding about in a for probable cause. of course a defendant could later argue that there was no probable cause to justify the vehicle stop. but critics on a weak spot in the way that the reasonable standard work. as you can see in this op-ed, it could be stretched by the officers to cover any set of circumstances, and the officers reasonable belief account would receive additional charity. this is basically the phenomenon of confirmation bias. it was guilty people who challenged car searches. innocent people didn't have any evidence to challenge or to exclude, and it made it easier for a judge to conclude that the

officer's belief was reasonable if there was evidence according the officer's belief. alabama went so far to say that if an automobile is found to be transporting contraband in passing upon the reasonableness of the search. whether the reasonable standard would serve as a restraint on the police depended on how closely courts would scrutinize police accounts of reasonable cause. the carroll decision suggests the courts do not have to look too closely. the court agreed that the government had probable cause if there was alcohol and are because the agents knew what the carroll brothers looked like, they knew what kind of car they drove, and that they were on the road between detroit and grand rapids, a well-known route for transporting alcohol from canada. it overlooked the testimonies of someone who said that they actually had no reason to suspect that the carroll

brothers, at that moment, were transporting liquor. as justice mcreynolds sums it up, that because a man wants to deliver up but did not, he may be arrested when he ventures to drive an automobile on the road to detroit. so carroll was an important turning point. first, shifted the fourth amendment analysis from classical legal thoughts of -- thought, categorical analysis, to an individualized determination of reasonableness. was the particular search reasonable? it centered the inquiry on the officer's point of view on his belief that the search was justified. and as the courts gave decision -- gave deference to the police, they expanded their discretionary authority. let me fast-forward to the 1948

term, when the supreme court heard fourth amendment cases. two the justices were clearly thinking about these two cases together, even though they were not consolidated. both cases were argued on the same day and the decisions came out on the same day. it was clear the justices had a hard time deciding these cases because they were heard early in the term but the decisions came on the last day of the term in june. if we look at the two cases together, it reveals how it they understood the boundary between constitutional policing and unconstitutional, arbitrary policing. in the first case, wolf versus colorado, law enforcement officers received an anonymous telephone call about a woman suffering from a botched abortion, which was a crime at the time. investigators found the name of the woman, who gave the name of a chiropractor. they then rated wolf's office -- raided wolf's office.

the justices agreed this search violated the fourth amendment. the opinion explains that the knock at the door as a prelude to a search without authority of law, that is, without a warrant, but solely on the authority of the police, violated the fourth amendment and due process. so even though a dr.'s -- a doctor's office wasn't a house, the knock on the door conjured the image of a home. according to this opinion, this warrantless entry was reminiscent of totalitarian governments. recent history is nazi germany -- this is 1949 -- and it was to be condemned as a violation of human rights enshrined in the history of basic constitutional documents of english-speaking peoples. given the importance of the fourth amendment to a democratic society, the supreme court

incorporated the amendment through the due process clause, meaning that, although the fourth amendment didn't apply to the states, it was applicable to the states through the due process clause. so incorporation has huge federalism implications, but wolf is only a semi-famous case because incorporation didn't make too much of a difference since every state already had an analogous fourth amendment provision in their state constitutions. the real issue in wolf was whether the exclusionary rule would also apply to the states, would also be incorporated. the problem was this remedy of the exclusionary rule wasn't in the text of the fourth amendment, and i won't get into the debate here, which was really contentious, but a majority on the court decided it would not be incorporated. 12 years later, the court would change its mind about this, which i will get to in a minute. the important point here is the court was unanimous that the police acted arbitrarily because they searched the abortion

dr.'s office, a private space, without warrant. that was wolf. the second case was brenda gerber versus united states. -- brinegar versus united states. federal investigators recognized a coupe belonging to a man. i got this from his granddaughter, who had no idea her grandfather had a u.s. supreme court case and was convicted as a bootlegger. he did not touch alcohol in his later years. so the fbi -- or the federal investigators recognized him, who had a reputation for hauling liquor. he had a reputation because there was an earlier case that went all the way to the state supreme court for this same reason. so based on his reputation and the observation that the rear end of the car appeared weighted down, the agents forced his car to the side of the road, searched it, and found 13 cases

of liquor, obviously without a warrant. it might be puzzling that the supreme court would agree to hear this case, because according to their opinion, brinegar was indistinguishable from carroll on the material facts. the supreme court does not hear cases involving straightforward applications of precedent unless the justices have reservations about the precedent. and that was the case here. to most of the justices, what the officers did seemed to smack of arbitrary policing, but the problem was that carol had said -- that carroll had said similar actions has satisfied the reasonable standard. the opinion recognized the troublesome line posed by both cases is one between mere suspicion and probable cause. i was so shocked when i first read this that i had to read it a few times because this is a stunning admission that the facts in both cases might have fallen to a short -- have fallen

just short of probable cause. in deciding this, the justices could either rule the carroll standard was wrong and overrule carroll for conclude that the application of the standard was wrong. they did not want to overrule carroll because requiring a warrant would hinder law enforcement too much, but some justices felt if they held that the application of the standard was wrong, that would be tantamount to overruling carroll, and that was justice rutledge's view. he indicated in the first conference -- this is the conference memo -- rutledge agrees this is the carroll case they were overrule -- they will overrule. and he voted to reverse that is him in the second row. i went to note here justice jackson's vote. he voted to affirm the conviction. justice rutledge wrote justice jackson a memo that -- if you

can read the handwriting, after occupying both halls purse along, he has finally come down on one and he thinks carroll is controlling here. he changed his mind. he first decided he was going to overrule and now he is deciding that carroll was controlling despite his initial views. justice jackson was also torn. he initially voted to affirm the conviction under carroll and was tasked for writing an opinion for the court. his opinion, draft opinion, ended up becoming a dissent. he had just returned as a prosecutor at nuremberg and he declared that under controlled search and seizures, one of the most effective weapons in the arsenal of every arbitrary government. what is most interesting is how he argued to reverse the conviction. he wrote that when a car is forced off the road, summoned to a stop by a siren and brought to a halt under such circumstances as are here disclosed, we think officers are then in a position

of one entering a home. so to put some limits on the police on the road, he has to analogize to a home. but a majority of the justices did not find this analogy so persuasive. according to justice rutledge, who ended up writing the opinion for the court, brinegar and carroll involved the use of public highways, and this did not involve -- no problem of searching the home or -- or place of privacy was presented. in these situations, it was reasonable to give some leeway to the police even if they made some mistakes. today, courts still cite brinega r for the proposition that in dealing with probable cause, we deal with probabilities, meaning the police can be wrong. to sum up, it fell under the

public sphere, where judges would defer to the police's discretion even if they had misgivings about it. so placing wolf and brinegar side-by-side, as the justices did, it is clear the line between public and private, cars and houses, mattered for deciding when the fourth amendment would require an officer to get a warrant. it also mattered for determining when the police's actions are considered arbitrary or not. so the history of cars changes our understanding of fourth amendment history. the standard history, the history i learned in law school, focuses on the warren court's due process revolution, which was said to have started in 1961 when the warren court created a national standard of criminal procedure under the due process clause. in other words, the supreme court begin policing the police and creating more rights. and in this standard narrative of the due process revolution, the warren court is the protector of individual rights,

particularly the rights of minorities and the poor. but i argue in my book that the standard narrative only tells part of the story, the private side. the landmark fourth amendment cases that extended more rights involved the private sphere, not the public spirit. i mentioned wolf versus colorado, which incorporated the fourth amendment. the more famous case was mapp ve rsus ohio, decided in 1961, which incorporated the exclusionary rule and launched the due process revolution. in this case, the police searched a home without a warrant, a classic fourth amendment violation of the private sphere. there were many more, thousands more public sphere car cases where the court deferred to the police. over the 20th century, the reasonable standard functioned as a differential standard that -- as a deferential standard

that gave the police even more power. from the perspective of cars, the due process revolution was not meant to be a revolution against the police's powers. and this mattered. in the 20th century, when american society became an automotive society, the fourth amendment that mattered was the automotive fourth amendment. nearly everyone drove or rode in a car and the traffic stop was and still is the most common encounter between individuals and the police, as these quotes observe. as early as 1945, you see the captain of the pennsylvania state police saying traffic law enforcement provides many contacts between citizens and police. 1966, a yale law professor talks about how traffic stops are the chief point of contact between individual citizens and of the law. and by 1997, a stanford law professor writes that most americans have never been arrested or had their homes searched by the police, but almost everyone has been pulled over. a poet once described the

automobile as an essential , can stitch it if -- constitutive feature of american life. so much so that many difficult questions about the limits of policing powers, whether or not to do with cars, it frequently came up in the context of a vehicle or traffic stop. these are questions my book covers in more detail. let me end by answering the question i posed at the beginning of my remarks -- how did the meaning of freedom change when the symbol of american freedom was subject to a great deal of policing? if we look at fourth amendment law, freedom did not mean freedom from policing. it meant reasonable policing. and as judicial opinions often say when creating a new warrant exception for upholding the police's actions, reasonableness is the touchstone -- that's the word they use -- a touchstone of the fourth amendment. this is a standard the carroll decision established for a modern automotive society.

and i will end there to turn it over to jen for the q&a portion of our lunch. jim: thank you, professor seo. this is fascinating. we will be taking questions from the audience. if you have questions, please type them into the q&a section and we will get to as many as we can. to get started, one of the images on the screen we saw was frank sinatra's driver's license. where did you get that? prof. seo: the internet. the internet has a lot of great images. when you are doing a history presentation, a lot of images are in the public domain now, which is great. and also, government records are in the public domain as well.

james: that was great. i thought it must have cost you a pretty penny if you actually had owned it. [laughter] prof. seo: that would be pretty cool. james: you mentioned brandeis's fear of technology and you alluded to the fact that he might not have been entirely wrong. he was wrong at the time. of course, televisions being able to peer into your home. i think judge finley correctly pointed out that is not how they work, but where do you see the privacy interests going in that regard when we find on our cell phones, for example, the pop-up advertisements that come very close to conversations that you have just been having with a friend? you see more regulation there and invasions of privacy there

in trends of the law? prof. seo: that is a really interesting question for me as well because the epilogue of my book discusses very briefly technology and this history. so one thing is that questions about privacy with modern technology, like smart phones, gps devices, drones, all raise questions about whether the public private distinction -- and the answer is the same answer the automobile posed -- it is both. people disclose so much of themselves using technology, social media for example. the third-party doctrine says that, when we disclose information to third-party companies, like internet companies, we don't really have

privacy expectation anymore. so there is a lot of public aspects of modern technologies and a lot of people are also advocating for government regulation of internet of things, of the world wide web, of a lot of making arguments for the public sphere. at the same time, there are private aspects. there are people who expect privacy in their chads, the text messages, the pictures that they take on their smartphones. the overarching theme, one of the themes of my book, is in modern society, it is neither this or that, it is both public and private. and that is a really hard question, is how do courts and the law balance the public and private aspect of everything? james: fascinating. i think you are right. we will see more cases

challenging those lines and testing those lines and how they are applied. do we have other questions? >> i just have some in. james: ok. if you pair with me, i will look for the q and a. i don't have them on my screen now so if i can borrow yours for second. bear with me one second. all right. thank you. question -- how did you come to work on automobiles and the fourth amendment? prof. seo: i like to say that i became an accidental historian of the automobile. i was -- i went to graduate school to get a phd in history to study the war on drugs, and i was interested in constitutional law, and so the fourth amendment

, like i explained it, it is the main constitutional provision that governs the police, and a lot of fourth amendment challenges come up in the context of drug enforcement. and so i wanted to start from the very beginning. i read every single fourth amendment case from the very beginning, through the mid 20th century, when they all started sounding similar. then i was more selective about the fourth amendment cases that i read. that is when i realized fourth amendment cases were rare until the first two decades of the 20th century, and that is when i realized a lot of the cases involved cars, and i think it says something about american society becoming a car society when the history of cars was so much part of the history on the war on drugs, that those two histories are connected. so i became interested in looking at the history of cars, and traffic, actually, by accident because i was interested in the world drugs.

-- in the war on drugs. james: that's great. how, if at all, did the automotive fourth amendment influence application of the fourth amendment in the private context of this, in the home? how did -- what was the influence of it in the private context of the home? prof. seo: i would say the influence was not directly through case law. informing the private side of fourth mimic cases, but through -- fourth amendment cases, but through social phenomenon. my book argues that because of cars and a need for traffic laws and thus a need for traffic law enforcement, that actually was the most significant reason for the development of modern policing as we know it today. modern policing becoming professionalized, weaponized,

given increasing deference, and i think it is the development of professionalized policing that has informed fourth amendment jurisprudence even in the private sphere. and so i mentioned how in the common law, there is no warrant exception for searches of homes. the first exception for hot pursuit of a felon appears in the mid 20th century, and by then, definitely police are known as professionalized crime -fighters. i think it is a development -- the social history of policing as a profession -- that effects or informs the private side of fourth amendment law. james: thank you. we have time for one last question here. and i will use this one. can you make any suggestions on how your book could be used with high school students who are researching issues around driving while black? you mentioned i think at the outset how it can be used in

discriminatory ways. prof. seo: yes. so i love this question because , when i wrote this book, i intentionally wrote in a very accessible way because i wanted students to read it. and so i do think it is readable and accessible to a high school -- at a high school level, and, if excerpts had to be chosen, i would definitely choose the introduction, and one chapter. and it depends on what the teacher wanted to emphasize. lots of students love chapter one because it deals with the problem about, once laws are enacted, who will enforce them? which is a basic question i wish every policymaker would think about when they enact laws. this is something i thought about with covid, when they were

enacting all these regulations, no more than six or 12 people in your home at thanksgiving. i was thinking, who is going to enforce that? chapter one is really about the relationship between laws on the books and enforcement. chapter two is about the history of policing, which a lot of students also like. but if a teacher wants to focus on driving while black, chapter six offers a history of driving while black. james: thank you so much. just a wonderful presentation and a fascinating topic. and i want to remind our audience members, you can obtain signed copies of professor seo's book, policing in the open road. -- policing and the open road. they are available in the society's gift shop. i will hold up the book for your visual association with it. we hope you will purchase it. it is a very thoughtful read and

professor seo has given a great presentation today. i think you will find the book equally fascinating. we are very grateful for your time today, and thank you all for participating. prof. seo: thank you for coming and for inviting me. i really enjoyed it today. [captioning performed by the national captioning institute, which is responsible for its caption content and accuracy. visit ncicap.org] [captions copyright national cable satellite corp. 2021] ♪ >> today, on the civil war, the

digital project black virginians in blue, which details the story of african americans who joined the union army to fight for emancipation. here is a preview. >> black virginians and blue is a project -- in blue is a project that started in 2016. i want to say it was dr. farren's idea come in fact, and it came from some early research by a local historian, the guru of all things civil war, irvine george, who works in the special collections library. wonderfully generous, shared his initial research into this question, how many were there, local black men who were union sailors or soldiers, and in fact, we found there were 256

men who enlisted in the union army or navy. 250 in the army, the u.s. colored troops, and six in the navy, and what started out as a civil war project really became a project about african-american history in the 19th century, social history. it was important to me that in writing biographies of these men that we also included a lot of details about their family, their nuclear families, so we wrote biographies not just of the men but of their spouses as well. we wanted to give you those anecdotal biographies and essays to put those individual stories in context just like dr. verren did so eloquently, and we also wanted to not just give you our version of the story, like our distilled biography, our essay

that we compiled from the evidence. we have probably tens of thousands of images -- 10,000 images or so of photos that we took at the national archives that we downloaded of service records or newspapers, etc., and we just put up a selection of the best, they gave you the voice of these people so it is not just me telling you what happened to james taylor. you get to hear his voice as well. >> learn more about the black virginians in blue project today at 6:00 p.m. eastern, 3:00 p.m. pacific here on american history tv. >> if you like american history tv, keep up with us on facebook, twitter and youtube. learn about what happened this day in history and see preview clips of upcoming programs. follow us @cspanhistory. you are watching american

history tv, covering history c-span style, with event coverage, eyewitness accounts, archival films, lectures in college classrooms and visits to museums and historic places, all weekend, every weekend on c-span3. >> tonight on lectures in history, university of california-riverside professor catherine allgor teaches about the lives of women during the american revolution and the early republic. here is a preview. >> the battles of the revolution were fought over the same landscapes and often women left at home found themselves being overrun by one army and another. some of these women found the new responsibility part of this a liberating experience. when mary bartlett, the wife of a new hampshire congresswoman, josiah barlett -- yes, that is the josiah barlett martin sheen is named after -- took over her

husband's duty in 1776. she would write to him and report on your farming business. she was very unsure about her ability to manage his affairs, but she did great and, two years later, began to take pride in her work. her letters to josiah became -- began referring to it is our business. other women did not find in your responsibilities as a new opportunity for self enrichment. they complained. i have to admit, i like to complainers because i think i would be one, because they are so colorful. as mary foster side to her husband isaac, way at war, every trouble however trifling i feel with double weight in your absence. for sally logan fisher, her quaker husband arrested and in exile, life was a fiery trial and it made her feel forlorn and desolate and the world appears like a dreary desert without almost any visible protecting

hand to guide us from the ravenous wolves and lions that prowl about for prey. she is in connecticut, not the jungle, so i like the complaining. after the war, scholar mary beth norton noted two to the letters -- in the letters of the women, both the complainers and comply -- compliers. they stop being self temperature tour he, apologizing for being women, and owned their wartime experiences, whether they complied or complained, supported the war or not. when it was over, they realized they had been through war as truly as if they had been on the battlefield, and some of them had. they had survived it and were not going to let the wind take that -- not let anyone take that accomplishment away from them. as a result of that baptism by fire, the wives, mothers and

daughters of the revolutionary generation might well have assumed things would have changed after the war. professional writers like mercy warren, judith murray and ordinary women wrote and debated about the role that women were going to play in the future. up next we visit this smithsonian american art museum where an exhibit features paintings and photographs created during the civil war. curator eleanor jones harvey describes, how art was influenced by the conflict and how the 19th century public saw symbolic significance for the war and landscape paintings and genre paintings or scenes of everyday life. we begin with a press briefing about the exhibit and then we follow along for a tour of the galleries. this is part one of a two-part program. this is a project that's been gestating for an awfully long time in the wake of the