The meaning of the rights enshrined in the Constitution provides a critical baseline for understanding the limits of government action—perhaps nowhere more so than in regard to the Fourth Amendment. At the time it was adopted, the Fourth Amendment prohibited the government from entering into any home, warehouse, or place of business against the owner’s wishes to search for or to seize persons, papers, or effects, absent a specific warrant. Consistent with English common law, the notable exception was when law enforcement or citizens were pursuing a known felon. Outside of such circumstances, search and seizure required government officials to approach a magistrate and, under oath, to provide evidence of the suspected offense and to particularly describe the place to be searched and persons or things to be seized. Scholars’ insistence that the Fourth Amendment does not entail a general protection against government entry into the home without a warrant does more than just fail to appreciate the context. It contradicts the meaning of the text itself, which carefully lays out the conditions that must be met before the government may intrude. Reclaiming this meaning is essential for understanding the scope of the original Fourth Amendment and for ensuring a doctrine that reflects fidelity to the founding principles.
As a term of art, “originalism” is a relative newcomer to constitutional debate. It emerged in the conservative backlash to the Warren Court and the dialectic that ensued over the appropriate role of the judiciary in interpreting and applying the Constitution.1 Nevertheless, the basic concept—understanding the text according to its original meaning or the intent of those who introduced the provisions—is not a new idea. For centuries, lawyers, judges, and scholars have recognized the importance of discerning the meaning of the law at its inception.2 In 1988, the Department of Justice (DOJ) made its adherence to this approach explicit, arguing that fidelity to the original meaning of the Constitution was neither conservative nor liberal. It embodied “a jurisprudence faithful to our Constitution.”3 The DOJ’s Office of Legal Policy directed officials, when text may be ambiguous or vague, to look to sources that indicated “the intent of those who drafted, proposed, and ratified that provision (i.e., the Founders).”4 Accordingly, all briefs were to “clearly set out the text and original understanding of the relevant constitutional provisions, along with an analysis of how the case would be resolved consistent with that understanding.”5
In the ensuing decades, originalism has become an important mode of constitutional interpretation.6 It has been the deciding factor in Supreme Court decisions.7 It elucidates the meaning of the Constitution, and, like the Founding, reflects all sides of the political spectrum. Originalism has been embraced by conservative justices, such as William Rehnquist, Antonin Scalia, and Clarence Thomas.8 And it has been applied to a range of traditionally liberal causes, with civil rights,9 as well as the Court’s decisions in Roe v Wade10 and Brown v Board of Education of Topeka,11 defended on originalist grounds.
The meaning of the rights enshrined in the Constitution provides a critical baseline for understanding the limits of government action—perhaps nowhere more so than in regard to the Fourth Amendment. The Amendment prohibited the government from entering into any home, warehouse, or place of business against the owner’s wishes to search for or to seize persons, papers, and effects, absent a specific warrant. The only exception was when law enforcement or citizens were in active pursuit of a known felon.12 Outside of that narrow circumstance, the government was prohibited from search and seizure absent appearing before a magistrate and, under oath, providing evidence of the suspected offense and particularly describing the place to be searched and persons or things to be seized.
Over time, the essence of the Amendment has at times become lost, risking diminution of the rights that existed at the Founding. In 1994, for instance, Professor Akhil Reed Amar argued in the Harvard Law Review that “[t]he core of the Fourth Amendment . . . is neither a warrant nor probable cause, but reasonableness.”13 Amar grounded his argument in the text: “We need to read the Amendment’s words and take them seriously: they do not require warrants, [or] probable cause, . . . but they do require that all searches and seizures be reasonable.”14 Amar suggested that the modern Supreme Court had erred in assuming a link between the right of the people to be secure against unreasonable search and seizure and the requirement that no warrant issue but upon probable cause, particularity, and oath.15 The assumption that search and seizure could take place only pursuant to a warrant was “only one of several possible ways of understanding the relationship between the” two demands.16 Amar advocated reading the clauses separately, looking to exceptions to the warrant requirement as evidence that the Founders did not contemplate that warrants should always issue, before asserting that “[t]he common law search warrants referred to in the Warrant Clause were solely for stolen goods.”17
Amar’s argument raised important questions about the relationship of the clauses within the text of the Fourth Amendment. It also became influential, with about a dozen lower federal and state court opinions later citing his reasonableness proposition.18 Some scholars (including Professor Michael Stokes Paulsen and Professor William J. Stuntz) endorsed his position.19 But many more criticized the article, suggesting that it was not sufficiently grounded in historical sources and therefore had failed to take account of contrary evidence.20
As a matter of originalist scholarship, the critiques rest on strong ground. At the time of the Founding, prominent scholars and public opinion embraced the position that—outside of active pursuit of a known felon—the Crown could not forcibly enter a subject’s domicile for purposes of search and seizure without a specific warrant. The only way that officers could legally demand access to the home was with a particularized showing under oath. The clauses that cemented this understanding into the US Constitution were deeply contextual: “[t]he right of the people to be secure . . . against unreasonable searches and seizures”21 meant that the government could not enter at will, and that general warrants—under which the government could gain entry—would be prohibited. For a specific warrant to be valid, in turn, it had to meet the requirements of the second part of the Fourth Amendment.
Part of the problem with Amar’s argument appears to be that it relied in significant measure on a lecture presented in April 1967 by Professor Telford Taylor at the Ohio State University College of Law, which he published two years later as part of a book.22 Based on minimal historical documentation, Taylor argued that the Framers were not concerned about warrantless searches—and that the Fourth Amendment required only a reasonableness standard.23
In addition to Taylor, in support of the claim that the common-law search referred to in the Warrant Clause related solely to stolen goods, Amar referenced a 1765 pamphlet written by John Almon, the “Father of Candor,” stating that to retrieve stolen goods, a sworn statement must be provided to a magistrate and a warrant must be obtained.24 This, Amar suggested, demonstrated that the Warrant Clause was limited to stolen items.25
The errors in the argument are clear. First, simply because a sworn statement must be made to retrieve stolen goods does not mean that the same is not required for searches related to other matters. Some of the most well-known search cases at the time, for instance, centered on seditious libel, not stolen goods—even as other statutes provided for searches for such disparate objects as counterfeit coins and indigents wanted for service on the high seas.26 Second, the fact that a warrant was required under certain conditions (that is, those outlined in the pamphlet) does not imply that in all other circumstances a warrant would not be required.
Using a similarly faulty ratiocination, Amar cited a statute passed in 1789, which allowed naval inspectors to enter ships without warrants to search for and to seize goods violating customs.27 He noted that “[o]ther provisions of the 1789 Act authorized, but did not require, warrants to search houses, stores, and buildings.”28 Since the statute did not explicitly prohibit warrantless entry, he reasoned, warrants were not necessary. The absence of a prohibition, however, does not imply the presence of permission—particularly when provision is made for the conditions under which a home could be searched. Parallel cases in English law, moreover, underscored the necessity of customs officers and others first obtaining a warrant, supported by probable cause and particularly describing the place to be searched, before the Crown could enter into any private residence.29 In the absence of a warrant, the actions of the government official amounted to a trespass.
Despite the shortcomings of Amar’s argument, some of its most effective critics have also made assumptions about the original meaning of the Fourth Amendment that fail inspection. Five years after Amar published his piece, Professor Thomas Davies offered one of the most sustained critiques, pointing out that the Framers never contemplated that the government would attempt to conduct warrantless intrusions.30 They could not have anticipated that the word “unreasonable” would be transformed in future centuries into a meter for the validity of something that would not have been permitted in the first place.31
Davies’s account differed in subtle but important ways from two prior histories of the Fourth Amendment that embraced a warrant preference. In 1937, Professor Nelson Lasson published a manuscript in which he detailed the role of James Otis’s oration in Paxton’s Case,32 the controversy surrounding John Wilkes in England, and the Townshend Acts as precursors to the Fourth Amendment.33 Lasson suggested that the Founders’ concerns about general warrants, illustrated in each of these cases, had broadened by 1789 into a more comprehensive principle34 of freedom from unreasonable search and seizure.35 He concluded that the first clause of the Amendment encompassed an ideal, while the second clause banned general warrants.36
In 1990, Professor William Cuddihy supplanted Lasson’s work with a meticulous history of the Fourth Amendment.37 Like Lasson, Cuddihy emphasized the initial phrase as the more profound statement: “The amendment’s first clause, which explicitly renounces all unreasonable searches and seizures, overshadows the second clause, which implicitly renounced only a single category, the general warrant.”38 He concluded, “The framers of the amendment were less concerned with a right against general warrants than with the broader rights those warrants infringed.”39 To consider the Fourth Amendment as a prohibition on general warrants “disparages its intricacy. The amendment expressed not a single idea,” Cuddihy wrote, “but a family of ideas whose identity and dimensions developed in historical context.”40
Davies faulted Lasson and Cuddihy for neglecting to clarify the basic question: whether or in what circumstances a warrant is required.41 According to Davies, this failure had given Amar an opening to suggest the absence of a relationship between the clauses.42 Davies went on to respond to Taylor and Amar in two ways: first, by noting the dearth of historical support for their claims; and second, by offering evidence that what the Framers objected to was not general warrants per se, but the allocation of the discretionary exercise of power to petty officers.43 Providing such officers with search and seizure powers outside of any warrant would have been abhorrent—thus, warrantless authorities were never on the table.44 Davies noted that the Founding generation “did not have a diffuse concern about the security of person and house.”45 Why? Because “the common-law rules regarding search and arrest authority provided sufficient protection against unjustified intrusions.”46 The real concern, Davies argued, was a common-law vulnerability: the potential for future legislation to make general warrants legal, thus undermining security against government intrusion.47 This, he reasoned, is why the Fourth Amendment was initially inserted into Article I, § 9 as a limitation on the legislature.48
Davies is correct that, at the Founding, there was no such thing as a “standard of reasonableness,” such as has marked the Fourth Amendment discourse since the 1967 case of Katz v United States.49 Careful historians could hardly conclude otherwise. As this Article demonstrates, Amar and Taylor are simply wrong on this point. Taylor’s further claim, echoed by Amar, that the Framers were unconcerned about warrantless intrusion is also unsupported by history. The Founders were worried about all intrusions—and no warrant lacking the appropriate particularity could overcome the presumption against invasion of the home. Amar is similarly incorrect that, as a result, reasonableness—and not a warrant requirement—lies at the heart of the Fourth Amendment. Reasonableness does lay at the heart of the Fourth Amendment, but what it meant was that, outside of apprehending a known felon, a warrant would be required.
Where Davies (and, indeed, Lasson and Cuddihy) errs is in failing to understand the first clause as itself restricting government entry in order to prevent promiscuous search and seizure.50 As the Supreme Court noted in 2001, “[t]he touchstone of the Fourth Amendment is reasonableness.”51 What “unreasonable” meant in the seventeenth century was “against reason,” which translated into “against the reason of the common law.” Warrantless entry, as well as general warrants (warrants that failed to specify the person, crime, or place to be searched), violated the reason of the common law and were therefore unreasonable. Davies is correct that the clause did not mean what it has come to be understood as meaning in a relativistic sense: an evaluation of what could be considered more or less reasonable. This interpretation untethers the Fourth Amendment from its original meaning, undermining rights that the Framers sought to protect.
This Article sets the historical record straight. The proper way to understand the Fourth Amendment is as a prohibition on general search and seizure authorities and a requirement for specific warrants. The first clause outlaws promiscuous search and seizure, even as the second clarifies precisely what will be required for a particularized warrant to be valid. The government could not violate the right against search and seizure of one’s person, house, papers, or effects absent either a felony arrest or a warrant meeting the requirements detailed in the second clause. In making this argument, the Article provides a detailed narrative of the broader context of the meaning of the Fourth Amendment, examining the writings, laws, and legal opinions that laid the groundwork for its inclusion in the Constitution.
Part I begins with the English experience, which embraced the premise that an Englishman’s dwelling was his castle. The common law recognized only a few, limited conditions under which the Crown could enter the home absent a warrant. Efforts to get around common-law prohibitions by passing statutory measures that allowed for the issuance of general warrants created increasing friction between English subjects and the Crown, leading scholars and jurists to reject indiscriminate search and seizure. A notable exception was in the context of felony arrest (during apprehension of a known felon, or in the course of the hue and cry).52
Part II of this Article turns to the colonial experience, which reinforced the inherited discourse. Reflecting the sanctity of the home, outside of limited circumstances, warrants were required for the government to enter. To obtain greater access, officers of the Crown increasingly turned to general warrants. As in England, it was not that such instruments did not exist—it was that the government’s expanding use of them spurred the colonists to resist British rule.
The War of Independence was fought in part because of the Crown’s effort to exercise writs of assistance, a form of general warrant wherein government officials failed to specify the precise place or person to be searched, or to provide evidence under oath to a third-party magistrate of a particular crime suspected. In the shadow of the French and Indian War, Britain had begun to make ever-greater use of the writs, sowing the seeds of revolution. Otis’s argument in Paxton’s Case set the stage.53 President John Adams later reported, “Then and there was the first scene of the first act of opposition to the arbitrary claims of Great Britain. Then and there the child Independence was born.”54 The nascent states went on to prohibit general warrants in their state constitutions.55 Outside of active pursuit of a known felon, no forcible entry into the home would be countenanced absent a specific warrant.
Part III details how a number of the states ratified the US Constitution only on the condition that the document would be amended. A prohibition on indiscriminate search and seizure figured largely in the debate. The object was to prevent government officials from intruding upon the sanctity of the home unless officials could present evidence, under oath to a magistrate, of a crime committed. The court would then have to issue a warrant under its own seal, particularly describing the place to be searched and the individual on whom the warrant would be served. The Founders’ primary concern was that the government not be allowed free rein to search for potential evidence of criminal wrongdoing. This concern reflected a close relationship between the interests encapsulated in the Fourth and Fifth Amendments. The Supreme Court subsequently tried to capture this relationship in the mere-evidence rule. Although later set aside as unworkable, the rule was consistent with parallel English cases and the animating ideas behind the Fourth Amendment.
As Part IV recognizes, the debates and discussions surrounding the right to be secure against unreasonable search and seizure are notable for what they did not include. They did not include exceptions for treason or threats to the government. They did not allow for suspensions or violations of the general rule to collect intelligence, to enforce customs laws, or to collect revenues. It was any intrusion in one’s private sphere that the Framers sought to confine within narrow bounds.
It would be difficult to do justice to the full range of arguments that animated the rejection of warrantless search and seizure, general warrants, and specific warrants lacking the requisite particularity. Yet similar themes reverberate in English and American treatises, legal opinions, pamphlets, and orations. The right to be secure in one’s home was one of the principal concerns, accompanied by the right to a private sphere within which thoughts, beliefs, writings, and intimate relations were protected from outside inspection. The Founding generation voiced concerns about the harms that could ensue from giving the government access to information and thus providing officials with the power to head off political or religious opposition. Information obtained could be used to embarrass citizens or to harm their relationships with others. Even when innocent in itself, information could be combined to make it look as though an individual were engaged in illegal activity. Structural harms could also follow, with the targeting of the other branches’ personnel, or of state and local leaders, undermining separation of powers and federalism.
This Article concludes by suggesting that, while living constitutionalism may embrace a meaning of “unreasonable” beyond that adopted at the Founding, it is on shakier ground when it may look to read the rights that existed at the time the Constitution was drafted out of existence. At a minimum, then, this means that outside of active pursuit of a known felon, the Fourth Amendment prohibits the government from violating the sanctity of the home to conduct searches or seizures absent a warrant, under a general warrant, or under a specific warrant lacking the requisite particularity.
- 1. See, for example, Robert H. Bork, Neutral Principles and Some First Amendment Problems, 47 Ind L J 1, 5–6, 8 (1971) (critiquing the Warren Court on the grounds that “[i]f we have constitutional rights and liberties already, rights and liberties specified by the Constitution, the Court need make no fundamental value choices,” and stating that “[t]he judge must stick close to the text and the history, and their fair implications, and not construct new rights,” as an attack on Griswold v Connecticut, 381 US 479 (1965)) (citation omitted). See also generally William H. Rehnquist, The Notion of a Living Constitution, 54 Tex L Rev 693 (1976) (criticizing living constitutionalism). In 1980, Professor Paul Brest responded with an article credited with coining the term “originalism.” See Paul Brest, The Misconceived Quest for the Original Understanding, 60 BU L Rev 204, 204 (1980). Academic debate followed. See generally, for example, Richard S. Kay, Adherence to the Original Intentions in Constitutional Adjudication: Three Objections and Responses, 82 Nw U L Rev 226 (1988); H. Jefferson Powell, The Original Understanding of Original Intent, 98 Harv L Rev 885 (1985).
- 2. See, for example, Gibbons v Ogden, 22 US (9 Wheat) 1, 188 (1824) (“[T]he enlightened patriots who framed our constitution, and the people who adopted it, must be understood to have employed words in their natural sense, and to have intended what they have said.”); Reynolds v United States, 98 US 145, 162 (1879) (“The word ‘religion’ is not defined in the Constitution. We must go elsewhere, therefore, to ascertain its meaning, and nowhere more appropriately, we think, than to the history of the times in the midst of which the provision was adopted.”); Ex parte Bain, 121 US 1, 12 (1887) (“It is never to be forgotten that, in the construction of the language of the Constitution here relied on, as indeed in all other instances where construction becomes necessary, we are to place ourselves as nearly as possible in the condition of the men who framed that instrument.”); United States v Lovett, 328 US 303, 321 (1946) (drawing an interpretive distinction between “the broad standards of fairness written into the Constitution (e.g. ‘due process,’ ‘equal protection of the laws,’ [and] ‘just compensation’),” and “very specific provisions of the Constitution,” which “had their source in definite grievances and led the Fathers to proscribe against recurrence of their experience”). See also Joseph Story, 1 Commentaries on the Constitution of the United States § 400 at 383–84 (Hilliard, Gray 1833).
- 3. Office of Legal Policy, Guidelines on Constitutional Litigation 1 (DOJ 1988).
- 4. Id at 3.
- 5. Id at 10.
- 6. During the Reagan administration’s second term, Edwin Meese was appointed attorney general. He gave a series of speeches in which he stated that originalism would guide the DOJ. One of the speeches, given at the American Bar Association’s annual meeting in July 1985, became widely reported and provided political salience to what had been largely insulated within the realm of legal scholarship. See generally Edwin Meese III, Speech before the American Bar Association, in Steven G. Calabresi, ed, Originalism: A Quarter-Century of Debate 47 (Regnery 2007). Justice William J. Brennan Jr responded, spurring further public debate that included additional public remarks by Meese. See generally William J. Brennan Jr, Speech to the Text and Teaching Symposium, in Calabresi, ed, Originalism 55 (cited in note 6); Edwin Meese III, Speech before the D.C. Chapter of the Federalist Society Lawyers Division, in Calabresi, ed, Originalism 71 (cited in note 6). See also Steven G. Calabresi, A Critical Introduction to the Originalism Debate, 31 Harv J L & Pub Pol 875, 875–85 (2008) (discussing all three speeches). The movement gained momentum as Meese brought young attorneys to the Office of Legal Counsel. Justice Antonin Scalia advocated a move away from original intentions and toward public meaning. See generally Address by Justice Antonin Scalia before the Attorney General’s Conference on Economic Liberties in Washington, D.C. (June 14, 1986), in Original Meaning Jurisprudence: A Sourcebook 101 (Office of Legal Policy 1987). In the 1990s, these ideas began taking root in academia. See, for example, Michael B. Rappaport, Reconciling Textualism and Federalism: The Proper Textual Basis of the Supreme Court’s Tenth and Eleventh Amendment Decisions, 93 Nw U L Rev 819, 823 (1999); Michael B. Rappaport, The Original Meaning of the Recess Appointments Clause, 52 UCLA L Rev 1487, 1493 (2005) (“The modern interpreter should read the language in accord with the meaning it would have had in the late 1780s.”). Around the turn of the century, “new originalism” emerged, centered on two tenets: the original meaning of the constitutional text equates to its public meaning (reflecting Scalia’s approach), and a distinction can be drawn between interpretation and construction. See, for example, Keith E. Whittington, Constitutional Construction: Divided Powers and Constitutional Meaning 1–7 (Harvard 1999); Keith E. Whittington, Constitutional Interpretation: Textual Meaning, Original Intent, and Judicial Review 1–16 (Kansas 1999); Randy E. Barnett, Restoring the Lost Constitution: The Presumption of Liberty 92–93, 121–25 (Princeton 2004) (describing the public-meaning understanding of originalism and distinguishing between interpretation and construction); Randy E. Barnett, An Originalism for Nonoriginalists, 45 Loyola L Rev 611, 620, 645 (1999); Lawrence B. Solum, Originalism and Constitutional Construction, 82 Fordham L Rev 453, 457 (2013) (distinguishing between constitutional interpretation and constitutional construction and advancing two claims about the latter); Lawrence B. Solum and Robert W. Bennett, Constitutional Originalism: A Debate 1–4 (Cornell 2011).
- 7. See, for example, District of Columbia v Heller, 554 US 570, 576–77 (2008) (interpreting the Second Amendment by employing the principle that “meaning . . . excludes secret or technical meanings that would not have been known to ordinary citizens in the founding generation”). For a discussion of why Heller was a particularly strong vehicle for originalism, see Lawrence B. Solum, District of Columbia v. Heller and Originalism, 103 Nw U L Rev 923, 925–26 (2009).
- 8. See Antonin Scalia, A Matter of Interpretation: Federal Courts and the Law 38 (Princeton 1997) (“What I look for in the Constitution is precisely what I look for in a statute: the original meaning of the text, not what the original draftsmen intended.”). See also generally Antonin Scalia, Originalism: The Lesser Evil, 57 U Cin L Rev 849 (1989); Rehnquist, 54 Tex L Rev 693 (cited in note 1). See also Nancie G. Marzulla, The Textualism of Clarence Thomas: Anchoring the Supreme Court’s Property Rights Jurisprudence to the Constitution, 10 Am U J Gender Soc Pol & L 351, 379 (2002) (describing Thomas as “an individualist . . . dedicated to an interpretative philosophy based on the text of the Constitution and its context”).
- 9. See generally, for example, Steven G. Calebresi and Abe Salander, Religion and the Equal Protection Clause: Why the Constitution Requires School Vouchers, 65 U Fla L Rev 909 (2013) (arguing that the Equal Protection Clause should be applied to religious discrimination based on the Clause’s original understanding).
- 10. value="10">410 US 113 (1973). For an originalist defense of Roe, see Akhil Reed Amar’s fictional “opinion” in Jack M. Balkin, ed, What Roe v. Wade Should Have Said: The Nation’s Top Legal Experts Rewrite America’s Most Controversial Decision 152, 152–69 (NYU 2005).
- 11. 347 US 483 (1954). See also Michael W. McConnell, Originalism and the Desegregation Decisions, 81 Va L Rev 947, 1131–40 (1995).
- 12. There was no exception for customs officers to search for contraband. See, for example, Bostock v Saunders, 95 Eng Rep 1141, 1145 (KB 1773) (de Grey) (recognizing an action in trespass against a customs inspector looking for contraband tea because the oath provided was not supported by probable cause, “as no evidence was given at the trial of any probable cause or ground of suspicion that tea was fraudulently concealed by the plaintiff, the jury found a verdict for him, and gave the whole damages in the declaration”). Warrants were presumptively required. Much later, the Supreme Court articulated the contours of hot pursuit in Warden v Hayden, 387 US 294, 298–300 (1967).
- 13. Akhil Reed Amar, Fourth Amendment First Principles, 107 Harv L Rev 757, 801 (1994). See also Akhil Reed Amar, The Fourth Amendment, Boston, and the Writs of Assistance, 30 Suffolk U L Rev 53, 55 (1996) (“[T]he [Fourth] Amendment does not require a warrant for each and every search or seizure. It simply requires that each and every search or seizure be reasonable.”); Akhil Reed Amar, Terry and Fourth Amendment First Principles, 72 St John’s L Rev 1097, 1106 (1998):
[T]here are several problems with [the] “warrantist” reading of the [Fourth] Amendment. First, it is not what the words of the Amendment say. Second, no Framer ever said that this is what the Amendment did or should mean. Third, no early treatise said that all warrantless searches and seizures were (even presumptively) illegitimate.
See also Akhil Reed Amar, America’s Unwritten Constitution: The Precedents and Principles We Live By 129, 178 (Basic Books 2012) (“The Fourth Amendment does not bar all intrusions upon privacy—only unreasonable ones.”); Akhil Reed Amar, The Law of the Land: A Grand Tour of Our Constitutional Republic 232 (Basic Books 2015):
[T]he [Fourth] [A]mendment does not require a warrant for each and every search or seizure. It simply requires that each and every search or seizure be reasonable. . . . Reading into [the wording of the first clause] . . . an implicit warrant requirement for all searches and seizures runs counter to text, Founding-era history, and common sense. Textually, as we have seen, the amendment contains no third clause explicitly stating that “warrantless searches and seizures are inherently unreasonable,” or explicitly barring all “warrantless searches and seizures.”
- 14. Amar, 107 Harv L Rev at 759 (cited in note 13).
- 15. See id at 762.
- 16. Id.
- 17. Id at 765–66. Amar elucidates his theory of why the Fourth Amendment took aim at stolen goods: “[O]nce extended beyond the limited context of the common law warrant for stolen goods, warrants had the potential for great evil.” Amar, 30 Suffolk U L Rev at 63 (cited in note 13). Because the warrant insulated officers of the Crown from tort claims, the purpose of prohibiting general warrants focused on stolen goods and related areas. In all other circumstances, judicial review would provide an effective check on whether a search comported with what he calls “common-sense reasonableness.” Id. See also Amar, 107 Harv L Rev at 777 (cited in note 13) (emphasizing the importance of juries in cases involving the Fourth Amendment). Amar’s interpretation is intriguing but problematic. It does not, for instance, explain why juries should not also provide an effective check for searches premised on stolen goods. Why have a warrant requirement at all if civil suits were such an effective way of protecting the right against promiscuous search and seizure? What protection could juries realistically perform in civil cases if the right to jury trial could be waived? See, for example, Patton v United States, 281 US 276, 301 (1930) (holding that “notwithstanding the imperative language of the statute, it was competent for the parties to waive a trial by jury” in civil cases). Warrants were used in a range of cases, from libel to pressing people into military service. What evidence is there that only the stolen goods warrants were the object of the second clause of the Fourth Amendment? If Amar is targeting stolen goods warrants because of the common-law understanding, then the prohibition on entry into the home must, by the same token, be read into the first clause. Amar’s argument also does not explain why a warrant would immunize or insulate an officer from civil suit. Juries could still consider malfeasance or ill motive, whether sufficient grounds to grant the warrant were present, and whether law enforcement stepped outside the contours of the warrant. In some sense this moves the inquiry to the judicial determination and the representation made by the law enforcement officer in question, but a check on government activity remains. This shift helps to explain the great debate over, and embrace of, judicial independence that marked the exchange between Brutus, Alexander Hamilton, and others. See text accompanying notes 657–65. If judges were to prove the gatekeeper, their independence would have to be guaranteed.
- 18. See State v Hemenway, 295 P3d 617, 635 n 12 (Or 2013); State v Ochoa, 792 NW2d 260, 272 (Iowa 2010); United States v Hernandez-Lopez, 761 F Supp 2d 1172, 1198 n 8 (D NM 2010); United States v Askew, 529 F3d 1119, 1151 n 1, 1158 n 6 (DC Cir 2008); In re Tiffany O., 174 P3d 282, 291 n 4 (Ariz App 2007); Christopher v Nestlerode, 373 F Supp 2d 503, 512 n 10 (MD Pa 2005); Weber v Oakridge School District 76, 56 P3d 504, 513 n 3 (Or App 2002); People v McKay, 41 P3d 59, 80 (Cal 2002); Tenenbaum v Williams, 193 F3d 581, 602–03 (2d Cir 1999); Buritica v United States, 8 F Supp 2d 1188, 1194 (ND Cal 1998); United States v Warren, 997 F Supp 1188, 1194 (ED Wis 1998); United States v Brown, 64 F3d 1083, 1085 (7th Cir 1995); Brown v State, 653 NE2d 77, 82 n 2 (Ind 1995); United States v Johnson, 22 F3d 674, 684 (6th Cir 1994). Although the Supreme Court has never directly cited Amar’s proposition, as late as 2004, Thomas, joined by Scalia, suggested that “the text of the Fourth Amendment [ ] does not mandate” a warrant requirement as part of the reasonableness requirement, “[n]or does the Amendment’s history, which is clear as to the Amendment’s principal target (general warrants), but not as clear with respect to when warrants were required, if ever.” Groh v Ramirez, 540 US 551, 572 (2004) (Thomas dissenting).
- 19. Michael Stokes Paulsen, Book Review, Dirty Harry and the Real Constitution, 64 U Chi L Rev 1457, 1491 (1997) (calling Amar’s work “an argument that needs, and deserves, to be taken seriously”); William J. Stuntz, The Substantive Origins of Criminal Procedure, 105 Yale L J 393, 409–10 (1995). See also Jeb Rubenfeld, Revolution by Judiciary: The Structure of American Constitutional Law 32–33 (Harvard 2005); Corey M. Then, Note, Searches and Seizures of Americans Abroad: Re-examining the Fourth Amendment’s Warrant Clause and the Foreign Intelligence Exception Five Years after United States v. Bin Laden, 55 Duke L J 1059, 1071 (2006).
- 20. See, for example, David E. Steinberg, The Uses and Misuses of Fourth Amendment History, 10 U Pa J Const L 581, 590–95 (2008); Roger Roots, Are Cops Constitutional?, 11 Seton Hall Const L J 685, 729–34 (2001); Thomas Y. Davies, Recovering the Original Fourth Amendment, 98 Mich L Rev 547, 571–90 (1999); Thomas Y. Davies, The Fictional Character of Law-and-Order Originalism: A Case Study of the Distortions and Evasions of Framing-Era Arrest Doctrine in Atwater v. Lago Vista, 37 Wake Forest L Rev 239, 263 & n 64, 417 n 593 (2002); Susan R. Klein, Book Review, Enduring Principles and Current Crises in Constitutional Criminal Procedure, 24 L & Soc Inquiry 533, 538–50 (1999); Louis Michael Seidman, Book Review, Akhil Amar and the (Premature?) Demise of Criminal Procedure Liberalism, 107 Yale L J 2281, 2294–2303 (1998); Tracey Maclin, The Complexity of the Fourth Amendment: A Historical Review, 77 BU L Rev 925, 929 (1997); Morgan Cloud, Book Review, Searching through History; Searching for History, 63 U Chi L Rev 1707, 1732–43 (1996); Donald Dripps, Akhil Amar on Criminal Procedure and Constitutional Law: “Here I Go down That Wrong Road Again”, 74 NC L Rev 1559, 1594–1623 (1996). See also generally David E. Steinberg, An Original Misunderstanding: Akhil Amar and Fourth Amendment History, 42 San Diego L Rev 227 (2005); David A. Sklansky, The Fourth Amendment and Common Law, 100 Colum L Rev 1739 (2000); Tracey Maclin, When the Cure for the Fourth Amendment Is Worse Than the Disease, 68 S Cal L Rev 1 (1994).
- 21. US Const Amend IV.
- 22. See generally Telford Taylor, Two Studies in Constitutional Interpretation (Ohio State 1969). See also, for example, Amar, 107 Harv L Rev at 764–66, 789, 803 (cited in note 13).
- 23. Taylor, Two Studies in Constitutional Interpretation at 23–44 (cited in note 22). In support of his claim, for instance, that warrants were not historically required, Taylor noted that it would be “quite impracticable unless there are a reasonable number of officials who can read and write.” Id at 27. He continued: “Accordingly, it is hardly surprising [ ] that the earliest statutes authorizing searches say nothing of warrants.” Id. He did not, however, cite any laws—nor was the assumed connection between illiteracy and a lack of warrants anything more than mere conjecture. Taylor continued, suggesting that the arrest and search of suspected felons without a warrant was a frequent occurrence and that “it is from this natural if often oppressive practice that much of the modern law of search and seizure has sprung.” Id at 28. Yet he provided no evidence of this assertion—to the contrary, he went on to quote Sir Frederick Pollock and Frederick William Maitland on the infrequency of arrest (not even addressing search) outside of hot pursuit. Id, citing Frederick Pollock and Frederic William Maitland, 2 The History of English Law before the Time of Edward I 582–83 (Cambridge 2d ed 1898). Taylor further contended that search incident to arrest suggests that warrants were not required, without realizing that this amounted to an exception. Taylor, Two Studies in Constitutional Interpretation at 28–29 (cited in note 22), citing William Sheppard, The Offices of Constables, ch 8, § 2, no 4 (Hondgkinsonne 2d ed c 1675), and Saunders Welch, Observations on the Office of Constable 12, 14 (printed for A. Millar 1754).
- 24. Amar, 107 Harv L Rev at 765 n 21 (cited in note 13).
- 25. Id at 765.
- 26. See Part I.
- 27. Amar, 107 Harv L Rev at 766–67 (cited in note 13), citing Act of July 31, 1789, ch 5, § 24, 1 Stat 29, 43 (repealed 1790).
- 28. Amar, 107 Harv L Rev at 766 (cited in note 13). Amar similarly relies on this argument in his rebuttal to Professor Thomas Davies. Amar, 30 Suffolk U L Rev at 59 (cited in note 13).
- 29. See, for example, Bostock, 95 Eng Rep at 1146 (Nares) (distinguishing protections of personal homes from protections of businesses and finding that the absence of probable cause resulted in a judgment for the plaintiff of trespass). See also Cooper v Boot, 99 Eng Rep 911, 916 (KB 1785) (finding that the statute of 10 Geo 1, ch 10 imposed a duty on excise officers having grounds of suspicion to lay them before a justice of peace, or commissioner of excise, upon oath, and that the judgment of the magistrate upon ex parte examination, certified by oath, served as a legal warrant); Samuel v Payne, 99 Eng Rep 230, 230–31 (KB 1780) (noting that a justice of the peace issued a search warrant based on a charge that the individual possessed stolen goods).
- 30. Davies, 98 Mich L Rev at 551 (cited in note 20).
- 31. Id.
- 32. 1 Quincy 51 (Mass 1761).
- 33. See generally Nelson B. Lasson, The History and Development of the Fourth Amendment to the United States Constitution (Johns Hopkins 1937).
- 34. See id at 101–03.
- 35. Davies, 98 Mich L Rev at 568 (cited in note 20), citing Lasson, The History and Development of the Fourth Amendment at 81 (cited in note 33).
- 36. Lasson, The History and Development of the Fourth Amendment at 103 (cited in note 33). See also Davies, 98 Mich L Rev at 568 (cited in note 20) (summarizing Lasson’s analysis).
- 37. See generally William J. Cuddihy, The Fourth Amendment: Origins and Original Meaning (unpublished PhD dissertation, Claremont Graduate School, 1990) (“Cuddihy Dissertation”). He subsequently published his dissertation as a book. See generally William J. Cuddihy, The Fourth Amendment: Origins and Original Meaning: 602–1791 (Oxford 2009).
- 38. Cuddihy, The Fourth Amendment at 765 (cited in note 37).
- 39. Id at 765–66.
- 40. Id at 770.
- 41. See Davies, 98 Mich L Rev at 571 (cited in note 20).
- 42. See id at 571–74.
- 43. See id at 575–83.
- 44. Id at 581–82.
- 45. Davies, 98 Mich L Rev at 590 (cited in note 20).
- 46. Id.
- 47. Id at 600–10.
- 48. Id at 700 & n 437.
- 49. 389 US 347 (1967).
- 50. Cuddihy rightly critiqued Davies for narrowing the category of “unreasonable searches and seizures” to include only general warrants. William Cuddihy, Warrantless House-to-House Searches and Fourth Amendment Originalism: A Reply to Professor Davies, 44 Tex Tech L Rev 997, 998 (2012) (“Davies’s identification of the general warrant as the Amendment’s only ‘unreasonable’ category in 1791 massively contradicts a pre-revolutionary consensus on search and seizure that anathematized all legal entities that incubated general house searches.”). It is therefore puzzling why Cuddihy would see the first clause as a general statement of principle requiring a warrant for entry and not also a prohibition on general warrants, a concept that he instead applies to the specifics required in the second clause of the Fourth Amendment. See text accompanying notes 37–40.
- 51. United States v Knights, 534 US 112, 118 (2001).
- 52. In a later response to Davies, Amar refers to Sir William Blackstone’s writing to support the assertion that there is no warrant requirement in the Fourth Amendment. See Amar, 30 Suffolk U L Rev at 56–59 (cited in note 13). He misses in this analysis that public safety—which included apprehending a fleeing felon immediately following the felonious act—presented an exception to the general requirement. He also focuses on the citizen’s arrest aspect of felony pursuit, contradicting Davies’s assertion that such arrests do not represent state action. The analysis rather misses the point that breaches of the peace and the fleeing felon exception were just that: exceptions and not the general rule. The fact that constables, by nature of their office, held similar powers also misses the point. Sir Matthew Hale, Sergeant William Hawkins, Blackstone, and others have spilled a considerable amount of ink discussing the level of assuredness needed during the commission of a felony, or immediately afterward, for the exception to hold. See Part I.C.
- 53. Lasson, The History and Development of the Fourth Amendment at 58–59 (cited in note 33).
- 54. Letter from John Adams to William Tudor (Mar 29, 1817), in 10 The Works of John Adams, Second President of the United States 244, 248 (Little, Brown 1856). See also Laura K. Donohue, The Future of Foreign Intelligence: Privacy and Surveillance in a Digital Age 75 (Oxford 2016).
- 55. See Donohue, The Future of Foreign Intelligence at 84–94 (cited in note 54).