The Original Fourth Amendment, by Laura Donohue, University of Chicago Law Review, Vol. 83, 2016
The meaning of the rights enshrined in the Constitution provide a critical baseline for understanding the limits of government action — perhaps nowhere more so than in regard to the Fourth Amendment. At the time of the Founding, 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, and effects, absent a specific warrant. The only exception was when law enforcement or citizens were in active pursuit of a felon. Outside of that narrow circumstance, the government was prohibited from search and seizure absent approaching a magistrate and, under oath, providing evidence of the suspected offence and particularly describing 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 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 by the government before it may intrude on one’s person, papers, and effects. Reclaiming this meaning is essential for understanding the scope of the original Fourth Amendment.
Citation: Donohue, Laura, The Original Fourth Amendment (2016). University of Chicago Law Review, Vol. 83, 2016. Available at SSRN: https://ssrn.com/abstract=2726148