Library of Law and Liberty: The Legislative History of the Fourth Amendment: Unreasonable Searches and General Warrants

Library of Law and Liberty: The Legislative History of the Fourth Amendment: Unreasonable Searches and General Warrants by Mike Rappaport:

Significantly, the two clauses are separated by an “and.”  This “and” has led to an uncertainty about the relationship between the two clauses. Some people argue that searches and seizures without warrants are unreasonable, except in limited circumstances.  Others argue that searches and seizures do not require warrants under any circumstances.  Instead such warrants were used as a defense by government officials against tort claims for illegal searches and therefore were restricted to certain situations.

Interestingly, the original version of the Fourth Amendment did not have this structure.  James Madison’s proposed version of what would become the Fourth Amendment provided:

The rights of the people to be secured in their persons; their houses, their papers, and their other property, from all unreasonable searches and seizures, shall not be violated by warrants issued without probable cause, supported by oath or affirmation, or not particularly describing the places to be searched, or the persons or things to be seized.

Madison’s provision only provides protection from certain kinds of warrants – the protection provided by the prohibition clause.  While it includes the language of the rights clause, this language does not confer that right independently.  Instead, Madison’s provision merely states that the right can be violated by violating the prohibition clause.  In fact, the rights clause narrows the scope of the prohibition clause by limiting it to “persons, houses, papers, and other property.”