Can You Handle the Truth? The Framers Preserved Common-Law Arrest and Search Rules in ‘Due Process of Law’–‘Fourth Amendment Reasonableness’ is Only a Modern, Destructive, Judicial Myth by Thomas Y. Davies, 43 Texas Tech L. Rev. 51 (2010).
Abstract:
The conventional academic account of Fourth Amendment (or search and seizure) history has been shaped by uncritical acceptance of claims in Supreme Court opinions that the reference to “unreasonable searches and seizures” in that text was intended to created a broad “reasonableness” standard for assessing all government arrests and searches, whether made with or without warrant. This article marshals salient evidence from the author’s more detailed prior articles to demonstrate that this claim is merely a prochronistic myth that grossly understates the criminal procedure standards the American Framers thought they had preserved.
The article first describes the actual common-law standards for criminal arrests and related searches to show that mere “reasonableness” was never recognized as a standard in framing-era sources. It also documents that the accusatory common-law criminal arrest standards were actually understood to be salient features of the “law of the land” and “due process of law” protections set out in other constitutional provisions, and that criminal search authority was essentially an appendage of arrest authority. Thus there was neither room nor reason for the Fourth Amendment to address warrantless arrests or searches, or even criminal arrest warrants. Rather, the only unsettled search issue at the time of the framing was the scope of legislative authority regarding revenue search warrants, so the Fourth Amendment was framed simply to ban Congress from authorizing use of too-loose warrants for revenue searches of houses, while the Fifth Amendment due process of law clause preserved criminal procedure standards. (Along the way, the article identifies deficiencies in recent historical claims by Professors Fabio Arcila (notes 122, 204) and Thomas Clancy (note 225).)
The article then describes how nineteenth century judges destroyed the original understanding of due process of law and thus left federal Supreme Court justices free to reinvent modern “search and seizure” doctrine under the Fourth Amendment, to invent the concept of Fourth Amendment reasonableness in the 1925 Carroll decision to justify warrantless searches where lawful arrests could not be made, and more recently to exploit the flexible character of reasonableness to effectively create discretionary police arrest and search authority comparable to that conferred by the general warrant which the original Fourth Amendment was meant to abolish.
From the Texas Tech Law Review website (sub. req.):
02/23/2011 | The Majestic and the Mundane: The Two Creation Stories of the Exclusionary Rule
Written by Scott E. Sundby & Lucy B. Ricca
The Supreme Court’s decision in Herring v. United States resurrected the debate over the future of the exclusionary rule in American criminal procedur…02/23/2011 | Reasonable Remedies and (or?) the Exclusionary Rule
Written by Kenneth W. Starr & Audrey L. Maness
This Symposium on the Fourth Amendment posed a variety of questions to a number of contributors: How important is history to resolving Fourth Amendment …02/23/2011 | Picture This: Body-Worn Video Devices (Head Cams) as Tools for Ensuring Fourth Amendment Compliance by Police
Written by David A. Harris
Picture this: a police officer shoots a civilian in the back in a public place. The police officer says that the man assaulted him, resisted arrest, …02/23/2011 | Pragmatism, Originalism, Race, and the Case Against Terry v. Ohio
Written by Lawrence Rosenthal
Perhaps no decision of the United States Supreme Court concerning the Fourth Amendment’s prohibition on “unreasonable search and seizure,” has received …02/23/2011 | The Fourth Amendment as a Collective Right
Written by Thomas K. Clancey
The Fourth Amendment speaks of “[t]he right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and…02/23/2011 | The White Fourth Amendment
Written by Paul Butler
There is a scene near the end of the Academy Award winning film The Blind Side in which the character played by Sandra Bullock has gone to a low-income …02/23/2011 | Suspicion and the Protection of Fourth Amendment Values
Written by Fabio Arcila, Jr.
Suspicion is perhaps the core foundational principle through which we seek to protect and vindicate Fourth Amendment values. Fourth Amendment law cou…02/23/2011 | Stumbling Toward History: The Framers’ Search and Seizure World
Written by George C. Thomas
Most of what you think you know about the Fourth Amendment is wrong—at least as a matter of what the Framers intended. The problem begins with the te…02/23/2011 | The Happy Fourth Amendment: History and the People’s Quest for Constitutional Meaning
Written by Andrew E. Taslitz
I will argue here that history should play an expansive, though by no means decisive, role in giving the Fourth Amendment meaning. By expansive, I me…02/23/2011 | Can You Handle the Truth? The Framers Preserved Common-Law Criminal Arrest and Search Rules in “Due Process of Law”–“Fourth Amendment Reasonableness” is Only a Modern, Destructive, Judicial Myth
02/23/2011 | Written by Thomas Y. Davies
Should Fourth Amendment decisions be based on history? And, how well does the Supreme Court do in setting out Fourth Amendment history? These questi…02/23/2011 | A Conclusion in Search of a History to Support It
Written by Morgan Cloud
Originalism is not a theory of constitutional interpretation. It is not a historical method. It is a rhetorical device deployed to win arguments. O…02/23/2011 | The Roberts Court and Criminal Procedure at Age Five
Written by Erwin Chemerinsky
On Tuesday, June 29, 2010, the Supreme Court officially concluded its fifth year with John Roberts as Chief Justice, its first year with Justice Sonia…02/23/2011 | The Fourth Amendment: History, Purpose, and Remedies
Written by Arnold H. Loewy
In this symposium issue, the papers are addressed primarily to three topics: (1) How important is (should) history (be) to the resolution of Fourth Am…
