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Abstract:
This manuscript, the second article of a two-part series, argues that originalist analyses of the Framers' views about governmental search power have devoted insufficient attention to the civil search statutes they promulgated. What attention has been paid, primarily as part of what I term the conventional account, has it that the Framers were divided about how accessible search remedies should be. This article explains why this conventional account is mostly wrong, and explores the lessons to be learned from the statutory choices the Framers made with regard to search and seizure law.

In enacting civil search statutes, the Framers chose to depart from common law standards and instead largely followed the patterns of preceding British civil search statutes. The overwhelming tendency was to link immunity to probable cause, and displace the jury by reserving the issue to federal judges. These choices are surprising because such provisions had been highly contested in the colonies when the British had implemented them. The Framers also promulgated a plethora of other procedural devices that made it harder to access search remedies. Taken together, and because probable cause was a poorly understood concept at the time, these choices show that once in power the Framers seem to have become more interested in protecting governmental search power than in limiting it.

This detailed review of the Framers' civil search statutes offers surprising lessons that have implications both for the role of originalism and contemporary Fourth Amendment jurisprudence.

common law, civil law, statutes, search, seizure, search and seizure, search & seizure, fourth amendment, 4th amendment, probable cause, reasonable suspicion, suspicion, suspect, immunity, jury, juries, originalism, history, legal history

Abstract:
Professor Steinberg believes that the Fourth Amendment was intended only to provide some protection against physical searches of homes through imposition of a specific warrant requirement because the Framers' only object in promulgating the Fourth Amendment was to ban physical searches of homes under general warrants or no warrants at all. This response essay takes issue with his thesis by (1) discussing its implications, (2) reviewing some concerns with his methodology in reviewing the historical record, and (3) examining the theoretical implication underlying his thesis that, except as to homes, we have a majoritarian Fourth Amendment, and questioning whether he adequately defends this position. The essay concludes with some thoughts about Professor Steinberg's presumption that originalism should control our Fourth Amendment jurisprudence.

Fourth Amendment, 4th Amendment, search, seizure, search and seizure, search & seizure, warrant, writ, common law, originalism, originalist, majoritarianism

Abstract:
This article, the first of a two-part series, argues that during the Framers' era many if not most judges believed they could issue search warrants without independently assessing the adequacy of probable cause, and that this view persisted even after the Fourth Amendment became effective. This argument challenges the leading originalist account of the Fourth Amendment, which Professor Thomas Davies published in the Michigan Law Review in 1999.

The focus in this first article is upon an analysis of the common law and how it reflected the Fourth Amendment's restrictions. Learned treatises in particular, and to a lesser extent a few case decisions, had articulated a judicial duty to monitor probable cause. But it is a mistake to presume that the law was necessarily implemented in accordance with this elite guidance. This is because justices of the peace, the non-elite judges who actually issued search warrants, had reason to believe that judicial sentryship of probable cause was often optional. Evidence supporting this conclusion can be found in treatises, as well as manuals for justices of the peace, legal forms, civil search statutes, and case law, as well as the extended development of probable cause sentryship jurisprudence, which continued well past 1960. American justice of the peace manuals and legal forms play a particularly important role in this story, as it is likely they had a profound influence on search warrant procedure given the laxity in legal education and judicial training, as well as the limitations on legal research, during the Framers' era.

common law, search, seizure, search and seizure, search & seizure, fourth amendment, 4th amendment, probable cause, suspicion, suspect, originalism, history, legal history, treatises, justice manuals, justice of the peace, warrant

Abstract:
This article discusses the Fourth Amendment's "special needs" principle, which has become the dominant analytic framework for judging the constitutionality of suspicionless civil searches. When a special need beyond the normal need of law enforcement exists, courts determine Fourth Amendment reasonableness by balancing the competing governmental and private interests at stake. Though sympathetic to the goal of providing more adequate protections against governmental overreaching, the article posits that current academic literature, which is overwhelmingly critical of the special needs principle, is misguided, and the article offers a new paradigm - a deferential model - that may better explain this jurisprudence.

Much of the critical literature operates from the premise that suspicionless civil searches are fundamentally antithetical to the Fourth Amendment. However, the historical record is more nuanced than critics acknowledge, and perhaps reflects the Framers' understanding that suspicionless civil searches can be necessary components of regulatory regimes. Moreover, commentators have not fully appreciated the necessities of the modern regulatory state and its need to conduct suspicionless civil searches.

The article suggests that the Court's special needs jurisprudence might be better understood as an effort to create a sliding-scale deferential review model for suspicionless civil search cases. Viewed from this perspective, a greater degree of predictability may be available in suspicionless civil search cases by considering the degree of correlation between the government's asserted special need and the predefined regulatory objective at issue. The cases seem to support more deferential judicial review when a strong correlation exists, and less deferential review as the correlation becomes weaker. The article closes by questioning the wisdom of such an approach, given the separation of powers issues that it raises concerning whether the executive, legislature, or judicial branch will have primacy over determining the constitutionality of suspicionless civil searches.

Fourth Amendment, search, search & seizure, special need, regulatory search, suspicionless, civil search