Abstract

http://ssrn.com/abstract=1026391
 
 

Footnotes (294)



 


 



The Framers' Search Power: The Misunderstood Statutory History of Suspicion & Probable Cause


Fabio Arcila, Jr.


Touro College - Jacob D. Fuchsberg Law Center

September 1, 2008

Boston College Law Review, Vol. 50, p. 363, 2009
Fordham Law Legal Studies Research Paper No. 1026391

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.

Number of Pages in PDF File: 65

Keywords: 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

Accepted Paper Series


Download This Paper

Date posted: November 2, 2007 ; Last revised: July 22, 2013

Suggested Citation

Arcila, Jr., Fabio, The Framers' Search Power: The Misunderstood Statutory History of Suspicion & Probable Cause (September 1, 2008). Boston College Law Review, Vol. 50, p. 363, 2009; Fordham Law Legal Studies Research Paper No. 1026391. Available at SSRN: http://ssrn.com/abstract=1026391

Contact Information

Fabio Arcila, Jr. (Contact Author)
Touro College - Jacob D. Fuchsberg Law Center ( email )
225 Eastview Drive
Central Islip, NY 11722
United States
(631) 761-7111 (Phone)

Feedback to SSRN


Paper statistics
Abstract Views: 832
Downloads: 117
Download Rank: 139,783
Footnotes:  294

© 2014 Social Science Electronic Publishing, Inc. All Rights Reserved.  FAQ   Terms of Use   Privacy Policy   Copyright   Contact Us
This page was processed by apollo3 in 0.453 seconds