A Response to Professor Steinberg's Fourth Amendment Chutzpah
Fabio Arcila, Jr.
Touro College - Jacob D. Fuchsberg Law Center
University of Pennsylvania Journal of Constitutional Law, Vol. 10, p. 1229, 2008
Fordham Law Legal Studies Research Paper No. 1154699
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.
Number of Pages in PDF File: 35
Keywords: Fourth Amendment, 4th Amendment, search, seizure, search and seizure, search & seizure, warrant, writ, common law, originalism, originalist, majoritarianismAccepted Paper Series
Date posted: July 6, 2008 ; Last revised: July 22, 2013
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