The Role of History: Book Review, William Cuddihy, 'The Fourth Amendment: Origins and Original Meaning'
Thomas K. Clancy
West Virginia University College of Law; University of Mississippi School of Law
Ohio State Journal of Criminal Law, Vol. 7, p. 8111, 2010
This is a review of William Cuddihy's treatise on the historical background of the Fourth Amendment and examines the debate regarding the role that history should play in its interpretation.
There appears to be a never ending debate whether the exact historical practices or broader values that are seen as underlying those practices are the important lessons of history. Should exact historical practices be dispositive of Fourth Amendment claims? Or should the underlying values of the Framers be the ultimate guide, permitting the evolution of the regulation of searches and seizures? The second method of analysis is only inconsistent with the common law as a tool of interpretation if the common law is seen to have dispositive effect. The lessons of history are not inconsistent with the belief that the Constitution is a living document. Historical analysis is arguably important primarily to identify the values of the Framers, which should be used to inform the Court’s adaptation of the Fourth Amendment to modern conditions.
Cuddihy's book, although not without flaws, is a major contribution to our knowledge of history.
Number of Pages in PDF File: 15
Keywords: Fourth Amendment, Search and Seizure, Cuddihy, Criminal Procedure, Constitutional LawAccepted Paper Series
Date posted: May 10, 2010 ; Last revised: January 30, 2011
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