Recovering the Original Fourth Amendment

Abstract

Historical sources indicate that the concept of "Fourth Amendment reasonableness" is only a modern judicial invention, not the intended meaning of the text. Common-law sources show there was no broad "reasonableness" standard in framing-era search and arrest law. In addition, historical sources show that the Framers were concerned almost exclusively with searches of houses under general writs or warrants. Although the Framers abhorred the exercise of discretionary authority by ordinary officers, they were not threatened by warrantless intrusions because the ex officio authority of peace officers was very limited, especially when a house was involved. Thus, because the Framers perceived that warrant authority was the potent form of arrest and search authority, and because they were primarily concerned with the protection of the house and the sphere of domestic privacy associated with the house, they believed that prohibiting legislative authorization of general warrants would suffice to preserve the right to be secure.

Moreover, in framing-era law, unlawful conduct by officers was regarded only as a private trespass, not as a form of government illegality. Thus the Framers had no basis for addressing the conduct of warrantless officers in a constitutional provision (and also had no basis for considering exclusion as a consequence of an unlawful search).

The reference to "unreasonable searches and seizures" in the text did not refer to a relativistic standard; rather that phrasing reflected Coke's earlier use of "against reason" as a label for a violation of a basic legal principle. James Otis invoked Coke's "against reason" during the Writs of Assistance Case and his protege John Adams (who recorded Otis's speech) introduced "unreasonable" into the lexicon of American search and seizure texts when he authored the 1780 Massachusetts Declaration of Rights.

Modern reasonableness doctrine is best understood as a judicial adjustment to the post-framing conferral of discretionary arrest and search authority on peace officers, a development which created a novel threat to the security of person and house. The 1914 decision in Weeks v. United States drew upon the late nineteenth century reconception of officer misconduct "under color of " office as a form of government illegality to extend the Fourth Amendment to warrantless officers. It also constitutionalized the common-law warrant requirement for house searches. The 1925 decision in Carroll v. United States changed direction, however, and facilitated enforcement of Prohibition by reinterpreting "unreasonable" as a relativistic standard for warrantless searches.

Thus, the history of the Fourth Amendment is one of drastic doctrinal and contextual change. The authentic meaning cannot be recovered from the words of the text alone; rather, the intended meaning of the words can only be ascertained by examing the doctrinal and institutional context that shaped the Framers' concern.

The differences between the historical and modern contexts are so pronounced that the original meaning cannot provide answers to modern issues. The value of recovering the authentic original meaning lies largely in the larger perspective it provides: we now accord the ordinary officer much more authority than the Framers either intended or expected.

JEL Classification: K10, K14, K42