Search and Seizure History as Conversation: A Reply to Bruce P. Smith
Ohio State Journal of Criminal Law, Vol. 6, No. 765, 2009
48 Pages Posted: 14 Feb 2010
Date Written: February 10, 2010
This article argues that American legal history is best understood as a conversation between elites and the hoi-poloi. Correspondingly, constitutional interpretation can best be understood as in important part a conversation between the dead and the living. This conversational understanding allows modern interpreters to draw important and practical lessons for the meaning of the Constitution today. The article distinguishes "lessons" from "rules," however, and spends some significant space exploring how to divine lessons and their practical value. Along the way, the article explores what should count as "evidence" for historical claims and for claims supporting drawing a lesson. The piece also examines how great political events in American history can be of use in resolving very specific modern legal controversies and why such great events should, as a normative matter, often be given more weight than purported evidence of specific, original intent. The piece's ultimate goal is to defend a particular version of the conversational approach to the Constitution that is of most relevance in interpreting the Fourth Amendment to that Constitution.
Keywords: Fourth Amendment, constitutional interpretation, conversational approach to history, original intent, conversations, history, rules, lessons, searches, seizures, Reconstruction, framers' intent, the Founding, race
JEL Classification: H10
Suggested Citation: Suggested Citation