The Happy Fourth Amendment: History and the People’s Quest for Constitutional Meaning

Texas Tech Law Review, Vol. 43, 2010

61 Pages Posted: 14 Dec 2010

See all articles by Andrew E. Taslitz

Andrew E. Taslitz

American University - Washington College of Law

Date Written: December 10, 2010


Much debate about the role of history in constitutional interpretation centers on the difference between originalism and non-originalism. Yet most writers agree that history must play some role. If it does, for what should we be looking when we mine history? Originalists say, "for the original intent of the Framers or the original meaning of the Founding moment" or some variation. Non-originalists are less clear. Starting from a non-originalist perspective, this article argues that one important thing to mine history for is lessons about what promotes individuals' and the People's happiness. The article considers the implications for this stance for Fourth Amendment interpretation. The article first defines a "People" by its shared commitments, finding the American People thus to be defined in part by the "pursuit of happiness" as stated in the Declaration of Independence. The piece argues that the Declaration has an appropriate role to play in interpreting the Constitution. Next, the piece reviews relevant historical meanings of "happiness" and its pursuit and finds them consistent with modern social science on these topics. Specifically, the article finds that happiness's pursuit for individuals and the American People partly requires that citizens, groups, and the People as a whole have an effective voice in government and that the state also work to promote certain types of equality (though not income equality). The article argues that these happiness-promoting functions are particularly central to history's role in interpreting the Fourth Amendment, concluding with three examples focusing on racial and viewpoint minorities and their interactions with the police. The article was written as part of a symposium panel on the role of history in understanding the Fourth Amendment's meaning.

Keywords: Fourth Amendment, happiness, history, originalism, non-originalism, constitutional interpretation, governance, voice, effective voice, equality

JEL Classification: D633, D644, K42

Suggested Citation

Taslitz, Andrew E., The Happy Fourth Amendment: History and the People’s Quest for Constitutional Meaning (December 10, 2010). Texas Tech Law Review, Vol. 43, 2010, Available at SSRN:

Andrew E. Taslitz (Contact Author)

American University - Washington College of Law ( email )

4300 Nebraska Avenue, NW
Washington, DC 20016
United States

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