Framing the Fourth

29 Pages Posted: 10 Mar 2011  

Tracey Maclin

Boston University - School of Law

Julia Grace Mirabella

Boston University School of Law

Date Written: March 7, 2011

Abstract

Book Review of "The Fourth Amendment: Origins and Original Meaning", 602-1791. By William J. Cuddihy. Oxford and New York: Oxford Press. 2009. Pp. lxviii, 940. $165.

History is again an important element of the Supreme Court’s Fourth Amendment analysis. In Wyoming v. Houghton, Justice Scalia’s opinion for the Court announced that a historical inquiry is the starting point for every Fourth Amendment case. William Cuddihy’s book on the origins and original meaning of the Fourth Amendment will undoubtedly assist the Justices (and everyone else) in understanding the history of search and seizure law.

Cuddihy’s historical analysis is unprecedented. As Justice O’Connor has described it, Cuddihy’s work is “one of the most exhaustive analyses of the original meaning of the Fourth Amendment ever undertaken.” Cuddihy reviewed thousands of sources and has endeavored to identify the types of search and seizure that the Framers’ considered constitutional. However, Cuddihy’s scholarship has also triggered a sharp debate about the Framers’ intent among Fourth Amendment scholars.

This Review provides readers with some of Cuddihy’s main arguments. Part I identifies aspects of search and seizure doctrine that Cuddihy finds had a consensus by 1791 and briefly looks at other areas that were unsettled. Part II describes some of the scholarly reaction that Cuddihy’s book has ignited. Specifically, this section outlines the points of agreement and disagreement between Cuddihy and Professors Thomas Davies and Fabio Arcila. Finally, Part III compares Justice Scalia’s use of history in a recent case with Cuddihy’s findings, and offers a few comments on the guidance that Cuddihy’s book can provide to modern judges.

Keywords: Constitutional Law, Fourth Amendment, William J. Cuddihy, Unreasonable searches and seizures, General warrants, General searches, Nocturnal Searches, No-knock entries, Probable cause, Reasonableness standard, Fourth Amendment history

JEL Classification: K14, K19, K42, K49

Suggested Citation

Maclin, Tracey and Mirabella, Julia Grace, Framing the Fourth (March 7, 2011). Michigan Law Review, Vol. 109, pp. 1049-1076, April 2011; Boston Univ. School of Law Working Paper No. 11-10. Available at SSRN: https://ssrn.com/abstract=1781085

Tracey Maclin (Contact Author)

Boston University - School of Law ( email )

765 Commonwealth Avenue
Boston, MA 02215
United States
617-353-4888 (Phone)

Julia Grace Mirabella

Boston University School of Law ( email )

765 Commonwealth Avenue
Boston, MA 02215
United States

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