Time Travel, Hovercrafts, and the Framers: James Madison Sees the Future and Rewrites the Fourth Amendment
52 Pages Posted: 1 Sep 2011
Date Written: April 1, 2005
The Framers wrote the Bill of Rights to limit the power of the federal government that they knew in 1789. But the “trip” from 1789 to the twenty-first century is a long one indeed. Because James Madison could not imagine helicopters, his Fourth Amendment provides no self-evident answer to the question of whether surveillance from a helicopter is a search. Nor does the text tell us whether recording the telephone numbers one dials is a search. The text does not even tell us when warrants are required. The article seeks to begin again by distilling principles that were important to the Framers and then rewriting the Fourth Amendment for the twenty-first century. For example, the Framers were principally concerned about suspicion-less searches conducted under the authority of the infamous writs of assistance. That suggests rejecting the modern Court’s doctrines that do not require individualized suspicion, such as consent searches. The rewritten Fourth Amendment is not as elegant as Madison’s but offers more guidance for twenty-first century policing.
Keywords: Fourth Amendment, search and seizure, writs of assistance, general searches, James Otis, Thomas Davies, Tracey Maclin, Akhil Amar, Telford Taylor, Scott Sundby, Warrant Clause hue and cry, search warrant requirement, consent searches, State v. Carty, Patrick Henry, First Congress, Justice Black
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