Keeping Up with the Joneses: Making Sure Your History Is Just as Wrong as Everyone Else's
Michigan Law Review First Impressions, Vol. 111, p. 21, February 2013
6 Pages Posted: 9 Feb 2013
Date Written: February 7, 2013
Both the majority and concurring opinions in United States v. Jones are wrong about the state of the law in 1791. Landowners in America had no right to exclude others from unfenced land. Whether a Fourth Amendment search requires a trespass or the violation of a reasonable expectation of privacy, government can explore open land without a search warrant.
In the United States, landowners did not have a right of action against people who entered open land without permission. No eighteenth-century case shows a remedy for mere entry. Vermont and Pennsylvania constitutionally guaranteed a right to hunt on open land. In several other states, statutes regulating hunting implied a public right to hunt on (and, by implication, enter) unfenced land.
Keywords: Fourth Amendment, open fields doctrine, trespass
JEL Classification: K11
Suggested Citation: Suggested Citation