State Search and Seizure: The Original Meaning
69 Pages Posted: 17 Nov 2014 Last revised: 17 May 2016
Date Written: November 16, 2014
Every state in the Union has a state constitutional provision purporting to guarantee a right against unreasonable searches and seizures. And every state supreme court in the country frequently invokes originalism as the basic method of state constitutional interpretation, and has been doing so for a very long time. Yet almost no state adheres to the original meaning of its search and seizure provision. Rather, state supreme courts assume that the remedy for unreasonable searches or seizures is exclusion. The problem with this arrangement, as other scholars have noted with regard to the Fourth Amendment, is that there is an unjustifiable remedial gap — innocent people have no constitutional recourse. And what that really means is that innocent people actually do not have a right to be free from unreasonable searches and seizures. This should not be the case.
To date, no scholar has addressed this problem with regard to state constitutional law. This Article breaks new ground in the field of state constitutional law and originalism by analyzing the original meaning of the search and seizure provisions of all fifty states. This is accomplished by examining the texts of all fifty search and seizure provisions, caselaw from the nineteenth and early twentieth centuries that is both temporally and geographically diverse, and state constitutional conventions. Based on these sources, this Article concludes that nearly every state shares a common original meaning when it comes to search and seizure provisions. And that original meaning fixes the remedial problem described above by providing to every citizen, guilty or innocent, a self-executing, constitutional tort that protects interests of privacy, property, dignity, and reputation via damage awards that are both compensatory and punitive. Courts should return to this original meaning so as to ensure that all state citizens actually have the right to be free from unreasonable searches and seizures.
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