The Original Fourth Amendment

149 Pages Posted: 3 Feb 2016 Last revised: 16 Sep 2016

Laura Donohue

Georgetown University Law Center

Date Written: 2016

Abstract

The meaning of the rights enshrined in the Constitution provide a critical baseline for understanding the limits of government action — perhaps nowhere more so than in regard to the Fourth Amendment. At the time of the Founding, the Fourth Amendment prohibited the government from entering into any home, warehouse, or place of business, against the owner’s wishes, to search for or to seize persons, papers, and effects, absent a specific warrant. The only exception was when law enforcement or citizens were in active pursuit of a felon. Outside of that narrow circumstance, the government was prohibited from search and seizure absent approaching a magistrate and, under oath, providing evidence of the suspected offence and particularly describing the place to be searched, and persons or things to be seized.

Scholars’ insistence that the Fourth Amendment does not entail a general protection against government entry into the home does more than just fail to appreciate the context. It contradicts the meaning of the text itself, which carefully lays out the conditions that must be met by the government before it may intrude on one’s person, papers, and effects. Reclaiming this meaning is essential for understanding the scope of the original Fourth Amendment.

Suggested Citation

Donohue, Laura, The Original Fourth Amendment (2016). University of Chicago Law Review, Vol. 83, 2016. Available at SSRN: https://ssrn.com/abstract=2726148

Laura Donohue (Contact Author)

Georgetown University Law Center ( email )

600 New Jersey Avenue, NW
Washington, DC 20001
United States
202 662-9282 (Phone)
202 662-9282 (Fax)

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