Searching Through History; Searching for History
42 Pages Posted: 1 Aug 2017
Date Written: 1996
Lawyers' histories of the Fourth Amendment have been partial in two ways: they have been incomplete, reviewing only a small fraction of the relevant historical data, and they have been partisan, selectively deploying fragments of the historical record to support their arguments about the Amendment's meaning. By historians' standards, lawyers' histories of the Fourth Amendment's origins have been partial.
Most obviously, these histories have been incomplete in the scope and depth of their research and analysis. Length is not the measure of a history's quality. But when a history is so brief that it fails to discuss, or apparently even to consider important sources, brevity is a shortcoming. This has been a common defect in lawyers' histories of the Fourth Amendment's origins.
It is a mistake to accept these tendentious lawyers' histories as attempts at researching and writing history, for they are something else. They are not the product of work by researchers sensitive to the "admonition that historians should devote themselves to the task of determining what actually happened." They are more akin to the work product of lawyers engaged in litigation.
To illustrate this point, the discussion contrasts a partial history offered by a prominent constitutional scholar with William J. Cuddihy's work, which is the most ambitious history of the Fourth Amendment's origins yet undertaken by a professional historian.
Identifying the virtues and limitations of Fourth Amendment histories is important, if only because they have had practical significance in constitutional law: they have been used by judges deciding cases. We need not revisit the endless and circular debate about originalism to recognize that history matters to constitutional decision makers.
This does not mean that lawyers' histories are invalid; indeed, they serve significant functions in our legal world. But it is important that we recognize lawyers' histories for what they are, and for what they are not.
This kind of work is not constitutional history, it is not legal history; it is not history. It is a lawyer's selective use of historical data to advance a legal argument. What is worrisome is that judges, lawmakers, or scholars will mistake lawyers' histories for something else, and that judges will decide cases based upon some partial history whose author claims to have discovered history's true and literal meaning.
Keywords: Legal History, Search and Seizure, Fourth Amendment, Writs of Assistance, General Warrants
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