Pragmatism, Positivism, and Principles in Fourth Amendment Theory

104 Pages Posted: 2 Aug 2017 Last revised: 7 Aug 2017

See all articles by Morgan Cloud

Morgan Cloud

Emory University School of Law

Date Written: 1993


This article argues that conventional doctrinal analyses provide only a partial understanding of the meaning and nature of the Fourth Amendment. By employing broader jurisprudential theories often applied to other areas of constitutional law, we can arrive at a new and better understanding of the Fourth Amendment and its contemporary interpretation by judges and scholars.

The theory commonly referred to as pragmatism serves as the primary vehicle for pursuing these two goals, and it is an ideal laboratory for the inquiry. Judicial acceptance of the main tenets of pragmatist theory is the source of much that has been confusing about the Supreme Court's recent opinions interpreting the fourth amendment. The Court's critics have complained vigorously about the chaotic state of search and seizure law, and have linked the confusion to the absence of any theoretical basis for these decisions. This Article demonstrates that the Court's seeming inconsistency results not from the lack of a theory, but from the very nature of the pragmatist theories that generate the Justices' opinions. By scrutinizing Fourth Amendment cases through the lens of pragmatism, we discover what the Justices have been doing, and why.

The analysis of Fourth Amendment case law in turn provides insights into the nature of legal pragmatism. These insights are particularly timely because legal pragmatism, long the working theory of many, perhaps most, lawyers and judges has again become a theory touted by many legal academics. Yet when we identify pragmatism’s impact on Fourth Amendment theory, we discover that implementation of pragmatist theories and methods has profound and troubling implications for constitutional decision making, particularly in cases involving stark conflicts between individual autonomy and government authority. Fourth Amendment pragmatism produces outcomes that diminish individual liberty while increasing government power because it utilizes methods (interest balancing is one example) that undervalue rule-based decision making while exaggerating the importance of substantive reasons for decisions. Within the institutions of criminal justice, it has tended to redistribute power from the judiciary to the executive branch.

Case analysis produces these insights into pragmatism because the Fourth Amendment is a particularly provocative source of materials for developing and applying legal theory. No text in the Constitution defines more sharply the conflict between individual autonomy and government authority. No other provision is grounded more dramatically in the events that led to the creation of this nation. No other pair of clauses in the Bill of Rights, except the religion clauses of the First Amendment, is more susceptible to inherently contradictory interpretations than are the two clauses of the Fourth. No body of case law presents more provocative examples of the factually complex and diverse transactions between citizen and government to which the Constitution frequently must be applied-transactions which routinely involve a regular cast of institutional actors (citizens, police officers, magistrates, trial judges, appellate judges, prosecutors, and defense lawyers). As a result, the Fourth Amendment serves as fertile ground for exploring fundamental questions commonly addressed by scholars of other parts of the document.

Suggested Citation

Cloud, Morgan, Pragmatism, Positivism, and Principles in Fourth Amendment Theory (1993). UCLA Law Review, Vol. 41, No. 199, 1993. Available at SSRN:

Morgan Cloud (Contact Author)

Emory University School of Law ( email )

1301 Clifton Road
Atlanta, GA 30322
United States

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