An Original Misunderstanding: Akhil Amar and Fourth Amendment History

43 Pages Posted: 3 Oct 2005 Last revised: 26 Mar 2009

Abstract

The Supreme Court's modern Fourth Amendment decisions rely on two central assumptions about the original understanding of the amendment. First, the Court and most modern commentators have presumed that the Fourth Amendment prefers searches and seizures pursuant to a specific warrant. Second, even where law enforcement activities do not require a warrant, the Court has presumed that the Fourth Amendment imposes a global reasonableness requirement on all searches and seizures.

In a series of influential writings, Professor Akhil Amar has advocated a restructuring of Fourth Amendment law, based on a very different account of Fourth Amendment history. Professor Amar writes that the Fourth Amendment was enacted to limit warrants. According to Professor Amar, the framers viewed warrants as dangerous, because a warrant would provide a defense to law enforcement officers in a trespass damages action. Rather than imposing a warrant preference rule, Professor Amar asserts that the Fourth Amendment imposes a global reasonableness requirement on all searches and seizures.

This article concludes that Professor Amar's account receives little support from historical sources. Contrary to Professor Amar's assertion, the framers did not believe that all warrants were dangerous. The framers actually intended that law enforcement officers must obtain a specific warrant before entering a house. Nor does the historical record support Professor Amar's claim that the Fourth Amendment imposed a global reasonableness requirement on all searches and seizures. For example, the Fourth Amendment was not even mentioned in early federal ship seizure cases.

The real Fourth Amendment envisioned by the framers was actually a narrow document - much less sweeping in scope than either the traditional account or Professor Amar's understanding of history. The framers were focused on a single, narrow problem - unlawful physical invasions of houses by government agents. The Fourth Amendment was enacted to address this problem with a precise, bright-line rule. Before entering a house, law enforcement officers typically would need to obtain a specific warrant. But what about searches or seizures that did not involve a physical entry into a house? Outside of house searches, the Fourth Amendment was simply inapplicable.

Keywords: Fourth Amendment, Search And Seizure, Constitutional Law, American Legal

Suggested Citation

Steinberg, David E., An Original Misunderstanding: Akhil Amar and Fourth Amendment History. San Diego Law Review, Vol. 42, p. 227, 2005; TJSL Legal Studies Research Paper No. 05-09. Available at SSRN: https://ssrn.com/abstract=818184

David E. Steinberg (Contact Author)

Thomas Jefferson School of Law ( email )

701 B Street
Suite 110
San Diego, CA 92101
United States
619-961-4345 (Phone)

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