The Fictional Character of Law-and-Order Originalism: A Case Study of the Distortions and Evasions of Framing-Era Arrest Doctrine in Atwater V. Lago Vista

199 Pages Posted: 3 Jun 2007

See all articles by Thomas Y. Davies

Thomas Y. Davies

University of Tennessee College of Law


In Atwater v. Lago Vista (2001) the Supreme Court ruled that the Fourth Amendment did not prohibit police from making warrantless arrests for minor offenses such as failure to wear a seat belt and further asserted that that ruling was consistent with the original understanding of the Fourth Amendment. This article documents the invalidity of that claim.

The first half of the article reviews the recent reemergence of originalist criminal procedure claims and then offers a point-by-point criticism of the specific claims Justice Souter's Atwater opinion made about framing-era warrantless arrest authority. In particular, it documents that warrantless arrest authority for a misdemeanor was limited to ongoing breaches of the peace; that is, to ongoing offenses that either involved public violence or that threatened to provoke public violence. The most salient feature of Justice Souter's historical analysis is that it did not identify any framing-era authority that actually authorized a warrantless arrest for a minor regulatory offense; rather, Atwater's purportedly historical analysis actually consisted largely of rhetorical misdirections and distortions.

The latter half of the article exposes larger discrepancies between the Fourth Amendment conceptual framework in Atwater and authentic historical search and seizure doctrine. In particular, the article documents that the probable cause standard was limited to customs enforcement in 1789, but did not become a justification for police warrantless arrests, even for felonies, until the nineteenth century. Rather, framing-era law generally did not grant officers any more warrantless arrest authority than private persons and permitted warrantless arrests only when the arresting person was prepared to prove that a crime had been committed in fact. Thus, the Framers did not intend to permit the discretionary arrest authority that is now bestowed on police officers under the rubric of Fourth Amendment reasonableness.

Additionally, the article documents that the law of arrest was originally constitutionalized in the due process of law clause of the Fifth Amendment rather than in the Fourth Amendment. The Fourth Amendment was aimed specifically at prohibiting Congress from authorizating general warrants. In keeping with Coke's interpretation of the law of the land chapter of Magna Carta, the Framers would have located the law of arrest in the state law of the land guarantees and in the the federal due process of law guarantee in the Fifth Amendment. Thus, the Supreme Court has effectively rewritten both the Fourth and Fifth Amendments in the centuries since the framing.

The article concludes by sketching out the salient differences between the accusatory criminal procedure that the Framers thought they had preserved in the Bill of Rights from the investigatory criminal procedure that emerged in the nineteenth and twentieth centuries and argues that the discontinuity of constitutional doctrine is so pronounced that originalism cannot provide a valid approach for deciding contemporary constitutional criminal procedure issues.

Keywords: Fourth Amendment, arrest, search, seizure, probable cause, due process, originalism, original meaning, Madison, Souter, common law, framers, breach

JEL Classification: K00

Suggested Citation

Davies, Thomas Y., The Fictional Character of Law-and-Order Originalism: A Case Study of the Distortions and Evasions of Framing-Era Arrest Doctrine in Atwater V. Lago Vista. Wake Forest Law Review, Vol. 37, pp. 239-437, 2002, Available at SSRN:

Thomas Y. Davies (Contact Author)

University of Tennessee College of Law ( email )

1505 West Cumberland Avenue
Knoxville, TN 37996-1810
United States

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