David E. Steinberg, Thomas Jefferson School of Law, has posted a new paper, The Uses and Misuses of Fourth Amendment History. Here's the abstract:
Modern Fourth Amendment decisions have resulted in a doctrine that often seems arbitrary and incoherent. Given the unsatisfactory quality of Fourth Amendment doctrine, attorneys and scholars have demonstrated a renewed interest in the original understanding and historical origins of the Fourth Amendment. This article describes common misconceptions about Fourth Amendment history, and concludes that the framers enacted the Fourth Amendment solely to regulate house searches.
Mainstream analysis asserts that the framers of the Fourth Amendment intended to impose both a warrant preference rule, and a general reasonableness requirement on all searches and seizures. However, state and federal law in early America authorized warrantless searches in the vast majority of situations. Further, historical evidence strongly suggests that the Fourth Amendment did not intend to adopt any general reasonableness requirement. For example, in early ship seizure cases that came both the United States Supreme Court, neither the attorneys nor the Justices even mentioned the Fourth Amendment.
Professor Akhil Amar has developed one of the primary alternative readings of Fourth Amendment history. According to Professor Amar, the framers of the Fourth Amendment viewed warrants as dangerous, and enacted the Fourth Amendment to limit the use of warrants.
Contrary to Professor Amar's interpretation, historical evidence indicates that the framers only sought to prohibit general warrants – warrants issued with little evidentiary support, which did not restrict the places that law enforcement officers could search. The historical record does not suggest that the framers sought to impose similar limits on specific warrants. In fact, several early federal and state statutes actually required specific warrants. These statutes contradict Professor Amar's claim that the framers sought to limit the use of all warrants -- both general warrants and specific warrants.
Other scholars argue that courts should not consider Fourth Amendment history, either because the original understanding of the amendment is impossible to determine, or because changed circumstances make this history of little relevance to current controversies. However, scholars have not demonstrated that the original understanding of the Fourth Amendment is shrouded in uncertainty. In addition, scholars have offered few coherent analytical alternatives that could replace historical analysis.
Actually, an objective review of historical sources yields an original understanding of the Fourth Amendment that is both surprisingly clear, and surprisingly different from most contemporary readings. Historical sources demonstrate that the framers were focused on a single, narrow problem -- physical trespasses into houses by government agents. In his influential argument in Paxton's case, attorney James Otis complained in 1761 that British custom officials armed with a general warrant “may enter our houses when they please -- may break locks, bars and every thing in their way -- and whether they break through malice or revenge, no man, no court, can inquire . . . .” Otis's clients were merchants who owned ships, warehouses, and shops. But Otis did not challenge searches of ships or commercial premises – only searches of houses. Similarly, in a 1774 address to the American people, the Continental Congress protested against the power of British customs officers “to break open and enter houses without the authority of any civil magistrate founded on legal information.”
The Fourth Amendment was enacted to regulate house searches through 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 trespass into a house? Outside of house searches, the Fourth Amendment was simply inapplicable.
