Fabio Arcila, Jr., Touro College (visiting at Fordham), has authored The Framers' Search Power: The Misunderstood Statutory History of Suspicion and Probable Cause, 50 Boston College Law Review 363 (2009). The abstract:
This manuscript, the second article of a two-part series, argues that originalist analyses of the Framers' views about governmental search power have devoted insufficient attention to the civil search statutes they promulgated. What attention has been paid, primarily as part of what I term the conventional account, has it that the Framers were divided about how accessible search remedies should be. This article explains why this conventional account is mostly wrong, and explores the lessons to be learned from the statutory choices the Framers made with regard to search and seizure law.
In enacting civil search statutes, the Framers chose to depart from common law standards and instead largely followed the patterns of preceding British civil search statutes. The overwhelming tendency was to link immunity to probable cause, and displace the jury by reserving the issue to federal judges. These choices are surprising because such provisions had been highly contested in the colonies when the British had implemented them. The Framers also promulgated a plethora of other procedural devices that made it harder to access search remedies. Taken together, and because probable cause was a poorly understood concept at the time, these choices show that once in power the Framers seem to have become more interested in protecting governmental search power than in limiting it.
This detailed review of the Framers' civil search statutes offers surprising lessons that have implications both for the role of originalism and contemporary Fourth Amendment jurisprudence.
