Del Bianco on Prohibition and the Fourth Amendment

Mitchell A. Del Bianco, a recent graduate of the University of Virginia's J.D. and M.A. program in legal history has posted How Prohibition Rewrote the Fourth Amendment, which is forthcoming in the Washington University Jurisprudence Review.  Mr. Del Bianco's advisors in the JD-MA program were Thomas Frampton and Sarah Milov.  He received the Roger and Madeleine Traynor Prize for the paper; the prize is awarded to the best written work by a graduating student at the University of Virginia School of Law.

During Prohibition, legion defendants-armed with a liberal construction of the Fourth Amendment and the newly minted exclusionary rule-stormed the federal courts with challenges to the introduction of evidence obtained by the searches and seizures of federal officers. This was a period where, by all accounts, Prohibition was vastly altering American policing in lasting ways. Yet little study has been given to how federal courts facilitated that alteration. 

This Article surveys and examines decisions, briefings, and contemporary legal commentary and uncovers that much of the judiciary interpreted the Fourth Amendment during Prohibition as having a doctrinal association with the Eighteenth. Federal courts practically reconstrued the meanings of "reasonable," "persons, houses, papers, and effects," and "searches and seizures" to adjust to the realities wrought by the new constitutional mandate of the Eighteenth Amendment to prohibit "intoxicating liquors." At the same time, decisions frequently reflected a desire to enforce national prohibition within the particular statutory bounds of the National Prohibition Act. The result was not only a policing landscape that differed greatly from preceding American history but also a Fourth Amendment landscape that exalted the home while offering second-class protections for searches and seizures occurring outside its walls--a jurisprudential legacy that lives on in the present day. 

--Dan Ernst

ASLH/Notre Dame Graduate Legal History Colloquium

[We have the following announcement.  DRE]

ASLH/Notre Dame Graduate Legal History Colloquium

September 27, 2025  | 10 AM - 3 PM (CST)
Notre Dame Law School | Chicago, IL

Registration/Welcome, 09:45 - 10:05 AM
Coffee & Morning Refreshments

Paper #1: Property Law and Indian Removal, 10:05 - 11:00 AM

"Indigenous Incendiaries: Forest Fires, Arson Law, and Ute Removal in 1870s Colorado"

Author:     Jacquelyn M. Davila, Yale University 
Respondent:    M. Todd Henderson, University of Chicago Law School

Paper #2: Colonization and Property Law, 11:05 - 12:00 PM

"Property Law as Colonial Forerunner"

Author:     Nathan Lee, New York University 
Respondent:    Nadav Shoked, Northwestern University Pritzker School of Law

Afternoon Break (Lunch), 12:05 - 1:00 PM

Paper #3: International Taxation, 01:05 - 2:00 PM

"Southern African Mining and the Modern Formation of Offshore Finance, 1860 - 1925"

Author:     Simon Rakei, University of Michigan
Respondent:    Ajay K. Mehrotra, Northwestern University Pritzker School of Law

Paper #4: The Common Law and the Fourth Amendment, 02:05 - 3:00 PM

"What is a House? Investigating the Meaning of Curtilage at Common Law" 

Author:     Mitchell Del Bianco, University of Virginia 
Respondent:    R. H. Helmholz, University of Chicago Law School

Law & Society John Hope Franklin Prize to Harris, Harawa

At the recent meeting of the Law and Society Association, the Association announced the winner of the John Hope Franklin Prize (recognizing "exceptional scholarship in the field of Race, Racism and the Law"). Legal historical scholarship made a strong showing. The winners, along with the citations, were as follows:

Jasmine E. Harris – University of Pennsylvania
The Political Economy of Conservatorship. UCLA Law Review, 71(5), 1364-1482

Jasmine E. Harris’s “The Political Economy of Conservatorship,” published in the UCLA Law Review, reinterprets conservatorship as a tool of racial and economic subordination. Harris weaves legal history, disability theory, and racial critique into an incisive analysis of how disability law has been used to extract labor and property from Black and Indigenous communities. By connecting conservatorship’s historical deployment to its contemporary operation, Harris exposes the system’s deep-seated structural harm. Her article exemplifies socio-legal scholarship at its finest and proposes an abolitionist framework with broad implications for race, disability, and legal reform.

Daniel S. Harawa – New York University
Coloring in the Fourth Amendment. Harvard Law Review, 137(6), 1533-1582

Daniel Harawa’s “Coloring in the Fourth Amendment,” published in the Harvard Law Review, delivers a powerful and incisive challenge to the colorblind assumptions embedded in Fourth Amendment jurisprudence. By exposing how race-neutral legal standards mask racial subordination in policing, Harawa articulates a doctrinal and normative argument for a race-conscious reasonable person standard. Grounded in constitutional theory and racial justice advocacy, this article exemplifies rigorous scholarship and has the potential to reshape legal understandings of policing, seizures, and race

An honorable mention went to legal historian Giuliana Perrone (University of California, Santa Barbara) for Rehearsals for Reparations, The Russell Sage Foundation Journal of the Social Sciences, 10(2), 132-150. The citation:

Giuliana Perrone’s “Rehearsals for Reparations,” published in the Russell Sage Foundation Journal of the Social Sciences, uncovers a neglected archive of postbellum litigation in which freed people sued to enforce testamentary bequests from former enslavers. Recasting these legal actions as early reparations claims, Perrone reveals the moral and legal logic through which formerly enslaved individuals asserted their rights to property, land, and justice. The article is an outstanding contribution to the history of race and the law and offers a new frame for understanding reparations in American legal history.

Congratulations to all!

-- Karen Tani

Lee on Privacy's Redeemer Origins

Sophia Z. Lee, University of Pennsylvania Carey Law School, has posted The Reconciliation Roots of Fourth Amendment Privacy, which appears in the University of Chicago Law Review:

The Roberts Court has made protecting “the privacies of life” a catchphrase of Fourth Amendment law in the digital era. The time is thus ripe for revisiting the doctrinal and political roots of this newly influential quote from the Court’s 1886 decision Boyd v. United States. Existing scholarship views Boyd and its paean to privacy as an opening salvo in the Supreme Court’s turn-of-the-twentieth-century deregulatory jurisprudence (often associated with the Court’s most famous substantive due process decision, Lochner v. New York). Scholars also assume Boyd’s emphasis on privacy was in keeping with the Founders’ view of the Fourth Amendment.

This Article makes a novel argument that Boyd and its elevation of protecting the “privacies of life” to an animating principle of the Fourth Amendment was instead a product of Reconstruction and its dismantlement. Doctrinally, the Article argues that legal actors did not commonly associate the Fourth Amendment with something they called “privacy” until after the Civil War. This association, along with Boyd’s other core doctrinal elements, was instead established during Reconstruction. Further, these Fourth Amendment innovations were pioneered in Congress, not the federal courts. Politically, the Article argues that Boyd’s innovations did not arise in response to growing federal economic regulation. Instead, the idea that the Fourth Amendment protected the privacies of life was fed by white Americans’ commitment to preserving racial hierarchy after the Civil War. Shared by moderate Republicans and Democrats, this embrace of Fourth Amendment privacy built an anodyne bridge between otherwise fierce political foes. In other words, Fourth Amendment privacy was produced by and helped secure Reconciliation—the process through which white Americans North and South, Democrat and Republican came together to limit Reconstruction, preserve white supremacy, and pave the way for the violent disenfranchisement of newly freed Black men.

The Article is primarily a work of legal history; it concludes, however, by considering the divergent doctrinal implications of resituating Boyd and Fourth Amendment privacy in the politics of Reconciliation. Doing so supports the Roberts Court’s recent Fourth Amendment decisions without undermining scholars who contend that the Fourth Amendment protected what we today call privacy from the start. At the same time, this history poses a problem for Justice Neil Gorsuch and other libertarians who use the modern administrative state’s connections to Jim Crow-era white supremacy to undermine its legitimacy. This Article shows that the very libertarian tradition championed by these skeptics of the administrative state suffers the same tainted roots. Critical scholars, for their part, document how constitutional privacy doctrines provide limited protection to marginalized communities. This Article’s history could support their reparative case for more robust Fourth Amendment protections.

--Dan Ernst

Dripps on the 4th Amendment and the Common-Law of Eavesdropping

Donald A. Dripps, University of San Diego School of Law, has posted Eavesdropping, the Fourth Amendment, and the Common Law (of Eavesdropping), which is forthcoming in the William & Mary Bill of Rights Journal:

Man plays the spinet (NYPL)

Judges and scholars have long debated the Fourth Amendment’s application to eavesdropping, and the amendment’s relationship to the common law torts of trespass and false arrest. Remarkably, neither the jurisprudence, nor the commentary, has given more than cursory consideration to the common law of eavesdropping. This Article is the first to consider in detail the common law of eavesdropping as it relates to the Fourth Amendment.

The Fourth Amendment’s text does not protect “persons, houses, papers and effects” but rather protects the right to be secure in persons, houses, papers and effects. The common law treated eavesdropping as a violation of the right to the security of the home. Trespass actions were part of these protections, but only a part. The prevailing focus on founding-era tort law supports interpretations based on private-law property rights, enforced ex post by actions for damages. The common law’s indictment of eavesdroppers as a public nuisance points in very different directions.

Eavesdroppers could be arrested in flagrante as “persons of ill fame” under an ancient English statute. Eavesdroppers could also be indicted as a public nuisance under the common law of crimes. These doctrines were well-established in America as well as in England.

Eavesdropping was thought to threaten the security of all the homes in the community. The public-nuisance offense was not completed by clandestine listening alone. Indictments had to allege repeated offenses and public dissemination of the overheard conversations. There was no standing requirement, as required to recover damages in tort or obtain an injunction. The remedy was not retrospective damages, but fine and jail unless the eavesdropper recruited sureties to post bond for the eavesdropper’s good behavior going forward.

Reading the Fourth Amendment by the light of the common law does not lead inevitably to a property-based model. The common law’s treatment of eavesdropping indicates that the sanctity of the home was protected against clandestine surveillance, not just against physical invasion. The common law of crimes saw the collection and the dissemination of private information as distinct legal wrongs. The remedy aimed to prevent future violations, rather than to redress completed ones. Important implications follow for the difficult issues that face us today when we try to apply the Fourth Amendment in a digital world. 

JSCH 47:3

Journal of Supreme Court History 47:3 has been published.  Here’s the TOC:

Introduction
Timothy S. Huebner

Articles

Anatomy of a Presidential Campaign from the Supreme Court Bench: John McLean, Levi Woodbury, and the Election of 1848
Rachel A. Shelden

A Forgotten First: Everett J. Waring, First Black Supreme Court Advocate, and the case of Jones v. United States  
John G. Browning

"Lost Laws" to "Eat Anywhere":  D.C. v. Thompson and the Road to Brown
Charles J. Sheehan

An Accident of History: The Fourth Amendment as Applied to Schools and New Jersey v. T.L.O.
Andrew H. Meck

Book Reviews 

Making Minimum Wage: Elsie Parrish versus the West Coast Hotel Company by Helen J. Knowles
Paul Kens

Judicial Bookshelf
Donald Grier Stephenson Jr.

Jain, "Policing the Polity"

The Yale Law Journal has published "Policing the Polity," by Eisha Jain (University of North Carolina School of Law). Here's the abstract:

The era of Chinese Exclusion left a legacy of race-based deportation. Yet it also had an impact that reached well beyond removal. In a seminal decision, the U.S. Supreme Court upheld a law that required people of “Chinese descent” living in the United States to display a certificate of residence on demand or risk arrest, detention, and possible deportation. Immigration control provided the stated rationale for singling out a particular group of U.S. residents and subjecting them to race-based domestic policing. By treating these policing practices as part and parcel of the process of deportation, the Court obscured the full reach of the law and its impact on U.S. communities. Through case studies of immigration policing and “anti-illegal immigrant” nuisance ordinances, this Essay argues that a “deportation-centric” framework continues to provide too limited a lens to recognize and redress unjustified surveillance within the United States. It argues for adopting what I call a “polity-centric” framework, which treats immigration status as necessarily fluid rather than fixed, and which considers the impact of front-end enforcement practices—including race-based demands to justify one’s presence—in light of the aim of building an integrated political community. This Essay closes by considering how a polity-centric framework could reorient how we understand the reach of immigration enforcement as it relates to antidiscrimination and Fourth Amendment doctrine.

Read on here.

-- Karen Tani

Seo on Charles Reich and the Fourth Amendment

Sarah Seo (Charles W. McCurdy Fellow, University of Virginia School of Law) has a new essay in the April issue of the Yale Law Journal titled, "The New Public." Here's the abstract:

By exploring the intertwined histories of the automobile, policing, criminal procedure, and the administrative state in the twentieth-century United States, this Essay argues that the growth of the police’s discretionary authority had its roots in the governance of an automotive society. To tell this history and the proliferation of procedural rights that developed as a solution to abuses of police discretion, this Essay examines the life and oeuvre of Charles Reich, an administrative-law expert in the 1960s who wrote about his own encounters with the police, particularly in his car. The Essay concludes that, in light of this regulatory history of criminal procedure, putting some limits on the police’s discretionary power may require partitioning the enforcement of traffic laws from the investigation of crime.