Reconstructing the Fourth Amendment: A History of Search and Seizure.

• Author: Dripps, Donald A.
• Position: Book review

RECONSTRUCTING THE FOURTH AMENDMENT: A HISTORY OF SEARCH AND SEIZURE, 1789-1868. By Andrew E. Taslitz. (1) New York, New York University Press. 2006. Pp. xi +363. $50.00.

Andy Taslitz is one of the most thoughtful and prolific members of the legal academy writing on issues in criminal justice. In this lively volume he links current issues in Fourth Amendment law to the Constitution's two great formative periods, the founding era of 1789-1791 and the reconstruction period that led to the adoption of the Fourteenth Amendment. Broadly speaking he believes that current doctrine slights such important values as community self-government, freedom of movement and freedom from public humiliation, and bolsters his critique of modern law with historical evidence suggesting the importance of these values to the Framers of the Fourth and Fourteenth amendments.

I have two basic criticisms. The first is that the book neglects the dynamic character of criminal justice throughout the nineteenth century. A central difficulty in fathoming the relationship between the Fourteenth Amendment and criminal justice is that the framing took place more or less in the middle of a radical transformation of the criminal justice process--a process I call the first criminal procedure revolution.

Unlike the second revolution engineered by the Warren Court, legislatures rather than courts led the way. They took the system inherited from the English common law, a system based on private investigation and prosecution overseen by justices of the peace with a dominant role for the gallows in the penalty structure, and remade it utterly. Nineteenth century legislatures made fundamental institutional changes, by establishing paramilitary municipal police forces, public prosecutors with a functional monopoly on charging decisions, and a new system of punishment based on the penitentiary. They also made dramatic changes in legal doctrine and practice, bypassing the grand jury in favor of accusation by information, giving defendants the right to testify (and the risk that juries would convict them because they declined to do so), and made cross-examination rather than competence the central principle of evidence law. All of these changes were championed by the utilitarian reformer Jeremy Bentham, and while historians may quibble about just how much personal influence Bentham had, it remains fair to refer to these changes as Benthamite reforms.

Many of these changes, such as authorizing defense testimony and accusation by information in felony cases, were, and were understood as, direct attacks on the common law criminal justice system. The debate over these reforms was vigorous and prominent, and it went on before, during, and after the ratification of the Fourteenth Amendment. No history of the relationship between the Fourteenth Amendment and search-and-seizure should ignore, as Tastlitz does, the evolving nature of the criminal justice system to which the new constitutional provision was to apply.

My second criticism requires far less exposition. I don't know how the law would change if the Justices of the Supreme Court read his book and unanimously agreed with it. I know that particular cases Taslitz discusses would have come out differently, but the vagueness of his interpretive premises and the generality of the principles he derives from his reading of history generate a normative framework that doesn't determine or even strongly imply a particular outcome on important issues. Most of the fault here lies with the Framers, who chose two clauses to regulate search-and-seizure, one far too general and the other far too rigid. It is still fair to say that distilling from history principles as broad and in as much tension with one another as liberty and community is not likely to alter how readers feel about stop-and-frisk or search-incident-to-arrest.

Part I of this review summarizes the book. Parts II and III develop more fully the two criticisms just introduced.

1. AN OVERVIEW OF THE BOOK

   Reconstructing the Fourth Amendment consists of 12 chapters, organized as an introduction and two parts. The first part, "Political Violence and the Original Fourth Amendment" argues that modern law's tolerance of broad police powers conflicts with founding-era values and with the amendment's textual commitment to a corporate "right of the people." Chapter 2, "Violence as Political Expression," makes Taslitz's central claims about founding-era history. Taslitz points out (pp. 18-23) that the Founders revered the rulings in Entick v. Carrington and Wilkes v. Wood (3)--cases in which the court ruled that executive-issued warrants to search for private papers furnished no defense to soldiers defending trespass suits. He also points to the Founders' approval of broad search powers when authorized by colonial legislature, as distinct from those authorized by the English Parliament in which America had no representation (pp. 23-36). Finally, he argues that one reason why the Founders detested general warrants was the insult or humiliation that accompanied their execution (pp. 36-44). State violence, according to Taslitz, has an expressive as well as a functional dimension. State violence against the individual absent individualized justification, he argues, treats the victim as a thing, not a person.

   Chapter 3 builds on the premise that the Fourth Amendment requires "individualized justice" as a sign of official respect for the citizen. How much suspicion must state actors have before searching or seizing? Taslitz argues that the common law warrant process required rather stronger antecedent suspicion than current doctrine. The affiant had to have personal knowledge, and was accountable in tort if the suspected items were not found (p. 49). Moreover, according to Taslitz, the eighteenth century justice of the peace "was a man of stature expected independently to assess the adequacy of the grounds for probable cause." (p. 49, footnote omitted). The Fourth Amendment, therefore, "loosened common-law search and seizure standards" by dispensing with the requirement that the suspected stolen or contraband goods be both present at the place to be searched and in fact stolen or contraband (p. 49). Nonetheless there was substantial continuity between the common law and the constitutional amendment: "What matters most, however, is that probable cause required specific, trustworthy information to make real the implicit aspiration toward individualized justice" (p. 49, footnote omitted).

   Taslitz's treatment of the origins of the Fourth Amendment is tantalizing; he mentions but does not cite anti-Federalist complaints about the pro-government features of the proposed amendment (p. 49). He does not discuss the founding era views on a related and arguably more interesting question, namely on whether mere evidence, including private papers, would be subject to search and seizure even pursuant to a valid warrant. Entick v. Carrington had held that at common law no warrant could be issued to seize private papers not stolen or otherwise contraband (i.e. "mere evidence," private property useful to the government as proof, not the corpus delicti). If it should turn out that Boyd v. United States (4) correctly read the original understanding, originalist justices would be required to rethink a hugely important body of modern law--the one authorizing seizure or subpoena of business records, including computer records.

   Chapter 3 also sets out one of the many methodological equivocations that run through the book. Taslitz, his emphasis on history notwithstanding, is not an originalist. "To see the Fourth Amendment as justifiably informed by the common law," he writes, "is, therefore, to see the amendment as embodying a fundamental set of principles subject to evolution to fit individual fact situations and new social circumstances" (p. 53). In an earlier article, he wrote that:

   Examining history can serve the same moral function as does studying current social practices in highlighting how we fall short of our moral ideals. History can also reveal repeating patterns, uncover intergenerational grievances and depths of feeling, and expose moral controversies whose resolution led to new law, thus informing moral sensibilities in a way that a concentration on current social practices alone cannot. (5) History, then, informs but does not control. It provides modestly privileged reasons to prefer one result over another.

   Chapters 4 and 5 are titled, respectively, "Modern Implications 1" and "Modern Implications 2." Chapter 4 concerns itself with institutional distributions of authority to resolve search-and-seizure disputes. Parting company with Thomas Davies, the author of the leading article, Taslitz sees special significance in the textual reference to "the right of the people" and the division of labor between the warrant clause and the reasonableness clause (p. 56). While legislatures usually speak for "the people" in our democratic system, Taslitz sees a role for both direct popular participation in Fourth Amendment law and a special role for the courts. Popular participation should take the form of jury...