Recovering the original Fourth Amendment.

• Author: Davies, Thomas Y.

"The past is a foreign country: they do things differently there."(**)

1. INTRODUCTION AND OVERVIEW

   Claims regarding the original or intended meaning of constitutional texts are commonplace in constitutional argument and analysis. All such claims are subject to an implicit validity criterion -- only historically authentic assertions should matter. The rub is that the original meaning commonly attributed to a constitutional text may not be authentic. The historical Fourth Amendment is a case in point.

   If American judges, lawyers, or law teachers were asked what the Framers intended when they adopted the Fourth Amendment, they would likely answer that the Framers intended that all searches and seizures conducted by government officers must be reasonable given the circumstances. That answer may seem obvious -- the Amendment begins with a clause that states that "[t]he right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated...."(1) Indeed, this language has been identified as a prime example of how the original understanding can be gleaned directly from constitutional text -- what could "unreasonable" mean if not inappropriate in the circumstances?(2)

   Of course, the reference to "unreasonable searches and seizures" does not exhaust the intended meaning of the text -- the standards for valid arrest or search warrants that are set out in the second clause also show that the Framers intended to ban the use of too-loose, or "general," warrants. Thus the Framers intended to require that all searches and seizures be reasonable and also to forbid use of general warrants.

   There is a difficulty embedded in the apparently obvious meanings of the two clauses, however -- the text does not indicate how they fit together. It does not say whether a valid warrant should be the usual criterion for a "reasonable" police intrusion, or whether "Fourth Amendment reasonableness" should be assessed independently of use of a warrant. Put more concretely, it does not indicate whether or in what circumstances arrests or searches must be made pursuant to a warrant. Thus, it does not say when an officer should be allowed to intrude on the basis of his own judgment, or when he should be required to obtain prior approval from a judge. Largely because of this silence in the text, the need for warrants has been the central issue in the modern debate regarding search and seizure authority.

   A number of the historical commentaries on the Fourth Amendment have either favored or rejected a warrant requirement. However, none have supported their answer with persuasive historical evidence. If one turns to the historical sources themselves, the mystery initially deepens: the participants in the historical controversies that stimulated the framing of the Fourth Amendment simply did not discuss when a warrant was required. Odd as it may seem, the Framers simply were not troubled by the most salient issue in the modern debate.

   However, upon closer examination, the historical sources do provide a solution to the silence. They show that the Framers did not perceive the problem of search and seizure authority in the same way we now do. In fact, they reveal that the Framers did not even use the term "unreasonable searches and seizures" the way we do.

   The historical statements about search and seizure focused on condemning general warrants. In fact, the historical concerns were almost exclusively about the need to ban house searches under general warrants. Thus, the Framers clearly understood the warrant standards to be the operative content of the Fourth Amendment, as well as the earlier state search and seizure provisions. Moreover, the evidence indicates that the Framers understood "unreasonable searches and seizures" simply as a pejorative label for the inherent illegality of any searches or seizures that might be made under general warrants. In other words, the Framers did not address warrantless intrusions at all in the Fourth Amendment or in the earlier state provisions; thus, they never anticipated that "unreasonable" might be read as a standard for warrantless intrusions.

   Perplexing as that omission may appear from a modern perspective, it made sense in the context of the Framers' understanding of the problem of search and seizure. They saw no need for a constitutional standard to regulate the warrantless officer because they did not perceive the warrantless officer as being capable of posing a significant threat to the security of person or house. That was so because the ex officio authority of the peace officer was still meager in 1789. Warrant authority was the potent source of arrest and search authority. As a result, the Framers expected that warrants would be used. Thus, they believed that the only threat to the right to be secure came from the possibility that too-loose warrants might be used.

   The modern interpretation of "unreasonable searches and seizures" is the product of post-framing developments that the Framers did not anticipate. During the nineteenth century, courts and legislatures responded to heightened concerns about crime and disorder by expanding peace officers' ex officio authority to arrest and search. That expansion marginalized warrant authority and thus undercut the premises that had led the Framers to believe that they could control the officer by controlling the warrant. As a result, the new discretionary arrest and search authority of the officer posed a novel threat to the security of person and house.

   In the early twentieth century, the Supreme Court belatedly responded to the new threat to the right to be secure by extending constitutional search and seizure doctrine to the warrantless officer. It was at that time that the "warrant requirement" emerged as a salient issue. And it was at that time that the reference to "unreasonable searches and seizures" in the constitutional text was reinterpreted as though it articulated the relativistic concept of reasonableness-in-the-circumstances. In sum, the authentic history of constitutional search and seizure doctrine is not a simple story of continuity; rather, it is a story that includes drastic change.

   Overview of the Argument in this Article

   This Article begins the presentation of the authentic history of the Fourth Amendment by recovering the original understanding from the historical sources.(3) The experience of working out the authentic history has convinced me that one cannot grasp the original meaning until one first accepts the invalidity of the usual modern assumptions about the concerns the Framers "must have" experienced. For that reason, this Article makes two passes through the historical evidence. Parts II through IV refute the now commonplace assumption that the Framers must have meant to create a broad reasonableness standard for warrantless intrusions.

   Part II briefly reviews the two currently competing constructions of Fourth Amendment reasonableness: the more conventional warrant-preference construction, which treats the warrant process as the central protection called for by the Amendment, and the generalized-reasonableness construction, which rejects the need for, or value of, warrants. Part III next reviews the existing historical accounts associated with the two constructions and shows that each account is significantly flawed. The conventional accounts, which are linked to the warrant-preference construction, posit both a historical reasonableness standard, as well as the importance of warrants, but fail to clarify the Framers' understanding of when a warrant need be used. In contrast, the generalized-reasonableness accounts claim that the Framers meant for "unreasonable" to constitute the essence of the Amendment, while the warrant clause was meant only to discourage use of warrants. However, they are based in large measure on erroneous historical premises. Moreover, all of the previous accounts suffer from having made prochronistic assumptions of one sort or another; that is, at critical points they have each imposed contemporary concepts, definitions, or concerns on the historical sources and thus have misperceived the actual content of those sources.

   Part IV completes the historical critique of Fourth Amendment reasonableness by exposing the inauthenticity of the shared but prochronistic assumptions that have misdirected prior commentaries. It first exposes the lack of any actual evidence of a broad reasonableness-in-the-circumstances standard in framing-era arrest and search law. It next shows that the Framers' complaints were not about warrantless intrusions but were almost exclusively about revenue searches of houses under general warrants. Additionally, it shows that early interpretations of the Fourth Amendment and of the related state provisions did not include the regulation of warrantless intrusions; rather, post-framing court decisions interpreted the constitutional provisions banning "unreasonable searches and seizures" as regulating only the issuance of warrants.

   After exposing the defects in current treatments of the original meaning, Parts V through VII make a second pass through the historical sources to recover the Framers' understanding of the constitutional provisions. Part V consults common-law sources to reconstruct how the Framers perceived the problem of search and seizure authority and to explain why the Framers thought that control of warrant authority -- and, more precisely, the prohibition of general warrant authority -- would suffice to preserve the right to be secure in person and house. The explanation consists of two strands. First, common-law sources indicate that it made sense for the Framers to focus only on clarifying warrant standards because the ex officio authority of the framing-era officer was still rather meager. For example, the framing-era constable's arrest authority was much narrower than is generally...