The Fourth Amendment: Origins and Original Meaning.

• Author: Maclin, Tracey
• Position: Book review

THE FOURTH AMENDMENT: ORIGINS AND ORIGINAL MEANING, 602-1791. By William J. Cuddihy. Oxford and New York: Oxford Press. 2009. Pp. lxviii, 940. $165.

INTRODUCTION

As late as 1988, Fourth Amendment scholars thought they knew all they needed to know about the amendment's history. After all, the right to be free from unreasonable search and seizure is a "made in America" privilege. Unlike other parts of the Bill of Rights, the protection against unreasonable search and seizure "provides us with a rich historical background rooted in American, as well as English, experience; it is the one procedural safeguard in the Constitution that grew directly out of the events that immediately preceded the revolutionary struggle with England." (1) The history of search and seizure in Britain and America was neatly described in books by Nelson Lasson and Jacob Landynski. (2) Through these books and related articles, scholars learned about the events and individuals that helped prompt the adoption of the Fourth Amendment.

Although this history was well known to judges and scholars, in the second half of the twentieth century Fourth Amendment history rarely mattered to the Supreme Court. To be sure, there were disagreements, both on and off the Court, regarding the relevance of history. The results in cases, however, rarely depended on how the Court interpreted the amendment's history. (3)

Our knowledge of the Fourth Amendment's history was fundamentally transformed when William Cuddihy completed his Ph.D. dissertation in 1990. (4) Cuddihy's study was the most comprehensive and detailed examination of the history of search and seizure law and essential reading for anyone interested in the amendment's history. At first, Cuddihy's work was little known: only a few people noticed when the highly regarded constitutional historian Leonard W. Levy stated that "Cuddihy is the best authority on the origins of the Fourth Amendment." (5) Cuddihy finished his dissertation in 1990 and it remained unedited, unpublished, and largely unknown for several years--until Justice O'Connor made it famous by citing the dissertation thirteen times in her Vernonia School District 47 J v. Acton dissent. (6) Since Acton, a reassessment of Fourth Amendment history has been undertaken by criminal procedure scholars, and a "portion of the credit or blame may be due William Cuddihy." (7) Cuddihy's work has generated the attention scholars dream about--not only was he cited by the Court, his work apparently convinced Justice O'Connor to change "her position on a fundamental issue in constitutional law." (8)

A renewed interest in the Fourth Amendment's history has also been fueled by the rhetoric of Justices Scalia and Thomas. In Wyoming v. Houghton, (9) Justice Scalia announced that a historical inquiry is the starting point for every search and seizure case. Scalia explained that in determining whether police conduct violates the Fourth Amendment, the Court will first decide whether the intrusion "was regarded as an unlawful search or seizure under the common law when the Amendment was framed." (10) If the common law "yields no answer," the Court will then decide the validity of the intrusion under a modern balancing test. (11)

Although Houghton preached a commitment to historical inquiry, the Court has not adhered to its rhetoric. Holdings in Fourth Amendment cases seldom depend on the Court's interpretation of history. (12) Indeed, as Professor Larry Yackle notes about the Court's constitutional rulings, "results turn (as they should) on the justices' own best judgment rather than on anything genuinely traceable to original understanding." (13) The Rehnquist and Roberts Courts, often claiming reliance on the text of the amendment, have applied a balancing, "reasonableness" formula to decide search and seizure cases. Interestingly, Cuddihy's scholarship and conclusions have something to say about this approach as well.

Cuddihy's dissertation was 1,560 pages long. The book, The Fourth Amendment: Origins and Original Meaning, 602-1791, published by Oxford University Press in 2009, is now a solid 782 pages, with an additional 127 pages of appendices. Despite its smaller size, Origins and Original Meaning remains a unique resource for anyone interested in the history of the Fourth Amendment. A central purpose of Cuddihy's research is to identify the types of searches and seizures that "the amendment originally embraced as unreasonable or reasonable" (p. lxiv). Beginning his review in 602, Cuddihy ends his research in 1791 with the ratification of the Fourth Amendment, excluding much of the congressional debate and information beyond 1791 because he believes it to be unrevealing of the amendment's original intentions (p. lxvii). Over the course of twenty-four chapters, Cuddihy documents 1,189 years of political and intellectual development of search and seizure law in Britain and the United States. Cuddihy reviewed thousands of sources and the breadth of his research is immediately apparent; he has left little out. The details often overwhelm, but the patient reader will leave with a comprehensive knowledge and understanding of search and seizure history.

The book has four principal theses. First, Cuddihy finds that the protection intended by the Fourth Amendment is much broader than the protection granted by the Warrant Clause and that this broader protection captures many kinds of searches and seizures that the Framers found to be unreasonable (p. lxvi). Second, Cuddihy documents the emergence of the idea of a right against unreasonable search and seizure in Britain from its emergence among British intellectuals and through its political development (p. lxvi). Third, Cuddihy focuses on the development of the Warrant Clause on American soil, finding that America's contribution to the development of the clause outweighed Britain's contribution (p. lxvi). Finally, Cuddihy examines the political context in which the Fourth Amendment's ideas on search and seizure were formed, finding that the "ideas hinged on the character of the political and social environments of 1290-1791" (p. lxvii).

This Review examines some of Cuddihy's main arguments. Part I highlights certain aspects of search and seizure doctrine that Cuddihy finds had a consensus by 1791 and briefly looks at other areas that were unsettled. Part II describes some of the scholarly reaction that Cuddihy has ignited. Specifically, it outlines the points of agreement and disagreement between Cuddihy and Professors Thomas Davies and Fabio Arcila. (14) Finally, Part III compares Justice Scalia's use of history in a recent case with Cuddihy's findings and offers a few comments on the guidance that Cuddihy's book can provide to modem judges.

1. LESSONS LEARNED FROM HISTORY

   A founding principle of Cuddihy's work is that the Framers' ideas and intentions for the Fourth Amendment were molded by centuries of history (p. 734). What emerges is a picture of the gradual development of intellectual and popular movements against general searches in Britain and the acceleration of that movement in America in the decade and a half leading up to the American Revolution through the framing of the Fourth Amendment in 1791. (15) Cuddihy's research demonstrates that there was no single meaning of the Fourth Amendment. After reading Cuddihy's book, however, it is possible to separate topics of search and seizure into three categories: types of unreasonable searches and seizures that had a concrete consensus by 1791, concepts that remained unsettled by 1791, and modern ideas that were given very little thought during the framing era. (16)

   1. Consensus: Unreasonable Searches and Seizures

      To the extent that there are definitive understandings of the Framers' intentions, Cuddihy argues they lie mainly in the categories of unreasonable search and seizure. By 1791, he finds the Framers had come to a consensus that general warrants and searches, multiple specific warrants, nocturnal searches, and no-knock entries were considered unreasonable (pp. 739-50).

      1. General Warrants and General Searches

         The general warrant was the "preponderant motivation behind the [Fourth A]mendment." (17) The colonial experience with the general search and writs of assistance led America to reject the general warrant and replace it with the specific warrant. Rejection of the general warrant originated in Britain in the late 1600s (p. 268). English legal commentators such as Henry Care, Giles Jacob, William Hawkins, and Sir Matthew Hale began advocating for the replacement of general warrants with specific warrants in areas that were of political interest to them (pp. 268-80). Narrow applications for the specific warrant resulted in a coexistence of the general and specific warrant in Britain through the early 1700s (p. 286). Ironically, by 1760, Britain had witnessed the condemnation of the general warrant, but simultaneously experienced a "parallel explosion" in the use of general warrants (p. 286).

         Across the ocean, the colonists had a similar experience with general warrants and legislation authorizing general searches: "[d]oor-to-door searches and mass arrests characterized legislation in the colonies no less than in the mother country" (p. 193). Massachusetts began the revolt against general warrants and searches as it consistently clashed with Britain over excise searches and writs of assistance. (18)

         In the three decades between 1730 and 1760, Massachusetts witnessed a sudden increase in the number of general searches, as applications for general searches more than doubled. Searches for small pox, naval impressments, impost and customs searches, and searches related to an unsuccessful land bank (19) were marked by violence and greatly expanded the portion of the population that was subjected to promiscuous invasion of their homes (pp. 371-73, 357). Sir Edward Randolph, the chief customs agent of New England appointed by the Commissioners...