TABLE OF CONTENTS INTRODUCTION 254 I. THE TWO DOMINANT MODELS OF THE FOURTH AMENDMENT 257 A. The Warrant and Reasonableness Models 257 B. Historical Support for the Warrant and Reasonableness Models 260 1. History and the Reasonableness Model 260 2. History and the Warrant Model 264 II. LOCAL CONTROL OF SEARCH-AND-SEIZURE LAW: FROM EMPIRE TO CONFEDERATION TO REPUBLIC 267 A. Local Control Under the Empire: The Writs-of-Assistance Controversy 268 B. Local Control Under the Confederation: State Legislation Ratifying the 1783 Confederal Impost Resolution 276 C. Local Control Under the Republic: Contingent Federal Search-and-Seizure Authority in Early Legislation 282 III. THE SUPERIORITY OF THE LOCAL-CONTROL MODEL 294 A. The Anti-Federalists and the Fourth Amendment 294 B. The Anti-Federalists and the Reasonableness and Warrant Models 298 C. An Aside About Incorporation of a Local-Control Model of the Fourth Amendment 301 CONCLUSION 304 INTRODUCTION
When it comes to the Fourth Amendment, (1) history matters, perhaps now more than ever. The Fourth Amendment decisions of the U.S. Supreme Court in recent years have addressed such modern phenomena as electronic hotel registries, collection of DNA from arrestees, and GPS tracking of suspects. Nevertheless, the Court's opinions in these cases have witnessed such real and imagined framing-era characters as "'tithingmen... search[ing] public houses of entertainment on [the] Sabbath,'" (2) early Americans "open[ing] their mouths for royal inspection," (3) and, of course, the "very tiny constable." (4)
If history matters, then we ought to get that history right. There is a plethora of available information regarding our eighteenth-century predecessors' law, policy, and custom on search and seizure. Nevertheless, there is widespread disagreement over how to interpret those data. Some see the history surrounding the adoption of the Fourth Amendment as pointing to a general requirement that the government be reasonable when it searches and seizes. On this view, reasonableness is determined largely by after-the-fact jury determinations, not a before-the-fact warrant requirement. Others see that history as more strongly supporting a warrant requirement as a mechanism for judges to control the discretion of executive officers.
Neither side is entirely correct. Both types of regulation of government officials' conduct--a general reasonableness requirement backed by the threat of lawsuit and a requirement that executive discretion be tightly controlled by judicial supervision--appear in colonial America and the early Republic. Yet to say that a system is characterized by a particular type of regulation is far different from saying that such a regulation is either a necessary or a sufficient component of that system. Neither dominant model of Fourth Amendment history has captured the touchstone of the Amendment. That touchstone is neither warrants nor reasonableness, but local control.
This Article contends that the best way to understand the Fourth Amendment, as a historical matter, is as a reservation of local control over federal searches and seizures. (5) While there was a general consensus by 1791 that general warrants were unlawful, search-and-seizure rules were, in other respects, to be controlled by state law. Three episodes during the roughly thirty-year period surrounding the adoption of the Fourth Amendment--the writs-of-assistance controversy of the 1760s, the States' conditional ratifications of a national impost under the Articles of Confederation in the 1780s, and the enactment of two early federal statutes in the 1790s--each evoke the theme of local control over central authority vis-a-vis searches and seizures. This theme of local control dovetails almost perfectly with the motivation of the Anti-Federalists in demanding a Bill of Rights in exchange for their reluctant acquiescence to the Constitution: the reservation of state power regarding the most important spheres of human activity.
Recent scholarship has begun to question the sharp dichotomy in constitutional law between rights and structure, and to rediscover the linkages between them. (6) In isolating a powerful theme of federalism in the Fourth Amendment, this Article is of a piece with that recent scholarship. Neither dominant historical model of the Fourth Amendment adequately accounts for this strong federalism component of the Bill of Rights. Only the Local-Control Model can do so.
Part I examines, and offers a brief critique of, the two dominant models of interpreting the history surrounding the Fourth Amendment: the Reasonableness Model and the Warrant Model. Part II discusses at length three episodes that shed light on the original understanding of the Fourth Amendment. The first, the writs-of-assistance controversy of the 1760s, has been the subject of much commentary. However, few have appreciated this episode for what it was: not a unified colonial revolt against general warrants, but a set of particularized assertions of local control, differing by colony, against Crown authority. The second, the States' placement of conditions on their ratification of a national impost under the Articles of Confederation, has almost entirely escaped the notice of Fourth Amendment scholars. This episode also involved particularized conditions, varying by State, placed on central search-and-seizure authority. Finally, the enactment of section 33 of the Judiciary Act of 1789 and section nine of the Militia Act of 1792, which explicitly calibrated federal search-and-seizure authority to that of the respective States, suggests an understanding of the Fourth Amendment heavily infused with federalism principles. Part III posits local control of searches and seizures as the touchstone for each of these three episodes in the early American experience. It attempts to demonstrate the superiority of the Local-Control Model as a historical matter by tying these three episodes to the federalism-based motivations of the Anti-Federalists in demanding constraints on federal search-and-seizure authority.
THE TWO DOMINANT MODELS OF THE FOURTH AMENDMENT
The central puzzle of the Fourth Amendment has always been what the relationship is between its two clauses. The first, the Reasonableness Clause, demands that all governmental searches and seizures of "persons, houses, papers, and effects" be reasonable. (7) The second, the Warrant Clause, spells out three requirements before a warrant may be issued: probable cause, oath or affirmation, and particularity. (8) But what is the relationship between these two Clauses? Some have asserted that the Amendment means that a warrant must be used to render a search or seizure reasonable, at least presumptively. We can call this the "Warrant Model." Others have interpreted it to mean that reasonableness of searches and seizures is generally to be measured independently of whether a warrant was used, the Warrant Clause telling us only what requirements must be met if a warrant is used. We can call this the "Reasonableness Model." The U.S. Supreme Court has never clearly settled upon either view. Instead, it has paid lip service to the Warrant Model while vacillating back and forth between the two. Moreover, adherents of each view can find some support in the historical record surrounding adoption of the Fourth Amendment.
THE WARRANT AND REASONABLENESS MODELS
In Craig Bradley's helpful taxonomy, "there are two, and only two, ways of looking at the [F]ourth [A]mendment" that will allow for coherence of doctrine and consistency of application. (9) What Bradley calls "the 'no lines' and 'bright line' approaches" (10) roughly equate to the Reasonableness Model and the Warrant Model. Pursuant to the former, "[a] search and seizure must be reasonable, considering all relevant factors on a case-by-case basis." (11) Pursuant to the latter, "a warrant is always required for every search and seizure when it is practicable to obtain one." (12)
Both models have found expression in the Supreme Court's Fourth Amendment jurisprudence. Each has, on occasion, held dominance. Indeed, to use Justice Scalia's evocative language, the Court has "lurched back and forth between imposing a categorical warrant requirement and looking to reasonableness alone." (13) For example, in United States v. Lefkowitz, in 1932, the Court articulated the warrant preference rule: "[T]he informed and deliberate determinations of magistrates empowered to issue warrants as to what searches and seizures are permissible under the Constitution are to be preferred over the hurried action of officers and others who may happen to make arrests." (14) Yet, a mere fifteen years later, in Harris v. United States, the Court embraced the Reasonableness Model: "The test of reasonableness cannot be stated in rigid and absolute terms... The Fourth Amendment has never been held to require that every valid search and seizure be effected under the authority of a search warrant." (15) Less than a year later, the Court returned to a reading of the Fourth Amendment more consistent with the Warrant Model. It declared that "[w]hen the right of privacy must reasonably yield to the right of search is, as a rule, to be decided by a judicial officer, not by a policeman or government enforcement agent," unless "exceptional circumstances" exist. (16) But barely two years after that, in United States v. Rabinowitz, the Court reversed course once more:
[T]he Constitution does not say that the right of the people to be secure in their persons should not be violated without a search warrant if it is practicable for the officers to procure one. The mandate of the Fourth Amendment is that the people shall be secure against unreasonable searches. (17) Rabinowitz provided something of a showcase for the battle between the two views. For the majority, espousing the Reasonableness Model, Justice Minton set forth the proposition that the Fourth Amendment...