Originalism and the Fourth Amendment

My co-blogger Randy Barnett raises some classic questions about originalism in his post below, Can Lawyers Ascertain the Original Meaning of the Constitution? Having spent some time trying to grapple with the original meaning of the Fourth Amendment specifically, especially in the course of writing this recent article, I thought I would offer some thoughts on the specific challenges of Fourth Amendment originalism.

Based on my own research, my sense is that Fourth Amendment originalism is really hard for lawyers to do accurately. On one hand, there is general agreement that the Fourth Amendment was enacted in response to a series of famous cases and incidents from the mid-to-late 18th Century. The King’s Officials had used general warrants and writs of assistance, leading to some judicial opinions and famous arguments, and the colonists enacted search and seizure amendments (first in the state constitutions, then in the federal constitution) to forbid those practices. But while these examples tell us the examples of things that the Framers had in mind, they don’t answer the lawyer’s question: What principles do these examples reflect? As I wrote in my recent article on the meaning of “searches,” the translation from example to principle is where all the lawyer’s work is done:

Devising a test from a set of examples raises a level-of-generality problem: Examples alone cannot identify how far beyond their facts the principle should extend. Clearly, physical entry of individuals inside the home to find evidence counts as a search. At the narrowest level, then, a search might be only a physical entry by government officials. A broader approach could focus on whether the officials interfered with property interests, such as whether a trespass occurred. Or perhaps the test should be whether the government interfered with privacy, with physical intrusion being just one example of government acts that violate privacy interests. Examples alone cannot identify which principle to use.

Identifying that principle as a matter of history requires historical sources that indicate the principle that was understood at the time. And in the case of the Fourth Amendment, there is surprisingly little to guide us. The second part of text of the Fourth Amendment tells us a lot about the requirements of warrants, but that’s just a small part of the Fourth Amendment and not very controversial. The real action is with the first part of the text is written in a general way that doesn’t tell us a lot in term of specifics of what the authors had in mind. Consider the text: “the right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated.” We get specifics on what places were thought to be protected — “persons, houses, papers, and effects”– but not much on what protections applied there. “Unreasonable searches and seizures” could mean many things. So we have historical examples, and then the expected debates over the principle to be extracted from them, with (it seems) as many views among legal scholars as there are legal scholars.

Fourth Amendment originalism is made more difficult by the uncertain relationship between then-existing search and seizure law and the Fourth Amendment itself. At the time the Fourth Amendment was enacted, there was at least some amount of caselaw and treatise work on the rules that government officials and private citizens had to follow when arresting suspects and making searches. We know that the Fourth Amendment was enacted in part to overturn some specific practices of the King’s officials, some of which had been deemed contrary to then-existing search and seizure principles and some of which had not been. But we don’t know which parts of that background search and seizure law were understood to be incorporated into the Fourth Amendment. For example, if search warrants in 1791 were required by common law or statutory law to be executed at a specific time in a specific way, which parts of those common law and statutory rules should be deemed part of the originalist Fourth Amendment, versus just common law and statutory rules that the Constitution didn’t touch? Again, we don’t have original sources that tell us how to answer these questions.

Further, all of that assumes that there is agreement on what the background rules were. But looking through the original sources — the great treatises and the major cases — it’s surprising how little we know. We don’t know very much in large part because the idea of police forces to investigate crime was largely invented in the 19th Century. In the late 18th century, victims played the most significant role in gathering evidence to prove crimes, with the assistance of government officials. As a result, we have clear understandings of a few issues that were common at the time (the law of arrests, for example), but there’s surprisingly little known about a lot of the issues that we’re interested in today. Even issues on which there are cases are often quite cryptic. And while there are more sources later in the 19th Century, it’s not clear if the later understandings are consistent with what the understandings were in the 18th Century.

This doesn’t mean that Fourth Amendment originalism is impossible, obviously, either by lawyers or by historians. Whether there is an answer to the original meaning of constitutional text depends on the specific text and the specificity of the question asked. But I do think it’s very hard for a lot of major questions of current interest, and should be approached with caution. On the bright side, I think it’s a great area for future scholarship: There has been a recent rebirth of interest in Fourth Amendment history, and there is still a lot to be studied. But it’s a great area for future work in part because it’s very difficult.