Not being a specialist on the Fourth Amendment, and having done no scholarship of my own on its original meaning, I am wondering what Orin's (or others') opinion is of Akhil Amar's reading of the Amendment in his book, The Bill of Rights (at pp. 68-77). Essentially, Akhil questions whether there is any "warrant requirement" in the Amendment at all. Why not? Well to begin with,

"the Fourth Amendment actually contains two different commands. First, all government searches and seizures must be reasonable. Second, no warrants shall issue without probable cause. The modern Supreme Court has intentionally collapsed the two requirements, treating all unwarranted searches and seizures--with various exceptions, such as exigent circumstances--as per se unreasonable." (68)

So what WAS the original meaning of the Amendment as reflected in its actual wording? I would prefer to cut and paste Akhil's own words, but, as it is in a book, I cannot (and it is too long for me to type), so let me paraphrase (with perhaps a bit of my own embellishment):

(1) At the Founding all persons engaged in what we now would consider "law enforcement" were subject to civil actions in tort for trespass for any searches deemed unlawful by a jury.

(2) There was no sovereign immunity in those days (See Chisholm v. Georgia).

(3) Obtaining a "warrant" FROM A JUDGE served

"as a sort of declaratory judgment whose preclusive effect could be subsequently pled in any later damage action. A lawful warrant, in effect, would compel a sort of directed verdict for the defendant government official in any subsequent lawsuit for damages." (69)

(4) In this way, warrants were a way to JUDICIALLY immunize persons engaged in searches from later civil liability at the hands of a JURY.

(5) Having experienced such abuses as the issuance of "general warrants" that granted sweeping immunity to the discretion of warrant-holders, in addition to requiring that searches be reasonable, the Founders ALSO limited the issuance of these judicial "warrants" to those based on "probable cause." Far from imposing a "warrant requirement" on all searches, then, the Fourth Amendment was actually a limitation on the issuance of warrants.

(6) With the growth of "sovereign immunity" (see e.g. 11th Amendment in response to Chisholm), the need of those engaged in searches to obtain an advanced judicial approval by means of a warrant to immunize themselves against tort liability for trespass was eliminated.

(7) Given the absence of civil tort liability for offending misconduct, courts created an incentive to seek judicial approval as the only means of controlling law enforcement by collapsing the "reasonableness" requirement into a judicial requirement to obtain a warrant--qualified by judicially created exceptions to this requirement.

(8) In response to Jim's query, trespass actions would lie for physical trespasses, not the sort of eavesdropping to which he refers, but this is not the issue I am asking about. I am concerned with the so-called "warrant requirement" of the Fourth Amendment. Did the Fourth Amendment require a warrant as criticisms of "warrantless searches" seem to assume? (The extent of Congress's power to limit by statute the President's power to monitor signals intelligence during wartime — e.g. by requiring a special "FISA warrant" — is an entirely different question.)

(9) It is also a separate question whether one can or ought to revive this purported original meaning of the Fourth Amendment without also reviving effective civil liability for police misconduct. Years ago, in my very first article as a law professor, I proposed replacing the "exclusionary rule" with a system of compensation for police misconduct available to the guilty, but especially to the innocent who now have no effective remedy for violations of their Fourth or Fifth Amendment rights. You can find this article here. The merits of my proposal are not what this post is about however. I am interested in the matter of original meaning.

While I always find Akhil's originalist interpretations intriguing, I do not always agree with them. For example, in my forthcoming article in the Texas Law Review ("The Ninth Amendment: It Means What it Says") I take issue with his interpretation of the Ninth Amendment (on page 123-24). So I do not assume that his originalist interpretation of the Fourth Amendment is necessarily correct. But it does make sense of the text and surrounding legal practice, and I am wondering if Orin or anyone else knows of any persuasive response to it.

(civil comments only please)

Update: Larry Solum is puzzled by my exchange with Marty Lederman in the comments. Check out his post here.