Akhil Amar's Originalist Reading of the Fourth Amendment:
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.

Related Posts (on one page):

  1. "Recovering the Original Fourth Amendment":
  2. Akhil Amar's Originalist Reading of the Fourth Amendment:
  3. Originalism and the Fourth Amendment:
Bruce Hayden (mail) (www):
In theory, I am all for the reinstatement of civil liability for unreasonable searches. I think that it was one of the Conspirators a month or so ago linked to an article on the militarization of the police (Cato maybe?) A good part of the abuse described in the article would likely be overcome by repealing some sovereign immunity.

In practice though, one screwup by one public employee, could easily bankrupt a smaller jurisdiction, such as a small town, given our present tort environment. Indeed, I might suggest that soverieign immunity erosion to some extent seems to have paralleled the rise in tort liability, and, in particular, tort damages.
8.19.2006 10:01am
M. Lederman (mail):
Randy: The place to start — and perhaps finish — is Carol Steiker's Second Thoughts About First Principles, 107 Harv. L. Rev. 820 (1994). She doesn't really argue the alternative originalist case (she cites others who do); instead, she shows how that question is not terribly helpful or illuminating — especially in light of the protean "unreasonableness" standard of the 4A — and why the Warren Court's basic framework makes sense in the modern police state (which bears very little resemblance to what the framers and ratifiers knew). This excerpt from the Intro gives a flavor:

A common reaction to invocations of intentionalist authority is to fight fire with fire. Judges and scholars who support some type of warrant requirement — or "warrant preference" — and the exclusionary rule have invoked the same sort of historical evidence on their side. [FN17] This sort of response dominated the American Bar Association panel discussion, chaired by Justice David Souter, at which Professor Amar first presented the germ of his Fourth Amendment First Principles. [FN18]

Professor Nadine Strossen offered a spirited "originalist" rejoinder, contending that Amar overemphasized the importance to the Framers of the Wilkes case (which Amar used to show the Framers' fear of warrants and reliance upon juries as a constitutional remedy) as compared with the writs of assistance case of 1761 (which Strossen used to show the Framers' fear of unbridled executive discretion). [FN19] Another panelist, Professor Tracey Maclin, suggested at the time that the history was "a wash," [FN20] but has since argued that colonial grievances against ex officio searches by customs officers — searches authorized by neither warrant nor writ of assistance — suggest that a Fourth Amendment principle of "distrust of discretionary police power" underlies the modern warrant preference rule. [FN21]

I find this sort of debate puzzling and ultimately not particularly helpful in arriving at "first principles" of Fourth Amendment interpretation. My puzzlement may stem partly from the much-discussed difficulties of forming any clear picture of what the "Framers" (or do we mean "ratifiers"?) can be said to have "intended" (or should we say "expected"?) about the Constitution. [FN22] But only partly. Even if I were convinced that one could derive plausible versions of the Framers' intentions by viewing the Constitution's text in historical context, I would question the programmatic implications of those intentions. Why? First, almost no one, and certainly not Professor Amar, [FN23] believes that we should be bound for all time by the specific intentions or expectations of the Framers about, say, precisely what kinds of searches are "reasonable" ones or precisely what sorts of remedies are required for violations of the Fourth Amendment. At some point, all but the most absolutist originalists [FN24] formulate notions of the Framers' intent at some higher level of abstraction, a move that necessarily renders less significant even highly persuasive historical claims about more specific intentions. [FN25] Moreover, the Fourth Amendment, more than many other parts of the Constitution, appears to require a fairly high level of abstraction of purpose; its use of the term "reasonable" (actually, "unreasonable") positively invites constructions that change with changing circumstances.

If we accept this proposition — that the construction of the Fourth Amendment's "reasonableness" clause should properly change over time to accommodate constitutional purposes more general than the Framers' specific intentions — Professor Amar's focus on colonial history to support a disjunctive reading of the "reasonableness" clause and the Warrant Clause and to attack the exclusionary rule seems short-sighted. Such a focus ignores at least two crucial changes between colonial times and the present that must inform our current readings of the Fourth Amendment as a whole. First, at the time of the drafting and ratifying of the Fourth Amendment, nothing even remotely resembling modern law enforcement existed. The invention in the nineteenth century of armed, quasi-military, professional police forces, whose form, function, and daily presence differ dramatically from that of the colonial constabulary, requires that modern-day judges and scholars rethink both the relationship between "reasonableness" and "warrants" and the nature of Fourth Amendment remedies. Second, the intensification of inter-racial conflict in our society during the Civil War and Reconstruction, and the myriad ways in which this conflict has intersected with law enforcement, likewise necessitate new constructions of the Fourth Amendment. It is no accident that the modern pillars of Fourth Amendment law attacked by Professor Amar were significantly fortified during the 1960s at the same time that the Supreme Court and the rest of the country began to address systematically our legacy of racial discrimination.

But Professor Amar's argument against the warrant requirement and the exclusionary rule only begins with resort to the intent of the Framers as evinced by text and colonial history. Professor Amar gives at least equal time to the assertion that the warrant requirement and the exclusionary rule simply make no sense as viable expressions of either constitutional right or constitutional remedy. Here, Professor Amar is on considerably stronger ground, although once again I believe that he is ultimately — and importantly — mistaken. There can be no doubt that the Supreme Court's Fourth Amendment jurisprudence is riddled with inconsistencies; the Court has waffled considerably over time and through changing membership on central questions regarding the construction of the Amendment. Nonetheless, the modern Court's (at least occasional) focus on warrants and probable cause as the touchstones of constitutional "reasonableness" and on the exclusionary rule as a distinctive Fourth Amendment remedy can and should be defended against the more freewheeling "reasonableness" inquiry and the civil damages remedy proposed by Professor Amar. Exactly the same changed circumstances that render the particular concerns of our colonial ancestors anachronistic today also explain our modern focus on warrants, probable cause, and exclusion of evidence as central elements of a workable Fourth Amendment order.
8.19.2006 10:18am
If one wanted a grand unifying theory of what the Fourth Amendment is about, I'd suggest it is accountability before a neutral tribunal applying an objective standard.

That could happen after-the-fact insofar as the conduct in question was subject to a tort claim and the Fourth Amendment mandated the court apply a reasonableness standard. It could also happen before-the-fact insofar as the conduct was authorized by a warrant and the Fourth Amendment mandated a probable cause standard.

And over time, whether the after-the-fact or before-the-fact path was used (or perhaps both in combination) could vary. But as I see it, the Fourth Amendment appears to be designed to ensure that at some point or another, all relevant conduct will be subject to scrutiny under an objective standard by a neutral tribunal.

Which means the TSP might really be an obvious violation of the Fourth Amendment, if it provides for no such scrutiny of the surveillance either before or after the fact.
8.19.2006 11:42am
Bruce Hayden wrote:
...I think that it was one of the Conspirators a month or so ago linked to an article on the militarization of the police (Cato maybe?) A good part of the abuse described in the article would likely be overcome by repealing some sovereign immunity.
I think you're referring to Radley Balko's "Overkill".
8.19.2006 12:20pm
Bruce Hayden (mail) (www):
Fub. That looks like it.

For those who haven't read it, the paper cronicles the rapid militarization of the police - most notably in their SWAT teams. Tiny towns now have them, thanks to the War on Drugs, and the Reagan Administration opening our military arsonals to the police. But if you have such a unit, the tendency is to use it, and the tendency of military trained police is to use military tactics in their policing, and in particular, in their tendency towards using massive, overwhelming force to execute warrants.

The way that I see this tying into the change in the 4th Amdt. from the older bifurcated interpretation to the more modern merged interpretation, is that the burden of sovereign immunity seems now to be immunizing the police from liability to a fairly great extent by so significantly raising the bar to suit and recovery.
8.19.2006 1:20pm
Randy Barnett (mail) (www):

Thanks for posting the excerpt from Carol Steiker's article. I would certainly begin there, but would hardly end there. I would also want to consult the originalist critiques of Amar's position to which she refers but does not really summarize in this excerpt.

One thing that struck me about this excerpt is how "1990s" it sounds. Most of it is the standard critique of originalist methodology, without any consideration of how originalism has developed since then. And if original meaning is a "starting point" or "modality," as so many nonoriginalists contend, we still must determine original meaning as best we can.

And haven't we been hectored over the past 10 years by Larry Kramer, Mark Tushnet, and others about "popular constitutionalism" and "taking the Constitution away from the Courts"? Carol's analysis seems naively to assume that Courts should be protecting constitutional rights, rather than leaving it to "The People." (This is tongue-in-cheek, of course, as I remain a strong proponent of judicial review.)

As a former prosecutor, I support the exclusionary rule as a judicial remedy for official misconduct in the absence of a superior replacement. My 1983 Emory article is solely devoted to explaining why a properly constructed system of restitution would deter misconduct better than excluding evidence now does. When I wrote it, however, I had no idea how my proposal tracked the original meaning of the Fourth Amendment. And its adoption would require legislation by the popular branches upon whom popular constitutionalists say we should be relying to protect our rights.

One point with which I agree with Carol is that the "reasonableness" standard provided by the Fourth Amendment leaves lots of room for construction. But this does not entail that "reasonable" searches always require warrants in every context. And perhaps especially not in the context of data mining, or signals intelligence during wartime. The virtue of Akhil's originalist approach, if it turns out to be correct, is that it liberates us from the simplistic "warrantless search" debate in which we are presently locked.
8.19.2006 1:56pm
Fran (mail) (www):
According to the administration's attorney general we are not at war:

GONZALES: There was not a war declaration, either in connection with AlQaida or in Iraq. It was an authorization to use military force.

I only want to clarify that, because there are implications. Obviously, when you talk about a war declaration, you're possibly talking about affecting treaties, diplomatic relations. And so there is a distinction in law and in practice. And we're not talking about a war declaration.
This is an authorization only to use military force.
8.19.2006 2:35pm
History Prof:
With all due respect, Amar is wrong about the eleventh amendment if that's what he said. The eleventh amendment did not invent sovereign immunity; it reaffirmed it. Sovereign immunity was presumed to belong to states in the era. Getting rid of it was the novelty. Those like Justice James Wilson may have been right that it is an unreasonable thing to have, and one could argue that the idea is not compatible with the constitution in principle. Even so, the people decided that it belonged to the states. The constitution, after all, is not simply logical, the constitution became law when it was ratified by the people. Hence the people might, and in fact did, ratify a constitution that was imperfect in theory. When the Court questioned sovereign immunity in Chisholm v. Georgia, the people passed an amendment to secure it.

On the question of wiretaps, not all the precedents should be from the post 1789 period. The period of the revolutionary war is also relevant. After all, we are dealing with the question of what powers of government are legitimate to exercise, and how they may be exercised, in wartime.
8.19.2006 6:56pm
Stu (mail):
Speaking of tort liability for violations of the 4th amendment, I would have liked to see tort liability of the police that seized guns from lawful owners in New Orleans last year.
8.21.2006 12:25pm