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Originalism and the Fourth Amendment: In response to Jim's post below, surprisingly little of relevance is known about the original purpose of the Fourth Amendment. There was no policing at the time of the Framing, at least as we conceive of it today, and the Framers were mostly thinking about limiting particular types of very broad warrants that the King had permitted to search physical places and things. In any event, the Supreme Court wrestled with the issues that Jim raises below in three major cases: Olmstead v. United States (1928), Berger v. New York (1967), and Katz v. United States (1967). The gist of the cases (to really really oversimplify matters) is that Jim's argument had five votes in Olmstead, but became a minority view by the time of Berger and Katz.

  Indeed, Jim's argument sounds a lot like Justice Black's solo dissent from Berger. An excerpt:
    Eavesdroppers have always been deemed competent witnesses in English and American courts. The main test of admissibility has been relevance and first-hand knowledge, not by whom or by what method proffered evidence was obtained. It is true that, in England, people who obtained evidence by unlawful means were held liable in damages, as in Entick v. Carrington, 19 How.St.Tr. 1029. But even that famous civil liberties case made no departure from the traditional common law rule that relevant evidence is admissible even though obtained contrary to ethics, morals, or law. And, for reasons that follow, this evidentiary rule is well adapted to our Government, set up as it was to "insure domestic tranquility" under a system of laws. * * *
  While the electronic eavesdropping here bears some analogy to the problems with which the Fourth Amendment is concerned, I am by no means satisfied that the Amendment controls the constitutionality of such eaves-dropping. As pointed out, the Amendment only bans searches and seizures of "persons, houses, papers, and effects." This literal language imports tangible things, and it would require an expansion of the language used by the framers, in the interest of "privacy" or some equally vague judge-made goal, to hold that it applies to the spoken word. It simply requires an imaginative transformation of the English language to say that conversations can be searched and words seized.
  Interestingly, none of the current Justices seem to be interested in returning to Justice Black's approach. Occasional originalist Justice Scalia has written opinions that suggest an interest in creating new rules that capture the original role of the Fourth Amendment in light of technological change — see, for example, his opinion in Kyllo v. United States — but I don't think there are any votes on the current Court for Justice Black's approach.
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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:
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"Recovering the Original Fourth Amendment": In response to Randy's post, I don't have a Ph.D. in history and have more interest in legal history than training, but my sense is that the best and most careful originalist analysis of the Fourth Amendment — written largely to refute Amar's theory — is Thomas Y. Davies, Recovering the Original Fourth Amendment, 98 Mich. L. Rev. 547, 555 (1999) (.pdf link). It's worth a careful read if you're interested in these questions. An excerpt from the introduction:
  [The historical materials establish that] the Framers did not perceive the problem of search and seizure authority in the same way we now do. In fact, they reveal that the Framers did not even use the term "unreasonable searches and seizures" the way we do.
  The historical statements about search and seizure focused on condemning general warrants. In fact, the historical concerns were almost exclusively about the need to ban house searches under general warrants. Thus, the Framers clearly understood the warrant standards to be the operative content of the Fourth Amendment, as well as the earlier state search and seizure provisions. Moreover, the evidence indicates that the Framers understood "unreasonable searches and seizures" simply as a pejorative label for the inherent illegality of any searches or seizures that might be made under general warrants. In other words, the Framers did not address warrantless intrusions at all in the Fourth Amendment or in the earlier state provisions; thus, they never anticipated that "unreasonable" might be read as a standard for warrantless intrusions.
  Perplexing as that omission may appear from a modern perspective, it made sense in the context of the Framers' understanding of the problem of search and seizure. They saw no need for a constitutional standard to regulate the warrantless officer because they did not perceive the warrantless officer as being capable of posing a significant threat to the security of person or house. That was so because the ex officio authority of the peace officer was still meager in 1789. Warrant authority was the potent source of arrest and search authority. As a result, the Framers expected that warrants would be used. Thus, they believed that the only threat to the right to be secure came from the possibility that too-loose warrants might be used.
  The modern interpretation of "unreasonable searches and seizures" is the product of post-framing developments that the Framers did not anticipate. During the nineteenth century, courts and legislatures responded to heightened concerns about crime and disorder by expanding peace officers' ex officio authority to arrest and search. That expansion marginalized warrant authority and thus undercut the premises that had led the Framers to believe that they could control the officer by controlling the warrant. As a result, the new discretionary arrest and search authority of the officer posed a novel threat to the security of person and house.
  In the early twentieth century, the Supreme Court belatedly responded to the new threat to the right to be secure by extending constitutional search and seizure doctrine to the warrantless officer. It was at that time that the "warrant requirement" emerged as a salient issue. And it was at that time that the reference to "unreasonable searches and seizures" in the constitutional text was reinterpreted as though it articulated the relativistic concept of reasonableness-in-the-circumstances.
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