by Matt Barr

Original intent of the Fourth Amendment

Prof. Kerr has a short post at VC reproducing the meat of an "originalist analysis of the Fourth Amendment" by a Thomas Y. Davies. Its gist is that the Fourth was intended to ban "general warrants" -- which would mean, as an aside (this is me now, not Davies) that the important part of the Amendment was probably the "particularly describing the place to be searched, and the persons or things to be seized" bit.

[T]he 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.

I'll go along with that. The expansion in the 19th and 20th centuries of ex officio authority on the part of police was accompanied too by a more potent phenomenon not addressed in the excerpt (the article it's excerpted from is 200 pages long, so it may be there): the application of the Fourth Amendment to the states after the ratification of the Fourteenth Amendment.

Consider that Congress' explicit power to criminalize and punish action is sparse in Article I. Under the Necessary and Proper Clause it has (many, including Supreme Court Justices, argue) a blank check. But in quaint, bygone theory anyway, Congress' purview was federal law and federal matters. When we ask what the Framers might have thought of random sobriety checks, which involve neither warrants nor probable cause, it's fair to assume they would have thought they weren't federal in nature, whatever they were, and the Fourth Amendment didn't apply.

Presumably, there was a similar provision in the state. But that one might properly take into account how beat cops and, eventually, state troopers had to treat suspects they questioned on the street or pulled over in their cars. Applying a Fourth Amendment, drafted more than 200 years ago to rein in the potential federal power to harrass citizens with general warrants, to every police officer in the country is silly, and the results predictable: lots of blanks to fill in, and a Supreme Court all too ready to do it.

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