Saturday, March 12, 2011
Thomas Y. Davies (University of Tennessee College of Law) has posted Can You Handle the Truth? The Framers Preserved Common-Law Arrest and Search Rules in 'Due Process of Law' - 'Fourth Amendment Reasonableness' is Only a Modern, Destructive, Judicial Myth (Texas Tech Law Review, Vol. 43, pp. 51-136, 2010) on SSRN. Here is the abstract:
The conventional academic account of Fourth Amendment (or search and seizure) history has been shaped by uncritcal acceptance of claims in Supreme Court opinions that the reference to "unreasonable searches and seizures" in that text was intended to created a broad "reasonableness" standard for assessing all government arrests and searches, whether made with or without warrant. This article marshals salient evidence from the author’s more detailed prior articles to demonstrate that this claim is merely a prochronistic myth that grossly understates the criminal procedure standards the American Framers thought they had preserved.
The article first describes the actual common-law standards for criminal arrests and related searches to show that mere "reasonableness" was never recognized as a standard in framing-era sources. It also documents that the accusatory common-law criminal arrest standards were actually understood to be salient features of the "law of the land" and "due process of law" protections set out in other constitutional provisions, and that criminal search authority was essentially an appendage of arrest authority. Thus there was neither room nor reason for the Fourth Amendment to address warrantless arrests or searches, or even criminal arrest warrants. Rather, the only unsettled search issue at the time of the framing was the scope of legislative authority regarding revenue search warrants, so the Fourth Amendment was framed simply to ban Congress from authorizing use of too-loose warrants for revenue searches of houses, while the Fifth Amendment due process of law clause preserved criminal procedure standards. (Along the way, the article identifies deficiencies in recent historical claims by Professors Fabio Arcila (notes 122, 204) and Thomas Clancy (note 225).)
The article then describes how nineteenth century judges destroyed the original understanding of due process of law and thus left federal Supreme Court justices free to reinvent modern "search and seizure" doctrine under the Fourth Amendment, to invent the concept of Fourth Amendment reasonableness in the 1925 Carroll decision to justify warrantless searches where lawful arrests could not be made, and more recently to exploit the flexible character of reasonableness to effectively create discretionary police arrest and search authority comparable to that conferred by the general warrant which the original Fourth Amendment was meant to abolish.