Thursday, March 24, 2011
Tracey Maclin and Julia Grace Mirabella (Boston University - School of Law and Boston University School of Law) have posted Framing the Fourth (Michigan Law Review, Vol. 109, pp. 1049-1076, April 2011) on SSRN. Here is the abstract:
Book Review of "The Fourth Amendment: Origins and Original Meaning", 602-1791. By William J. Cuddihy. Oxford and New York: Oxford Press. 2009. Pp. lxviii, 940. $165.
History is again an important element of the Supreme Court’s Fourth Amendment analysis. In Wyoming v. Houghton, Justice Scalia’s opinion for the Court announced that a historical inquiry is the starting point for every Fourth Amendment case. William Cuddihy’s book on the origins and original meaning of the Fourth Amendment will undoubtedly assist the Justices (and everyone else) in understanding the history of search and seizure law.
Cuddihy’s historical analysis is unprecedented. As Justice O’Connor has described it, Cuddihy’s work is “one of the most exhaustive analyses of the original meaning of the Fourth Amendment ever undertaken.” Cuddihy reviewed thousands of sources and has endeavored to identify the types of search and seizure that the Framers’ considered constitutional. However, Cuddihy’s scholarship has also triggered a sharp debate about the Framers’ intent among Fourth Amendment scholars.
This Review provides readers with some of Cuddihy’s main arguments. Part I identifies aspects of search and seizure doctrine that Cuddihy finds had a consensus by 1791 and briefly looks at other areas that were unsettled. Part II describes some of the scholarly reaction that Cuddihy’s book has ignited. Specifically, this section outlines the points of agreement and disagreement between Cuddihy and Professors Thomas Davies and Fabio Arcila. Finally, Part III compares Justice Scalia’s use of history in a recent case with Cuddihy’s findings, and offers a few comments on the guidance that Cuddihy’s book can provide to modern judges.