Recovering the Original Fourth Amendment

Claims regarding the original or intended meaning of constitutional texts are commonplace in constitutional argument and analysis. All such claims are subject to an implicit validity criterion – only historically authentic assertions should matter. The rub is that the original meaning commonly attributed to a constitutional text may not be authentic. The historical Fourth Amendment is a case in point. If American judges, lawyers, or law teachers were asked what the Framers intended when they adopted the Fourth Amendment, they would likely answer that the Framers intended that all searches and seizures conducted by government officers must be reasonable given the circumstances. That answer may seem obvious – the Amendment begins with a clause that states that “[t]he right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated….” Indeed, this language has been identified as a prime example of how the original understanding can be gleaned directly from constitutional text – what could “unreasonable” mean if not inappropriate in the circumstances? Of course, the reference to “unreasonable searches and seizures” does not exhaust the intended meaning of the text – the standards for valid arrest or search warrants that are set out in the second clause also show that the Framers intended to ban the use of too-loose, or “general,” warrants. Thus the Framers intended to require that all searches and seizures be reasonable and also to forbid use of general warrants. There is a difficulty embedded in the apparently obvious meanings of the two clauses, however – the text does not indicate how they fit together. It does not say whether a valid warrant should be the usual criterion for a “reasonable” police intrusion, or whether “Fourth Amendment reasonableness” should be assessed independently of use of a warrant. Put more concretely, it does not indicate whether or in what circumstances arrests or searches must be made pursuant to a warrant. Thus, it does not say when an officer should be allowed to intrude on the basis of his own judgment, or when he should be required to obtain prior approval from a judge. Largely because of this silence in the text, the need for warrants has been the central issue in the modern debate regarding search and seizure authority.