Citation

Sklansky DA. Columbia Law Rev. 2000; 100(7): 1739-1814.

Copyright

(Copyright © 2000, Columbia University School of Law)

DOI

10.2307/1123590

PMID

unavailable

Abstract

In several recent cases the Supreme Court has declared that the principal criterion for assessing whether searches and seizures are "unreasonable" within the meaning of the Constitution is whether they were allowed by eighteenth-century common law. This new form of Fourth Amendment originalism breaks dramatically not only with the ahistoric approach of the Warren and Burger Courts to search-and-seizure questions, but also with an older tradition of using the background of the Fourth Amendment to illuminate not its precise demands but its general aims. This Article traces the emergence of the new Fourth Amendment miginalism and argues that the doctrine has little to recommend it. The Court's revised understanding of the Fourth Amendment is faithful neither to the text of the Amendment nor to what we Know of its intent. And anchoring the Fourth Amendment in common law will do little to make it more principled of predictable, in part because common-law limits on searches and seizures were thinner, vaguer, and far more varied than the Court seems to suppose. What the common law has of value to offer Fourth Amendment law is what it has to offer constitutional law more generally: not its rules but its method.