Georgetown University Law Center Scholarship @ GEORGETOWN LAW 2016 The Original Fourth Amendment Laura K. Donohue Georgetown University Law Center, [email protected] This paper can be downloaded free of charge from: https://scholarship.law.georgetown.edu/facpub/1616 http://ssrn.com/abstract=2726148 83 U. Chi. L. Rev. 1181 (2016) This open-access article is brought to you by the Georgetown Law Library. Posted with permission of the author. Follow this and additional works at: https://scholarship.law.georgetown.edu/facpub Part of the Constitutional Law Commons The Original Fourth Amendment Laura K. Donohue† The meaning of the rights enshrined in the Constitution provides a critical baseline for understanding the limits of government action—perhaps nowhere more so than in regard to the Fourth Amendment. At the time it was adopted, the Fourth Amendment prohibited the government from entering into any home, warehouse, or place of business against the owner’s wishes to search for or to seize persons, papers, or effects, absent a specific warrant. Consistent with English common law, the nota- ble exception was when law enforcement or citizens were pursuing a known felon. Outside of such circumstances, search and seizure required government officials to approach a magistrate and, under oath, to provide evidence of the suspected offense and to particularly describe the place to be searched and persons or things to be seized. Scholars’ insistence that the Fourth Amendment does not entail a general protection against government entry into the home without a warrant does more than just fail to appreciate the context. It contradicts the meaning of the text itself, which carefully lays out the conditions that must be met before the government may intrude. Reclaiming this meaning is essential for understanding the scope of the original Fourth Amendment and for ensuring a doctrine that reflects fidelity to the founding principles. INTRODUCTION .................................................................................................. 1182 I. INHERITED DISCOURSE ............................................................................... 1195 A. English Cases Prohibiting General Warrants ................................. 1196 1. Entick v Carrington (1765). ........................................................ 1196 2. Wilkes v Wood (1763). ................................................................. 1199 3. Leach v Money (1765). ................................................................ 1204 † Professor of Law, Georgetown University Law Center. Special thanks to Randy Barnett, Morgan Cloud, Julie Cohen, William Cuddihy, Jennifer Daskal, Thomas Davies, Daniel Ernst, Erin Kidwell, Martin Lederman, John Mikhail, Paul Ohm, James Oldham, Julie O’Sullivan, Michel Paradis, Brad Snyder, Geoff Stone, William Treanor, and Peter Winn, who provided thoughtful comments on earlier versions of the Article. Ladislas Orsy kindly helped to verify the meaning of the original Latin texts. My appreciation extends to participants at the Georgetown Law faculty workshop, Georgetown Law’s Constitu- tional Law Seminar, the 2015 Berkeley-GW 8th Annual Privacy Law Scholars Conference, the Washington, DC National Security Law Roundtable, and the Retired Partners Group at Arnold & Porter LLP for their critiques. Jeremy McCabe, Thanh Nguyen, Ellen Noble, and Morgan Stoddard kindly assisted in helping to obtain many materials. Betsy Kuhn copyedited the penultimate text, which is reflected in part in chapters four and five of my recently published book, The Future of Foreign Intelligence: Security and Privacy in a Dig- ital Age (Oxford 2016). The editors at The University of Chicago Law Review dedicated time and effort to ensuring the quality of the final Article. It is much appreciated. 1181 1182 The University of Chicago Law Review [83:1181 B. English Legal Treatises’ Condemnation of General Warrants ....... 1207 C. Keeping the King’s Peace: The Known-Felon Exception ................. 1221 1. Public safety: powers of arrest and search. ............................... 1223 2. The hue and cry. ......................................................................... 1231 D. Summary ........................................................................................... 1235 II. COLONIAL EXPERIENCE .............................................................................. 1240 A. Paxton’s Case: The Child Independence .......................................... 1244 B. Influence of English Law .................................................................. 1252 C. State Prohibitions ............................................................................. 1264 1. General warrants rejected. ......................................................... 1265 2. “Unreasonable” as violating the reason of the common law. .... 1269 3. The warrant requirement. .......................................................... 1276 III. CONSTITUTIONAL DIALOGUE ...................................................................... 1280 A. Ratification and Reservation ............................................................ 1283 B. Adopting the Fourth Amendment .................................................... 1298 1. Drafting the text. ........................................................................ 1298 2. Judicial affirmation. ................................................................... 1305 C. The Rise and Fall of the “Mere Evidence” Rule ............................... 1308 IV. ANIMATING ARGUMENTS ............................................................................ 1314 CONCLUSION ..................................................................................................... 1325 INTRODUCTION As a term of art, “originalism” is a relative newcomer to con- stitutional debate. It emerged in the conservative backlash to the Warren Court and the dialectic that ensued over the appropriate role of the judiciary in interpreting and applying the Constitu- tion.1 Nevertheless, the basic concept—understanding the text ac- cording to its original meaning or the intent of those who intro- duced the provisions—is not a new idea. For centuries, lawyers, judges, and scholars have recognized the importance of discerning 1 See, for example, Robert H. Bork, Neutral Principles and Some First Amendment Problems, 47 Ind L J 1, 5–6, 8 (1971) (critiquing the Warren Court on the grounds that “[i]f we have constitutional rights and liberties already, rights and liberties specified by the Constitution, the Court need make no fundamental value choices,” and stating that “[t]he judge must stick close to the text and the history, and their fair implications, and not construct new rights,” as an attack on Griswold v Connecticut, 381 US 479 (1965)) (citation omitted). See also generally William H. Rehnquist, The Notion of a Living Con- stitution, 54 Tex L Rev 693 (1976) (criticizing living constitutionalism). In 1980, Professor Paul Brest responded with an article credited with coining the term “originalism.” See Paul Brest, The Misconceived Quest for the Original Understanding, 60 BU L Rev 204, 204 (1980). Academic debate followed. See generally, for example, Richard S. Kay, Adherence to the Original Intentions in Constitutional Adjudication: Three Objections and Responses, 82 Nw U L Rev 226 (1988); H. Jefferson Powell, The Original Understanding of Original Intent, 98 Harv L Rev 885 (1985). 03 DONOHUE ART FINAL (DO NOT DELETE) 9/11/2016 8:17 PM 2016] The Original Fourth Amendment 1183 the meaning of the law at its inception.2 In 1988, the Department of Justice (DOJ) made its adherence to this approach explicit, ar- guing that fidelity to the original meaning of the Constitution was neither conservative nor liberal. It embodied “a jurisprudence faithful to our Constitution.”3 The DOJ’s Office of Legal Policy di- rected officials, when text may be ambiguous or vague, to look to sources that indicated “the intent of those who drafted, proposed, and ratified that provision (i.e., the Founders).”4 Accordingly, all briefs were to “clearly set out the text and original understanding of the relevant constitutional provisions, along with an analysis of how the case would be resolved consistent with that understanding.”5 In the ensuing decades, originalism has become an important mode of constitutional interpretation.6 It has been the deciding 2 See, for example, Gibbons v Ogden, 22 US (9 Wheat) 1, 188 (1824) (“[T]he enlight- ened patriots who framed our constitution, and the people who adopted it, must be under- stood to have employed words in their natural sense, and to have intended what they have said.”); Reynolds v United States, 98 US 145, 162 (1879) (“The word ‘religion’ is not defined in the Constitution. We must go elsewhere, therefore, to ascertain its meaning, and no- where more appropriately, we think, than to the history of the times in the midst of which the provision was adopted.”); Ex parte Bain, 121 US 1, 12 (1887) (“It is never to be forgotten that, in the construction of the language of the Constitution here relied on, as indeed in all other instances where construction becomes necessary, we are to place ourselves as nearly as possible in the condition of the men who framed that instrument.”); United States v Lovett, 328 US 303, 321 (1946) (drawing an interpretive distinction between “the broad standards of fairness written into the Constitution (e.g. ‘due process,’ ‘equal protection of the laws,’ [and] ‘just compensation’),”