Jeremy Christiansen (Independent) has posted Returning to the Original Meaning of State Prohibitions on Unreasonable Searches and Seizures on SSRN. Here is the abstract:
All fifty states have search and seizure provisions in their state constitutions. And the overwhelming majority of those states have opted to interpret those provisions as including an exclusionary rule, similar to the Fourth Amendment. The problem with this approach is that it functionally excises law-abiding citizens from constitutional protection because if there is nothing to exclude there is no remedy. And where there is no remedy, there is no right. This Article will set out to provide a solution to this problem from the perspective of originalism.
Part I will first set the stage by contending that originalism is a pervasive and main-stream method of state constitutional interpretation. Nearly every state regularly invokes some iteration of originalism currently and has done so for at least 100 years. This prevalence of originalism in state constitutional interpretation provides a solid precedential platform for returning to the original meaning of search and seizure provisions.
Part II will then seek to apply originalism to uncover the original meaning of state search and seizure provisions. First, Parts II.A, B, and C will discuss how the text and structure of these provisions, along with the constitutional convention debates that accompanied their adoption, point to a nearly uniform original meaning, despite temporal and geographical distance between the various ratifications of these provisions. And the meaning this analysis leads to is that these provisions were not understood to incorporate an exclusionary rule, but were seen as a self-executing, constitutional tort. Part II.D will then examine the prevalent themes in case law discussing the tort of illegal search against both private parties and police officers, concluding that at their core, search and seizure provisions protect the people’s interests in their property, privacy, dignity, and reputation. Violations of these rights would result in the awarding of civil damages, including punitive damages where warranted.
Part III will address various critiques of the outcomes described in this Article and provide responses to those critiques.
Part IV will then conclude.
Posted at 6:02 AM