In the current issue of the University of Chicago Law Review, Laura K. Donohue (Georgetown): The Original Fourth Amendment (83 U. Chi. L. Rev. 1181 (2016)). Here is the abstract:
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 notable 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.
I like this project so much I am including the table of contents as well:
INTRODUCTION
I. INHERITED DISCOURSE
A. English Cases Prohibiting General Warrants
1. Entick v Carrington (1765)
2. Wilkes v Wood (1763)
3. Leach v Money (1765)
B. English Legal Treatises’ Condemnation of General Warrants
C. Keeping the King’s Peace: The Known-Felon Exception
1. Public safety: powers of arrest and search
2. The hue and cry
D. Summary
II. COLONIAL EXPERIENCE
A. Paxton’s Case: The Child Independence
B. Influence of English Law
C. State Prohibitions
1. General warrants rejected
2. “Unreasonable” as violating the reason of the common law
3. The warrant requirement
III. CONSTITUTIONAL DIALOGUE
A. Ratification and Reservation
B. Adopting the Fourth Amendment
1. Drafting the text
2. Judicial affirmation
C. The Rise and Fall of the “Mere Evidence” Rule
IV. ANIMATING ARGUMENTS
CONCLUSION
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