Part 1 – Originalism – Fourth Amendment Method of Interpretation

A new approach to the Fourth Amendment has recently sprouted in Supreme Court jurisprudence.(212) Perhaps reacting to the flexible and judge-centered social norms model, the more conservative Justices have attempted to develop a method that restrains judicial discretion and provides more determinant answers.(213) This model asserts that the Fourth Amendment codified and constitutionalized common law practices that existed before the ratification of the Bill of Rights.(214) Using this approach, a court facing a novel Fourth Amendment question should look not to the current social norms but to common law rules from the eighteenth century.(215) If the practice can be analogized to a type of search that was unlawful at eighteenth-century common law, then it violates the Constitution; otherwise it is permissible.(216) The world has changed in nontrivial ways since the framing of the constitution, so there will inevitably be gaps in this method, but founding era common law certainly can provide a basic store of legal content that courts can use to interpret vague text.(217)

In a number of cases heard by the Supreme Court, Justices have been frustrated by the mass of exceptions and exceptions to exceptions engendered by the Court’s Fourth Amendment precedents, and it has been argued that the path out of this confusion should be sought by returning to the first principle that the ‘reasonableness’ requirement of the Fourth Amendment affords the protection that the common law afforded.(218) The tenses used in these arguments suggest that it is founding-era common law that should be determinative: the Fourth Amendment “affords” those protections that the common law “afforded” in the past.(219)

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