The Contingent Fourth Amendment

Abstract

In the past forty years, the U.S. Supreme Court has increasingly advanced the notion that the Fourth Amendment encompasses the common-law restrictions on searches and seizures that existed in 1791 when the Amendment was adopted. Yet, in case after case, the Court has encountered indeterminacy in the common law circa 1791. At times, the Court confronts this indeterminacy by concluding that, in the absence of a clear common-law rule, the Fourth Amendment does not govern the issue. At other times, in the face of indeterminacy, the Court falls back upon general Fourth Amendment principles. And on occasion the Court pretends that the indeterminacy does not exist. The reason for the absence of clear common-law search-and-seizure rules in 1791 is that the common law differed in important respects among the thirteen new American States. More importantly, the Anti-Federalists, those who demanded that the Bill of Rights be added to the Constitution as the price of ratification, recognized that the common law was different in every State. This differentiated common law included the common-law rights of Englishmen secured by state bills of rights. The Anti-Federalists saw the common-law, not as a fixed set of rules they were freezing in time, but as fluid, contingent, and evolving around them. Thus, if the Court is going to continue to interpret the Fourth Amendment as incorporating common-law search-and-seizure rules, it must come to terms with the fact that the common law of 1791 was viewed by a significant part of the population as contingent rather than fixed. And given that we owe the Bill of Rights to the Anti-Federalists, it makes some sense to interpret its commands in light of their view of the common law. This Article introduces a view of the Fourth Amendment – the contingent Fourth Amendment – that courts and commentators have overlooked. It asserts that we ought to conceive of our rights against unreasonable searches and seizures by federal officials as being largely contingent on state law. The only common-law rules that the Fourth Amendment freezes into the Constitution are those explicitly set forth in the Warrant Clause: rules against warrants that are general, issued on less than probable cause, or unsupported by oath or affirmation. The residuum of constitutional search-and-seizure rules are to be dictated by state law, even when it is a federal officer doing the searching or seizing. On this approach, as a matter of federal constitutional law, a federal officer is generally constrained by the search-and-seizure law of the State where a federal search or seizure occurs.