Can You Handle the Truth? The Framers Preserved Common-Law Criminal Arrest and Search Rules in "Due Process of Law"—"Fourth Amendment Reasonableness" Is Only a Modern Destructive, Judicial Myth
Davies, Thomas Y.
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This article begins by identifying the salient differences between the authentic history and the conventional history of the subject now called "search and seizure"-a broad, modem label for arrests, searches, and other government intrusions that itself reflects the influence of the Supreme Court's Fourth Amendment mythology. Part I sketches out the salient features of the conventional search-and-seizure history of Fourth Amendment reasonableness and identifies some of the salient shortcomings of that account. Part II discusses the authentic original understanding of constitutional arrest and search standards. Part III then traces some of the important episodes in which Supreme Court justices destroyed the Framers' design for controlling arrest and search authority and erected modem search-and-seizure doctrine in its place. Finally, a brief conclusion argues that current Fourth Amendment reasonableness doctrine has effectively allowed the justices to repudiate each of the three salient features of the Framers' design for arrest and search authority.
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