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

Date

2010

Journal Title

Journal ISSN

Volume Title

Publisher

Texas Tech Law Review

Abstract

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.

Description

Keywords

Conventional Fourth Amendment history, Supreme Court's rulings on search-and-seizure, Salient claims of the conventional account, Shortcomings of the conventional commentaries, Authentic history of constitutional arrest and search standards, Criminal arrests and revenue searches, Criminal arrest standards as "due process of law", Salience of arrest standards at common law, Unsuccessful attempt to preserve common-law arrest standards as "due process of law", Original Fourth Amendment and the fear of revenue searches of houses, Judicial destruction of the framers' design, Loss of the original understanding of "due process of law"

Citation

Thomas Y. Davies, 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, 43 Tex. Tech L. Rev. 51 (2010-2011)