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The Common Law Endures In The Fourth Amendment, George C. Thomas Iii
The Common Law Endures In The Fourth Amendment, George C. Thomas Iii
William & Mary Bill of Rights Journal
The text of the Fourth Amendment provides no guidance about what makes a search unreasonable or when warrants are required to make a search reasonable. The Supreme Court has had to craft a doctrine based on intuition, policy goals, and halfhearted stabs at history. This Article argues that the Court’s Fourth Amendment doctrine is stable when it roughly tracks the eighteenth-century common law protection of property, privacy, and liberty. When the Court has sought to provide more protection than the common law provided, the result has been an erratic doctrine that has gradually receded almost back to the common law …
A Tale Of Two Clauses: Search And Seizure, Establishment Of Religion, And Constitutional Reason, Perry Dane
A Tale Of Two Clauses: Search And Seizure, Establishment Of Religion, And Constitutional Reason, Perry Dane
William & Mary Bill of Rights Journal
This Article dissects two developments in widely separate areas of American constitutional law—the “reasonable expectation of privacy” test for the Fourth Amendment’s Search and Seizure Clause and the “endorsement” test for the First Amendment’s Establishment Clause. These two stories might seem worlds apart, and they have not previously been systematically examined together. Nevertheless, the Article argues that they have in common at least three important symptoms of our legal culture’s deep malaise. These three phenomena occur in other contexts, too, but they appear with special clarity and a stark cumulative force in the two stories on which this Article focuses. …