Searches, Seizures, and Warrants: A Reference Guide to the United States Constitution

By Robert M. Bloom | Go to book overview
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Bibliographic Essay

ANALYSIS—HISTORY

In his early work, The History and Development of the Fourth Amendment to the United States Constitution (1937), Nelson B. Lasson argues that the Framers used the reasonableness clause to give the Fourth Amendment greater scope for the prohibition of warrants. Professor Telford Taylor, in Two Studies in Constitutional Interpretation (1969), argues that, since the Framers' prime purpose was to prohibit the use of warrants, the reasonableness clause should be read separately and independently from the warrant clause. This position can also be found in the work of Akhil Amar. Amar argues that the Fourth Amendment, at the time of its adoption, did not require warrants, probable cause, or exclusion but did require reasonableness. Therefore reasonableness should be the standard for evaluating Fourth Amendment violations.

Professor Anthony Amsterdam, in Prospectives of the Fourth Amendment (58 Minn. L. Rev. 349, 1974), argues that the reasonableness clause demonstrates that the Framers intended to deal with evils beyond general warrants. He characterizes those evils as indiscriminate searches by police officials. He further argues that warrants and probable cause help to address these evils. Therefore, he argues that the reasonableness clause should be read with the warrant clause. Tracy Macklin agrees with this approach. Macklin sees the Fourth Amendment as a way to deal with an oppressive central government. He would argue that warrants are a way to address this oppression as it interposes a neutral judge between the police and the individual.

In the last decade, two significant works on the history of the Fourth Amendment were published. The Fourth Amendment: Origins and Original Meaning is an unpublished doctoral dissertation by William John Cuddihy from the Claremont Graduate School. Interestingly, Leonard Levy was Cuddihy's thesis advisor. Thomas Davies' Recovery of the Original Fourth Amendment (98 Mich. L.

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