Reconstructing the Fourth Amendment: A History of Search and Seizure, 1789-1868

Reconstructing the Fourth Amendment: A History of Search and Seizure, 1789-1868

Reconstructing the Fourth Amendment: A History of Search and Seizure, 1789-1868

Reconstructing the Fourth Amendment: A History of Search and Seizure, 1789-1868


The modern law of search and seizure permits warrantless searches that ruin the citizenry's trust in law enforcement, harms minorities, and embraces an individualistic notion of the rights that it protects, ignoring essential roles that properly-conceived protections of privacy, mobility, and property play in uniting Americans. Many believe the Fourth Amendment is a poor bulwark against state tyrannies, particularly during the War on Terror.

Historical amnesia has obscured the Fourth Amendment's positive aspects, and Andrew E. Taslitz rescues its forgotten history in Reconstructing the Fourth Amendment , which includes two novel arguments. First, that the original Fourth Amendment of 1791- born in political struggle between the English and the colonists- served important political functions, particularly in regulating expressive political violence. Second, that the Amendment's meaning changed when the Fourteenth Amendment was created to give teeth to outlawing slavery, and its focus shifted from primary emphasis on individualistic privacy notions as central to a white democratic polis to enhanced protections for group privacy, individual mobility, and property in a multi-racial republic.

With an understanding of the historical roots of the Fourth Amendment, suggests Taslitz, we can upend negative assumptions of modern search and seizure law, and create new institutional approaches that give political voice to citizens and safeguard against unnecessary humiliation and dehumanization at the hands of the police.


As a teenager and even as a preteen, I remember being appalled by the large number of black faces I saw on TV whenever there was a crime story on the news or in pulp fiction. It seemed odd to me, a white kid growing up in the Bronx, that there were so few white faces, just as a matter of sheer probabilities. I grew up in a working-class neighborhood in which many kids, white or black, were at least involved in minor crime, from drug use to graffiti to vandalism and even minor arson (torching outdoor garbage cans to see the fire trucks come). Yet I knew not a single white kid arrested for these behaviors. I am sure there must have been some, but not within my circles.

These thoughts might seem odd for a twelve- or thirteen-year-old boy, but I was a bookish kid who read widely and was always sensitive to unfairness. I was close to my dad, and he labored ten to twelve hours each day, six days a week, to feed his family, still barely making enough money to do so. It seemed to me that something was wrong with a world in which a good man who labored so hard could receive so little in return. His plight made me attentive to unfair inequalities in the world. When I found them, I tried to understand them, usually failing in that endeavor.

The need to understand never left me, and, as I aged, my quest made the world seem more, not less, complex and confusing. I promised neither to suffer my dad's fate nor to forget it. My way out was education. I studied hard, seeing the legal profession as a means for making a decent living while doing some good. I somehow never bought into the jokes about greedy lawyers or even my own granddad's pointed insistence on pronouncing the word “lawyer” like “liar.” My journey paid off when I started working in my twenties at the Philadelphia, Pennsylvania, district attorney's office.

That work did not, however, bring me the clarity that I sought. On my very first day in court, I was struck, once again, with the sea of black faces. The face of almost every defendant hauled into court was black, but this was equally true for most of the victims. Offenders and accusers alike shared one primary characteristic: poverty. For all whites' fear of crime, and too many did suffer its sting, it was the African American community in that city that bore the brunt of both the problem of criminality and the criminal “justice” solution.

Later in life, I became a law professor, teaching and writing about criminal justice. In that capacity, I became involved in the innocence movement as it became clear that too many of those in our jails and prisons did not belong there. Some significant portion of those injustices stemmed from police mistakes, even perfectly well-meaning officers focusing too early on one theory of . . .

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