In analyzing the Court's Fourth Amendment jurisprudence, we will often return to the concept of reasonableness. What role does reasonableness play in the Court's analysis? How does the Court determine reasonableness? Is it determined in conjunction with warrants and probable cause, or is it separate and distinct? As we examine the history of the Fourth Amendment and its application by the Supreme Court, the question of what is reasonable will often arise.
The historical record of the Fourth Amendment is somewhat murky. This record, coupled with a puzzling text, has provided the Court opportunities to interpret the amendment in a results-oriented way. Consequently, the decisions using a historical base have often been inconsistent. Justice Felix Frankfurter observed that, “The course of true law pertaining to searches and seizures…has not—to put it mildly—run smooth” (Chapman v. United States, 1961). More recently Justice Antonin Scalia observed “inconsistent jurisprudence that has been with us for years” (California v. Acevedo, 1991).
Recent scholarship on the history has shed a new light on the motivation and intent of the Framers. It is unclear as the Court begins to digest the recent scholarship whether it will have an effect on future decisions. Much depends on how one approaches constitutional analysis. Most would agree that history is indeed important and that the Framers' original intent should be considered in contemporary constitutional decisions. However, how important a role the Framers' intent should play is a matter of considerable debate. In addition, recent scholarship has questioned some of the long-held historical theories. In fact, history has been an instrument to support a particular result and will likely continue to be used in this way.
In this chapter, we will discuss the reasons why the Court has not been consistent in its interpretation of the historical record. We will analyze the competing