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

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NYU Press, Oct 1, 2006 - Law - 363 pages

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.


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About the Author

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Page 25 - Well then, said Mr. Ware, I will show you a little of my power. I command you to permit me to search your house for uncustomed goods ; and went on to search the house from the garret to the cellar ; and then served the constable in the same manner!
Page 31 - ... by passing them through the medium of a chosen body of citizens, whose wisdom may best discern the true interest of their country, and whose patriotism and love of justice will be least likely to sacrifice it to temporary or partial considerations.

About the author (2006)

Andrew E. Taslitz is Professor at Howard University School of Law. He is the author of five books, including Constitutional Criminal Procedure and Rape and the Culture of the Courtroom (NYU Press).

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