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32 posts from February 2011

02/26/2011

Originalism on the Web
Mike Rappaport

Brian Anderson on The Commerce Clause as a Mechanism to Expand the Federal Government.

Originalism on the Web
Mike Rappaport

Linda Kerber on Can the 14th Amendment defend itself?

02/25/2011

Originalism on the Web
Mike Rappaport

Christopher Jon Sprigman on First Do No Harm: Why judges should butt out of the fight over health care reform.

02/24/2011

Originalism on the Web
Mike Rappaport

Charles Kanjama on Law interpretation should not be mystery spiritualism.

02/23/2011

The Supreme Court Giveth and the Supreme Court Taketh Away: The Century of Fourth Amendment 'Search and Seizure' Doctrine
Mike Rappaport

Thomas Y. Davies (University of Tennessee College of Law) has posted The Supreme Court Giveth and the Supreme Court Taketh Away: The Century of Fourth Amendment 'Search and Seizure' Doctrine (Journal of Criminal Law & Criminology, Vol. 100, No. 3, pp. 933-1041, 2010) on SSRN. Here is the abstract:

This article presents a legal-realist account of the century-long life span of modern Fourth Amendment doctrine. Part II briefly reviews the story of constitutional arrest and search doctrine from the framing of the Bill of Rights to the beginning of the twentieth century. It notes that common-law standards for arrests were originally understood to be salient features of the "due process of law" required by the Fifth Amendment, but that nineteenth-century judges effectively jettisoned that understanding. Although the Fourth Amendment had originally been understood simply as a ban against the issuance of too-loose search warrants, especially for revenue searches of houses, the loss of the original understanding of due process of law opened the way for the Supreme Court to later reinvent criminal procedure under the Fourth Amendment as "search and seizure" doctrine.

The article then analyzes the century of modern Fourth Amendment doctrine in terms of five distinct periods. In the initial period, discussed in Part III, the justices pursued a goal similar to that evident earlier in the remarkably activist 1886 ruling in Boyd by reinvigorating the Fourth Amendment as a protection of papers, especially business records. In the seminal decision in Weeks, the justices innovated by reading the common-law warrant requirement for house searches into the Fourth Amendment itself, by applying that constitutional standard to the conduct of officers as well as to legislation, and by announcing the exclusionary rule as the consequence of an unconstitutional search and seizure. Later cases then extended that analysis to seizures of business records from offices.

During the period of Prohibition, discussed in Part IV, the justices relaxed the Weeks warrant standard by inventing the concept of "Fourth Amendment reasonableness" in 1925 in Carroll to allow warrantless searches of autos for liquor in circumstances where searches incident to lawful arrests could not be justified. (Academics then prochronistically imposed that novel formulation on the past to invent the conventional but fictional account of Fourth Amendment history.) During the next period, discussed in Part V, the Roosevelt and Truman appointees then split as to whether the Weeks warrant conception or the Carroll reasonableness formulation should predominate.

Part V discusses the period of the Warren Court, which definitely revolutionized search and seizure insofar as it incorporated Fourth Amendment law into the Fourteenth Amendment in Mapp and thus made it applicable to state criminal justice proceedings. However, the content of the justices’ rulings during this period was actually mixed. Available statistics indicate that government and defendant victories were essentially even during all but the decisions announced in 1968 and 1969 when a strong liberal majority emerged after Justice Marshall replaced Justice Clark. However, the extension of constitutional protections to state criminal defendants fundamentally altered the politics of criminal justice.

Part VI then discusses the dismantling of search and seizure protections that began with Richard Nixon’s appointment of four justices known to be opposed to the Warren Court’s rulings. Statistics demonstrate that there was a marked change as government petitions soon became the predominate source of the search and arrest cases accepted for review. Additionally, except for a brief hiatus in the late 1970s that ended when Justice O’Connor replaced Justice Stewart, the conservative majority ruled predominately in favor of government parties during this final four-decade period as they undertook a multi-prong campaign to restrict virtually all aspects of search and seizure protections. After nearly abolishing the exclusionary rule in 1976, the Burger Court majority substantially curtailed the rule’s operation and also raised the threshold for standing. They also eased the standards for consent, restricted the scope of Fourth Amendment protections, eviscerated the probable cause standard in 1983 in Gates, and effectively ended enforcement of warrant standards in 1984 in Leon. More recently, the Rehnquist and Roberts Courts also effectively created discretionary police arrest and search authority in Atwater and Moore, and further curtailed exclusion while rejecting other potential modes for enforcing search protections.

The article concludes that, notwithstanding the seeming mass of search and arrest precedents, the supposed right against unreasonable searches and seizures has now been reduced to little more than a rhetorical apparition. Indeed, the destruction is so complete that the number of government certiorari petitions regarding search and seizure cases has decreased to a trickle. So little is left, it seems doubtful the right can be revived.

Originalism on the Web
Mike Rappaport

David Schultz on What "original intent" would look like.

02/22/2011

Originalism on the Web
Mike Rappaport

Laurence H. Tribe On Health Care, Justice Will Prevail.

Alex Tabarrok responds to Laurence Tribe's On Health Care, Justice Will Prevail in The Living Constitution.

02/21/2011

Originalism on the Web
Mike Rappaport

John Holbo on Originalism and Precedent Revisited: Banzai as Bonsai.

Unfortunately, Holbo assumes without sufficient warrant that originalism and precedent are inconsistent.  But if the original meaning of the Constitution allows for precedent, as John McGinnis and I argue here, then there is no incompatability. 

02/20/2011

Originalism on the Web
Mike Rappaport

Conor Friedersdorf on Evolving Into Originalism.

Federalism, Fig Leaves, and the Games Lawyers Play
Mike Rappaport

Robert C. Power (Widener University- School of Law) has posted Federalism, Fig Leaves, and the Games Lawyers Play (Widener Law Journal, Vol. 12, 2003) on SSRN. Here is the abstract:

This article, part of a symposium on the New Federalism movement, asks two questions about the movement and its opponents. The first is whether the disagreement is about principle – finding the appropriate balance between national and state powers, or just about politics – using the term "federalism," which suggests abstract principle largely to hide partisan support of states' rights. It argues that it is politics, and that supporters of states' rights prefer New Federalism to States' Rights because of the latter phrase's association with support for racial segregation. The second question concerns consistency. The article argues that New Federalists depart from text and history in supporting state impunity from federal judicial review, focusing on the sovereign immunity doctrine. This appears to be at odds with their insistence that text and history should govern interpretations of national powers and justify rejection of precedents broadly construing the constitution. The article ends by suggesting renewed emphasis on cooperative federalism – joint federal/state efforts to achieve national and regional objectives.