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09/07/2017

The Original Meaning of the Fourth Amendment: What Does "the Place to Be Searched" Mean?
Mike Rappaport

Lately, I have been exploring the original meaning of the Fourth Amendment, which I am finding to be a fascinating subject.  The text of the Fourth Amendment is filled with significant interpretive questions.

Let me start with an issue that grows out of the language of the second portion of the Amendment:

The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no warrants shall issue, but upon probable cause, supported by oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.

A careful reading of the italicized language raises a question: why does the clause speak of “the place to be searched” in the singular, but “the persons or things to be seized” in the plural?  After all, it would have been more consistent for the Amendment to have read “the places to be searched, and the persons or things to be seized.”  Was this intentional, so that search warrants can only authorize the search of a single place?

I have certainly seen many people make fun of these types of textual arguments.  The idea that you would confer significance on a slight textual change seems ridiculous to them.  “There are important policy questions here that should not be resolved by small textual differences.”  But treating such small textual differences as consequential can make sense under both a textualist original public meaning approach and under an approach that treats the Constitution as written in the language of the law, which often follows a strong textualism.

Fourth Amendment scholar William Cuddihy believes that the historical sources strongly support the view that this textual difference was intended. In particular, he relies on  legal treatises at the time, state statutes, and federal statutes.

Cuddihy notes that the federal Collection Act “imposed the highest possible standard of particularity by restricting all federal search warrants to single structures, even if those structures were not houses.  Every warrant had to specify a single location: a house, store ‘or other place.’"

He also notes that “most states had standardized the specific warrant by 1789, and nearly all of those states, in turn, limited search warrants to single, not plural, locations.”  He writes:

Under the Massachusetts imposts of 1782-86, the informant designated, typically, the “particular dwelling house or store” that he suspected, and the warrant was confined to “such house or store.”  The corresponding Rhode Island act of 1786 provided a search warrant “particularly discriminating the Dwelling House, Store, Ware-house, or other Building.”  Also in 1786, Delaware enacted a warrant specifying a single “House, Out-house, Barn or other Place.”  A similar requirement existed in Pennsylvania. New Hampshire in 1777 and Virginia in 1787 established official forms for certain warrants that had only a single blank for the name of the lone person whose house was to be searched.

Finally, Cuddihy claims that “the legal treatises that Americans wrote and read during the Fourth Amendment’s formation impliedly repudiated multiple-specific warrants by providing examples of specific warrants that always confined the search to a single location.  By implication, any warrant that allowed several houses to be searched was unreasonable even if it specified those houses.”

This evidence, overall, seems reasonably strong, although one cannot know for sure until one actually looks at the primary sources.  One limitation, though, is that much of the evidence seems to involve a textual inference that reference to “a house” means a single house.  Not a problematic inference, but one would want some additional evidence.

There is some evidence that this issue was in the minds of people and therefore the text was not merely a coincidence, but actually spoke to a contended issue.  For example Cuddihy notes that “Benjamin Gale, who represented Connecticut in the Congress of 1789 [which proposed the Fourth Amendment], had earlier condemned multiple-specific warrants as infringements of ‘natural, civil, and constitutional rights.’”