« Sanchez v. Mayorkas: Are We All Textualists Now?
Michael Ramsey
| Main | Josh Hammer: Common Good Originalism
Michael Ramsey »

06/09/2021

Laurent Sacharoff: The Broken Fourth Amendment Oath [Updated]
Michael Ramsey

Laurent Sacharoff (University of Arkansas School of Law) has posted The Broken Fourth Amendment Oath (Stanford Law Review, Vol. 74, 2022) on SSRN.  Here is the abstract:

The Fourth Amendment requires warrants be supported by “oath or affirmation.” Under current doctrine, a police officer may swear the oath to obtain a warrant based entirely on the third-hand account of an informant. But this article shows that the Fourth Amendment, as originally understood, required that the real accuser with personal knowledge swear the oath.

That real-accuser requirement persisted for nearly two centuries. Almost all federal courts and most state courts from 1850 to 1960 held that the “oath,” by its very nature, requires a witness with personal knowledge. Only in 1960 did the Supreme Court hold in Jones v. United States that a warrant could rely upon “hearsay”—radically altering criminal investigations. But Jones rested entirely on policy preferences, ignoring the text, original understanding, and the rich contrary precedent.

This article argues we should return to the original meaning that the oath requirement bans third-hand accounts. Remarkably, this is the first comprehensive study to consider whether the “oath” requires personal knowledge.

Impressive originalist scholarship -- I'm completely persuaded, and I'd never thought about this issue before.  It's an indication of how many things there are that we take for granted but are, upon investigation, incompatible with original meaning. Also, no surprise (to me, anyway) that it was a 1960 (Warren court) case that moved away from the original meaning in a way that constricted individual rights. As Justice Scalia observed many times,  nonoriginalism doesn't necessarily lead to more rights rather than fewer rights.

UPDATE:  At Legal Theory Blog, Larry Solum says: "Highly recommended.   Download it while it's hot!"