Time Travel, Hovercrafts, and the Fourth Amendment: If James Madison Could Have Seen the Future
Recent historical work has raised the intriguing possibility that the Framers meant to accomplish only one goal in the Fourth Amendment: to forbid general warrants. On this historical account, the first clause stating a right of the people to be "free from unreasonable searches and seizures" is merely declaratory of the principle that led the Framers to ban general warrants. Rephrased to be true to this history, the Fourth Amendment would say: "The right of the people to be secure in their persons, houses, papers, and effects against general warrants shall not be violated, and no general warrants shall issue." As no general warrants have issued in the last two centuries, limiting the current Fourth Amendment to its historical roots would deprive it of any effect. When constructing Fourth Amendment doctrine, the Supreme Court has thus been faced with language that is hopelessly vague and with history that is of no help. The result is a Fourth Amendment without coherence. But what if the Framers could have seen modern policing? Given the values that underlie the Fourth Amendment, how would the Framers have written it with the modern context in mind? This article transposes the Framers to the turn of the twenty-first century and then asks them to return to the eighteenth century and rewrite the Fourth Amendment. The result is an Amendment that would produce a doctrine that is both clearer and more elegant than the Court's haphazard Fourth Amendment.
Criminal Law | Criminal Procedure | Legal History
Date of this Version
George C. Thomas, "Time Travel, Hovercrafts, and the Fourth Amendment: If James Madison Could Have Seen the Future" (March 15, 2004). bepress Legal Series. bepress Legal Series.Working Paper 190.