Warrant Clause

Arguing that at the time of the Founding, British soldiers could not forcibly enter a house without a specific warrant unless they were pursuing a felon. Pushing back on Akil Amar’s argument that the Fourth Amendment is mainly about reasonableness and does not contain an independent warrant requirement.

Arguing that the Supreme Court’s warrant jurisprudence has eroded any Fourth Amendment requirement through a series of exemptions. Contending that the Fourth Amendment’s original public meaning establishes a remedy for individuals against unreasonable search and seizure. 

Discussing the exemptions to the warrant requirement, especially exigent circumstances. Arguing that the advent of new technology provides a way to reign in the use of the exigency exception, because judges will be able to review warrant applicants more quickly by using electronic warrant submission systems. Providing a history of the Warrant Clause, including how the Framers were influenced by abusive British methods.

Summarizing many surveillance tactics used today. Arguing for the need to locate a right to quantitative privacy in the Fourth Amendment because of how monitoring and data collection services have advanced in recent years. Discussing the historical origins of the warrant clause and citing Founding-Era material.

Discussing cellphone searches in the modern era and the need for Fourth Amendment protection. Noting the Framers’ fear of general warrants and citing the debates of the convention. Pointing out the disagreement between Madison and Adams as to whether privacy protections rooted in property interests are greater than those based on possession.

Arguing that the modern notion that probable cause alone can justify a search or seizure was not present until after the Bill of Rights’ framing. Positing that this bare standard departed from the Framers’ understanding of criminal procedure standards. Analyzing the historical record to conclude that the Framers intended to preserve common-law arrest and search standards.

Pushing back against other scholars’ conclusion that the Framers were divided about the accessibility of search warrants. Looking to the enactment of the civil search statutes to derive the meaning of probable cause. 

Responding to Arcila’s article, In the Trenches, to argue that the Framers enacted the Fourth Amendment for a far more narrow reason: to require a warrant based on probable cause to search a home.

Asking what the probable cause requirement meant in the Framing era. Analyzing how early American judges viewed their role in the warrant issuance process and arguing against the value of history in interpreting the Fourth Amendment.

Arguing that the majority opinion in Atwater v. Lago Vista distorts Founding-Era arrest doctrine. Positing that misdemeanor warrantless arrests were confined to violent offenses. Concluding that notions of expansive police power are contrary to the Framers’ conception of civil procedure.

Arguing that the original meaning commonly attributed to the historical Fourth Amendment is not authentic. 

Arguing that the precise language of the Fourth Amendment was not important to the Framers because many changes were made regarding the issuance of warrants.

Briefly analyzing the common law origins of the warrant clause and Founding-Era jurisprudence as part of an article that summarizes modern criminal procedure regarding warrants.

Arguing that the Warrant Clause was intended to preclude the issuance and execution of general, unspecified warrants. Contending further that the Search and Seizure clause precluded government inspection of private papers in the course of legitimate searches, that the reasonableness requirement mandates consideration of the issue of compelled self-incrimination, and that the government cannot under the Fourth Amendment compel production of documents from someone being sued for libel or other speech-related activity.