Emory Law Journal


In the past forty years, the U.S. Supreme Court has increasingly advanced the notion that the Fourth Amendment encompasses the common-law restrictions on searches and seizures that existed in 1791 when the Amendment was adopted. Yet, in case after case, the Court has encountered indeterminacy in the common law circa 1791. At times, the Court confronts this indeterminacy by concluding that, in the absence of a clear common-law rule, the Fourth Amendment does not govern the issue. At other times, in the face of indeterminacy, the Court falls back upon general Fourth Amendment principles. And on occasion the Court pretends that the indeterminacy does not exist. The reason for the absence of clear common-law search and seizure rules in 1791 is that the common law differed in important respects among the new American States. More importantly, the Anti-Federalists, those who demanded that the Bill of Rights be added to the Constitution as the price of ratification, recognized that the common law differed by State. This Article introduces a view of the Fourth Amendment¿the contingent Fourth Amendment¿that courts and commentators have overlooked. It asserts that we ought to conceive of our rights against unreasonable searches and seizures by federal officials as being largely contingent on state law.