April 2011 Vol. 109 No. 6 THE REVIEW

Framing the Fourth

Tracey Maclin & Julia Mirabella

As late as 1988, Fourth Amendment scholars thought they knew all they needed to know about the amendment's history. After all, the right to be free from unreasonable search and seizure is a "made in America" privilege. Unlike other parts of the Bill of Rights, the protection against unreasonable search and seizure "provides us with a rich historical background rooted in American, as well as English, experience; it is the one procedural safeguard in the Constitution that grew directly out of the events which immediately preceded the revolutionary struggle with England." The history of search and seizure in Britain and America was neatly described in books by Nelson Lasson and Jacob Landynski. Through these books and related articles, scholars learned about the events and individuals that helped prompt the adoption of the Fourth Amendment.

Although this history was well-known to judges and scholars, in the second half of the twentieth century Fourth Amendment history rarely mattered to the Supreme Court. To be sure, there were disagreements, both on and off the Court, regarding the relevance of history. The results in cases, however, rarely depended on how the Court interpreted the amendment's history.

Our knowledge of the Fourth Amendment's history was fundamentally transformed when William Cuddihy completed his Ph.D. dissertation in 1990. Cuddihy's study was the most comprehensive and detailed examination of the history of search and seizure law and essential reading for anyone interested in the amendment's history. At first, Cuddihy's work was little known: only a few people noticed when the highly regarded constitutional historian Leonard W. Levy stated that "Cuddihy is the best authority on the origins of the Fourth Amendment." Cuddihy finished his dissertation in 1990 and it remained unedited, unpublished, and largely unknown for several years-until Justice O'Connor made it famous by citing the dissertation thirteen times in her Vernonia School District 47J v. Acton dissent. Since Acton, a reassessment of Fourth Amendment history has been undertaken by criminal procedure scholars, and a "portion of the credit or blame may be due William Cuddihy." Cuddihy's work has generated the attention scholars dream about-not only was he cited by the Court, his work apparently convinced Justice O'Connor to change "her position on a fundamental issue in constitutional law."

 

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