Boston University School of Law


Framing the Fourth

Tracey Maclin
(Professor of Law, Boston University School of Law)

Julia Mirabella
(J.D. Candidate, 2012, Boston University School of Law)

109 Michigan Law Review 1049 (2011)
Boston University School of Law Working Paper 11-10

Book Review

The Fourth Amendment: Origins and Original Meaning, 602-1791. By William J. Cuddihy. Oxford and New York: Oxford Press. 2009. Pp. lxviii, 940. $165.

History is again an important element of the Supreme Court’s Fourth Amendment analysis. In Wyoming v. Houghton, Justice Scalia’s opinion for the Court announced that a historical inquiry is the starting point for every Fourth Amendment case. William Cuddihy’s book on the origins and original meaning of the Fourth Amendment will undoubtedly assist the Justices (and everyone else) in understanding the history of search and seizure law.

Cuddihy’s historical analysis is unprecedented. As Justice O’Connor has described it, Cuddihy’s work is “one of the most exhaustive analyses of the original meaning of the Fourth Amendment ever undertaken.” Cuddihy reviewed thousands of sources and has endeavored to identify the types of search and seizure that the Framers’ considered constitutional. However, Cuddihy’s scholarship has also triggered a sharp debate about the Framers’ intent among Fourth Amendment scholars.

This Review provides readers with some of Cuddihy’s main arguments. Part I identifies aspects of search and seizure doctrine that Cuddihy finds had a consensus by 1791 and briefly looks at other areas that were unsettled. Part II describes some of the scholarly reaction that Cuddihy’s book has ignited. Specifically, this section outlines the points of agreement and disagreement between Cuddihy and Professors Thomas Davies and Fabio Arcila.  Finally, Part III compares Justice Scalia’s use of history in a recent case with Cuddihy’s findings, and offers a few comments on the guidance that Cuddihy’s book can provide to modern judges.

Keywords: Constitutional Law, Fourth Amendment, William J. Cuddihy, Unreasonable searches and seizures, General warrants, General searches, Nocturnal Searches, No-knock entries, Probable cause, Reasonableness standard, Fourth Amendment history

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Suggested Citation:

Tracey Maclin and Julia Mirabella, "Framing the Fourth," 109 Michigan Law Review 1049 (2011).

Contact Information

Tracey Maclin

Boston University School of Law
765 Commonwealth Avenue
Boston, MA 02215

Julia Mirabella
J.D. Candidate, 2012, Boston University School of Law