Quote:
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Originally Posted by D. Scarlatti
Here is what Thomas (joined by Scalia) says:
The precise relationship between the Amendment's Warrant Clause and Unreasonableness Clause is unclear. But neither Clause explicitly requires a warrant. While "it is of course textually possible to consider [a warrant requirement] implicit within the requirement of reasonableness," the text of the Fourth Amendment certainly does not mandate this result. Nor does the Amendment's history, which is clear as to the Amendment's principal target (general warrants), but not as clear with respect to when warrants were required, if ever. Indeed, because of the very different nature and scope of federal authority and ability to conduct searches and arrests at the founding, it is possible that neither the history of the Fourth Amendment nor the common law provides much guidance. Citation omitted. The quotation is from a prior Scalia opinion. |
Cite?
I've been suspicious of Thomas's analysis of any sort of Constitutional rights ever since I read his dissent in
Foucha v. Louisiana when I was researching civil commitment cases for Peter Erlinder's
article on Minnesota's statute. (warning - expensive Lexis link)