4th Amendment question

[Stephen Maturin]

Originally Posted by D. Scarlatti

What I was (and am) looking for is simply a literal, "textualist" reading of the Amendment.

Scalia and Thomas have a point. That sentence contains two independent clauses. The first sets forth a general standard of reasonableness that applies to all searches and seizures. The second sets forth the standards for issuing warrants, but says nothing whatsoever about when or under what circumstances a warrant is required. I haven't read a Fourth Amendment case since the early 90s, but I'll guess that Scalia and Thomas say you must look to the common law at the time the 4th was ratified to determine when a warrant is actually required.

On the other hand, the rest of the world has a point too. It is one sentence, not two. The clauses address the same subject, namely searches and seizures. Read as in integrated whole, the sentence thus appears to require a warrant in all circumstances (leaving aside judicially created exceptions such as hot pursuit, consent, plain view, etc.). It also appears that a warrant based on probable cause is necessary to support a finding of reasonableness, but not necessarily sufficient, i.e., a search conducted pursuant to a properly issued warrant can still be unreasonable given the right set of facts.

So, then, the "textualist" approach supports two completely different readings of the Fourth Amendment. Conclusion: "textualism" can be used as a tool of "judicial activism" and is therefore of the devil.