A Response to Professor Steinberg's Fourth Amendment Chutzpah

Abstract

Professor Steinberg believes that the Fourth Amendment was intended only to provide some protection against physical searches of homes through imposition of a specific warrant requirement because the Framers' only object in promulgating the Fourth Amendment was to ban physical searches of homes under general warrants or no warrants at all. This response essay takes issue with his thesis by (1) discussing its implications, (2) reviewing some concerns with his methodology in reviewing the historical record, and (3) examining the theoretical implication underlying his thesis that, except as to homes, we have a majoritarian Fourth Amendment, and questioning whether he adequately defends this position. The essay concludes with some thoughts about Professor Steinberg's presumption that originalism should control our Fourth Amendment jurisprudence.

Keywords: Fourth Amendment, 4th Amendment, search, seizure, search and seizure, search & seizure, warrant, writ, common law, originalism, originalist, majoritarianism