Reconstructing the Fourth Amendment: A History of Search and Seizure, 1789-1868

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NYU Press, Oct 1, 2006 - Law - 363 pages

The modern law of search and seizure permits warrantless searches that ruin the citizenry's trust in law enforcement, harms minorities, and embraces an individualistic notion of the rights that it protects, ignoring essential roles that properly-conceived protections of privacy, mobility, and property play in uniting Americans. Many believe the Fourth Amendment is a poor bulwark against state tyrannies, particularly during the War on Terror.
Historical amnesia has obscured the Fourth Amendment's positive aspects, and Andrew E. Taslitz rescues its forgotten history in Reconstructing the Fourth Amendment, which includes two novel arguments. First, that the original Fourth Amendment of 1791—born in political struggle between the English and the colonists—served important political functions, particularly in regulating expressive political violence. Second, that the Amendment’s meaning changed when the Fourteenth Amendment was created to give teeth to outlawing slavery, and its focus shifted from primary emphasis on individualistic privacy notions as central to a white democratic polis to enhanced protections for group privacy, individual mobility, and property in a multi-racial republic.
With an understanding of the historical roots of the Fourth Amendment, suggests Taslitz, we can upend negative assumptions of modern search and seizure law, and create new institutional approaches that give political voice to citizens and safeguard against unnecessary humiliation and dehumanization at the hands of the police.

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Contents

Mobilitys Meaning for the South
131
Mobilitys Meaning for the North
157
Notes
279
Index
343
About the Author
363
Copyright

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Page 146 - ... so far inferior that they had no rights which the white man was bound to respect; and that the Negro may justly and lawfully be reduced to slavery for his benefit.
Page 66 - But the great security against a gradual concentration of the several powers in the same department, consists in giving to those who administer each department the necessary constitutional means and personal motives to resist encroachments of the others.
Page 147 - For if they were so received, and entitled to the privileges and immunities of citizens, it would exempt them from the operation of the special laws and from the police regulations which they considered to be necessary for their own safety. It would give to persons of the negro race, who were...
Page 238 - Peace does not appear so distant as it did. I hope it will come soon, and come to stay ; and so come as to be worth the keeping in all future time. It will then have been proved that among free men there can be no successful appeal from the ballot to the bullet, and that they who take such appeal are sure to lose their case and pay the cost.
Page 25 - Well then, said Mr. Ware, I will show you a little of my power. I command you to permit me to search your house for uncustomed goods ; and went on to search the house from the garret to the cellar ; and then served the constable in the same manner!
Page 167 - The right of the people to be secure in their persons . . . against unreasonable searches and seizures...
Page 185 - As a nation, we began, by declaring that 'all men are created equal.' We now practically read it 'all men are created equal, except negroes.' When the Know-Nothings get control, it will read 'all men are created equal, except negroes, and foreigners, and catholics.
Page 31 - ... by passing them through the medium of a chosen body of citizens, whose wisdom may best discern the true interest of their country, and whose patriotism and love of justice will be least likely to sacrifice it to temporary or partial considerations.

About the author (2006)

Andrew E. Taslitz is Professor at Howard University School of Law. He is the author of five books, including Constitutional Criminal Procedure and Rape and the Culture of the Courtroom (NYU Press).

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