RECONSTRUCTING THE FOURTH AMENDMENT

Vol. 17 No.3 (March, 2007) pp.282-285

RECONSTRUCTING THE FOURTH AMENDMENT: A HISTORY OF SEARCH AND SEIZURE, 1789-1868, by Andrew E. Taslitz. New York: New York University Press, 2006. 368pp. $50.00. Cloth. ISBN: 0814782639.

Reviewed by Priscilla H.M. Zotti, Department of Political Science, United States Naval Academy. Email: zotti [at] usna.edu.

In his book, RECONSTRUCTING THE FOURTH AMENDMENT, Andrew Taslitz provides the reader with an aspect of search and seizure not often considered; the role of the amendment with regard to the African American experience and the impact this had on passage of the Fourteenth Amendment. Taslitz focuses on search and seizure practices during slavery and Reconstruction and the contributions of this experience in shaping the Fourteenth Amendment as well as the Fourth Amendment.

The vivid portrait of the struggle of the colonists against the British Crown and the abuses utilizing aggressive and oppressive search practices is well documented. Students of the Fourth, schooled on the works of Telford Taylor and Nelson B. Lasson are familiar with this rich history. In THE HISTORY AND DEVELOPMENT OF THE FOURTH AMENDMENT OF THE UNITED STATES CONSTITUTION, Lasson documents the struggle colonists experienced as repeated victims of aggressive search and seizure. He recounts the seizure of John Hancock’s sloop Liberty by authority of a writ of assistance and the search aspect of the Stamp Act that contributed to the Boston tea party. Taylor’s work, TWO STUDIES IN CONSTITUTIONAL INTERPRETATION, also notes the chronic problem of writs of assistance and general warrants both within Great Britain and in colonial America. However, the use of search and seizure in protecting the status quo of slavery is less known. Taslitz’s contribution is to make the history of the Fourth Amendment even richer by meticulously accounting the use of search and seizure practices to support slavery and racial discrimination. (The author includes sixty three pages of documentation.) Recounting the abuse and indignation of general warrant searches, many colonists equated their treatment at the hand of the British to that of slavery. The metaphorical use of slavery to describe the search by low level customs officers connected illegal searches and seizures to political subjugation by the British. Professor Taslitz places the Fourth Amendment in the larger context of rights of the people, all people. Not merely a technicality, the Fourth Amendment protects core interests essential to human flourishing, those of privacy, property, and freedom of movement.

The book convincingly makes the case that Fourth Amendment violations are much more than cases of criminal misconduct and police authority. Our commonplace imagery of the Fourth as a technicality sells the Amendment short. The history of the Fourth makes clear that the right of the people to be protected against unreasonable searches [*283] and seizures entails much more. Professor Taslitz’s premise is that “understanding the meaning of today’s Fourth Amendment requires study of the evolving meanings of search and seizure during the fight to end slavery, for it was that fight that motivated and defined the drafting and ratifying of the Fourteenth Amendment” (p.12).

The book’s premise is carried out in three broad themes. Search and seizure invaded privacy, free expression, and was used particularly to curb political dissent. Secondly, search and seizure involved property rights, particularly of slave owners, and finally, freedom of movement is curtailed by seizure provisions.

When revolutionary leader, James Otis, protested the British use of writs of assistance as the precursor to searches, John Adams said, “then and there was the Child Independence born” (p.17). State sponsored suppression triggered a chain reaction of upping the ante of protest, dissent and violence. Political dissent was then quashed with the tools of abusive search and seizure. Whether the heavy handed actions of the state took place in Great Britain or in the colonies, public outrage at surreptitious searches and seizures as a tactic of control was intense. Professor Taslitz notes the high profile prosecution of John Wilkes and later that of John Entick as illustrative of the connection between search and seizure and the principle of free speech and public dissent.

Another consequence of the Fourth Amendment was to facilitate continued bondage of slaves by using search and seizure laws as a tool of the majority. The backdrop of antebellum slavery and then Reconstruction provide a fresh approach to understanding the motivations of constitutional change. The author carefully makes the case that slavery was bolstered by the provisions of search and seizure and ultimately forced change through the vehicle of the Fourteenth Amendment. For example, the infamous Black Codes made crimes “race specific” to slaves, such as leaving a plantation. Search and seizure played a role in racial domination that surrounded the Fourteenth Amendment. The book sets forth the abuses of searches and seizures as an enforcement tool of the runaway slave provision that the framers included in the Constitution.

The author notes the high court struggled in the fugitive slave clause cases with inconsistencies of the practices of rendition and the Fourth Amendment. These were essentially kidnapping cases, where individuals received monetary reward for capturing runaway slaves. The court did not align the Fourth’s search and seizure protections with the facts. The argument is this: “in a free state every man is prima facie a free man who is at large. If so, he comes under that class called ‘people’; and the right of ‘the people’ to be secure in their persons against unreasonable seizures is guaranteed in the Constitution. Ay! But he is a slave, say the opponents of this doctrine. But that is not admitted. The very question at issue is slave or free. Now so long as he is not proved a slave, he is presumed free, and, therefore, if you seize him, it is a violation of this constitutional privilege” (p.164, quoting [*284] from PRIGG v. PENNSYLVANIA, Summary of Oral Arguments, reported by Kurland and Casper 1978).

Privacy claims for slaves concerned their separate lives from their masters, both in terms of location and sociability. The insights that Professor Taslitz provides into the daily lives of slaves is fascinating and revealing culturally. Medicine, art, music, religion, trading, and bartering, are all a part of the underground and separate private lives of slaves. Part of the richness of the counterculture gave fuel to abolitionists to use these examples of enlightened life as evidence that slavery was anachronistic. At times the author strays from the search and seizure aspect of slavery and the abuse of African Americans. However, the richness of history and detail are worth the occasional diversion.

Congress passed the Civil Rights bill on April 9, 1866 extending fundamental rights, including the Fourth Amendment. The author notes that there is some discussion of incorporation in the Civil Rights Act of 1866, particularly the Fourth, a few years after the Fourteenth was ratified. Although it is noted that there was rejection during debate of the idea that the privileges and immunities clause applied to the first eight amendments, one could understand that it included the 4th, 5th and 6th. These amendments captured the belief of protection against abuse by the state. Still, the dreaded Black Codes often contained search and seizure provisions. Unjustified arrests, beatings, authorized whippings and lynchings, invasions into homes and the seizure of individual firearms continued.

What are the implications of an antebellum Reconstructionist history of the Fourth? – certainly a richer context. Teased out of this are some concepts worth noting. The author contributes to our understanding of the idea of individualized justice in the face of collective persecution. The book emphatically and convincingly makes the case that, duing this period, race, membership of a particular class if you will, was enough to convict and punish. These guarantees that we take for granted as individual were collectively dismissed in the beginning of our country. Probable cause is particularized to the person or place or thing to be seized, yet when individuals were treated like property our concept of justice did not give any individual relief. All told, the author makes ten observations that indicate that the history he sets forth has broader connections to our general sense of law and Fourth Amendment law in particular.

Finally, Taslitz ends with the currency of the Fourth Amendment. In the wake of terrorism, what role does the Fourth Amendment play in curtailing dissent, political activity that would be deemed radical, the deployment of technology in the name of safety and security? So his meticulous history turns to a fast-paced discussion of how in a post 9/11 society we cope with race, terrorism and technology. The chapter is brief, giving only one or two examples of the current application of the rich history that preceded. As the author explains, this is not a conclusion but the fruits of an [*285] ongoing conversation. Hopefully the results of this dialogue will be forthcoming. In many ways this approach left me thinking about the book long after I completed it.

I found RECONSTRUCTING THE FOURTH AMENDMENT insightful in its approach to the Fourth Amendment, not only in terms of the law itself, but what is searched and seized, who particularly is subject to search and seizure, and what abuses led to broadening, thus capturing the full rich detail of the Fourth Amendment. Abuse by the state in the 18th century, and by the state via the police in the 19th century, comes with a discriminatory aspect, utilizing the provisions of the Fourth to keep the powerless more powerless and to treat minorities as minorities.

The Fourth Amendment is fascinating primarily because of its commonplace role in American life. It is the daily ability of the state to potentially abuse those who have no power via finance, voice or position. Race and slavery are part of the American experience. Professor Taslitz shows us in thorough fashion that we would be wise to learn from the past as we address the problems facing our society. I recommend RECONSTRUCTING THE FOURTH AMENDMENT: A HISTORY OF SEARCH AND SEIZURE, 1789-1868 to any student of constitutional and legal history as a thoughtful and well-written source of the rich context of this constitutional right and its implications.

REFERENCES:

Kurland, Philip B., and Gerhard Casper (eds). 1978. LANDMARK BRIEFS AND ARGUMENTS OF THE SUPREME COURT OF THE UNITED STATES: CONSTITUTIONAL LAW (Vol. 2). Frederick, Md. :University Publications of America.

Nelson B. Lasson. 1937. THE HISTORY AND DEVELOPMENT OF THE FOURTH AMENDMENT OF THE UNITED STATES CONSTITUTION. Baltimore: Johns Hopkins University Press.

Telford Taylor. 1969. TWO STUDIES IN CONSTITUTIONAL INTERPRETATION. Columbus: Ohio State University Press.

CASE REFERENCE:

PRIGG v. PENNSYLVANIA, 41 U.S. 539 (1842).

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