The Framer’s Search Power: The Misunderstood Statutory History of Suspicion & Probable Cause
Abstract
Originalist analyses of the Framers’ views about governmental search power have devoted insufficient attention to the civil search statutes they promulgated for regulatory purposes. What attention has been paid concludes that the Framers were divided about how accessible search remedies should be. This Article explains why this conventional account is mostly wrong and explores the lessons to be learned from the statutory choices the Framers made with regard to search and seizure law. In enacting civil search statutes, the Framers chose to depart from common law standards and instead largely followed the patterns of preceding British civil search statutes. The overwhelming tendency was to link official immunity with probable cause and displace the jury by reserving the issue for federal judges. These choices are surprising because such provisions had been highly contested in the colonies when the British had implemented them. The Framers also promulgated a plethora of other procedural devices that limited access to search remedies. For these reasons, and because probable cause was a poorly understood concept at the time, the Framers’ choices show that, once in power, the Framers became more interested in protecting governmental search power than in limiting it.