Framing the Fourth

Authors

Tracey Maclin, Boston University School of Law
Julia Mirabella, Boston University School of Law

Abstract

Our knowledge of the Fourth Amendment's history was fundamentally transformed when William Cuddihy completed his Ph.D. dissertation in 1990. Cuddihy's study was the most comprehensive and detailed examination of the history of search and seizure law and essential reading for anyone interested in the amendment's history. At first, Cuddihy's work was little known: only a few people noticed when the highly regarded constitutional historian Leonard W. Levy stated that "Cuddihy is the best authority on the origins of the Fourth Amendment." Cuddihy finished his dissertation in 1990 and it remained unedited, unpublished, and largely unknown for several years-until Justice O'Connor made it famous by citing the dissertation thirteen times in her Vernonia School District 47J v. Acton dissent. Since Acton, a reassessment of Fourth Amendment history has been undertaken by criminal procedure scholars, and a "portion of the credit or blame may be due William Cuddihy." Cuddihy's work has generated the attention scholars dream about-not only was he cited by the Court, his work apparently convinced Justice O'Connor to change "her position on a fundamental issue in constitutional law." Cuddihy's dissertation was 1,560 pages long. The book, The Fourth Amendment: Origins and Original Meaning, 602-1791, published by Oxford University Press in 2009, is now a solid 782 pages, with an additional 127 pages of appendices. Despite its smaller size, Origins and Original Meaning remains a unique resource for anyone interested in the history of the Fourth Amendment. A central purpose of Cuddihy's research is to identify the types of searches and seizures that "the amendment originally embraced as unreasonable or reasonable" (p. lxiv). Beginning his review in 602, Cuddihy ends his research in 1791 with the ratification of the Fourth Amendment, excluding much of the congressional debate and information beyond 1791 because he believes it to be unrevealing of the amendment's original intentions (p. lxvii). Over the course of twenty-four chapters, Cuddihy documents 1,189 years of political and intellectual development of search and seizure law in Britain and the United States. Cuddihy reviewed thousands of sources and the breadth of his research is immediately apparent; he has left little out. The details often overwhelm, but the patient reader will leave with a comprehensive knowledge and understanding of search and seizure history.

Recommended Citation

Tracey Maclin & Julia Mirabella, Framing the Fourth, 109 Mich. L. Rev. 1049 (2011).
Available at: https://repository.law.umich.edu/mlr/vol109/iss6/12