Academic

Taslitz on History, Happiness, and the Fourth Amendment

By Lawrence Solum

Andrew E. Taslitz (Howard University - School of Law) has posted The Happy Fourth Amendment: History and the People?s Quest for Constitutional Meaning (Texas Tech Law Review, Vol. 43, 2010) on SSRN. Here is the abstract:

Much debate about the role of history in constitutional interpretation centers on the difference between originalism and non-originalism. Yet most writers agree that history must play some role. If it does, for what should we be looking when we mine history? Originalists say, "for the original intent of the Framers or the original meaning of the Founding moment" or some variation. Non-originalists are less clear. Starting from a non-originalist perspective, this article argues that one important thing to mine history for is lessons about what promotes individuals' and the People's happiness. The article considers the implications for this stance for Fourth Amendment interpretation. The article first defines a "People" by its shared commitments, finding the American People thus to be defined in part by the "pursuit of happiness" as stated in the Declaration of Independence. The piece argues that the Declaration has an appropriate role to play in interpreting the Constitution. Next, the piece reviews relevant historical meanings of "happiness" and its pursuit and finds them consistent with modern social science on these topics. Specifically, the article finds that happiness's pursuit for individuals and the American People partly requires that citizens, groups, and the People as a whole have an effective voice in government and that the state also work to promote certain types of equality (though not income equality). The article argues that these happiness-promoting functions are particularly central to history's role in interpreting the Fourth Amendment, concluding with three examples focusing on racial and viewpoint minorities and their interactions with the police. The article was written as part of a symposium panel on the role of history in understanding the Fourth Amendment's meaning.

Full post as published by Legal Theory Blog on December 16, 2010 (boomark / email).