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Unpublished Paper
I Swear: The History and Implications of the Fourth Amendment’s “Oath or affirmation” Requirement
ExpressO (2010)
  • David S Muraskin

This article seeks to reinvigorate the Fourth Amendment’s “Oath or affirmation” requirement. Fourth Amendment scholarship and jurisprudence typically dismiss the requirement as a mere procedural formality. However, reviewing pre-Revolution law and commentaries, early legal developments in the States, and the American justice manuals—treatises published by legal scholars to inform and influence judges and practitioners within the new nation—this article argues that the oath requirement is key to understanding and effectuating the Amendment’s purpose. The article demonstrates that the Amendment was partly motivated by a fear of how the Crown used its search and seizure power, as a primary investigatory tool rather than as a means to confirm established suspicions. At the same time, the Framers’ religious worldview led them to believe that oaths provided a unique assurance of accuracy, as an oath unsupported in fact would lead to unbearable social and spiritual consequences. Accordingly, the oath requirement was inserted to ensure investigators would only seek a warrant once they had conducted a thorough investigation, allowing them to satisfy the oath’s demands. Preliminary investigations could no longer solely be means to an end, to obtain warrants, but also had to be ends unto themselves, since only a careful and considered preliminary investigation could protect the warrant seeker from giving a false oath. This article argues that such a normative understanding of the Amendment can co-exist with more established interpretations of the Amendment, which conclude that it was an effort to strip power away from the Executive and place it in the hands of the Judiciary. Yet, the article also emphasizes that adopting this new view of the Amendment would require a wholesale reversal of recent Fourth Amendment jurisprudence. Since our society is no longer dominated by the Framers’ spiritual worldview, courts would have to expand existing legal structures that motivate more conscientious preliminary investigations, namely the warrant requirement, exclusionary rule, and the availability of § 1983 actions.

  • Constitutional Law,
  • Fourth Amendment,
  • Legal History,
  • Originalism,
  • Oaths,
  • Warrant Requirement,
  • Exclusionary Rule,
  • Section 1983
Publication Date
February 24, 2010
Citation Information
David S Muraskin. "I Swear: The History and Implications of the Fourth Amendment’s “Oath or affirmation” Requirement" ExpressO (2010)
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