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Justice Scalia's Fourth Amendment: Text, Context, Clarity, and Occasional Faint-Hearted Originalism
Virginia Journal of Criminal Law (2015)
  • Timothy C MacDonnell
Since joining the United States Supreme Court in 1986,
Justice Scalia has been a prominent voice on the Fourth
Amendment, having written twenty majority opinions,
twelve concurrences, and six dissents on the topic. Under
his pen, the Court has altered its test for determining when
the Fourth Amendment should apply; provided a vision to
address technology's encroachment on privacy; and
articulated the standard for determining whether
government officials are entitled to qualified immunity in
civil suits involving alleged Fourth Amendment violations.
In most of Justice Scalia's opinions, he has championed an
originalist/textualist theory of constitutional interpretation.
Based on that theory, he has advocated that the text and
context of the Fourth Amendment should govern how the
Court interprets most questions of search and seizure law.
His Fourth Amendment opinions have also included an
emphasis on clear, bright-line rules that can be applied
broadly to Fourth Amendment questions. However, there
are Fourth Amendment opinions in which Justice Scalia
has strayed from his originalist/textualist commitments,
particularly in the areas of the special needs doctrine and
qualified immunity. This article asserts that Justice Scalia's
non-originalist approach in these spheres threatens the cohesiveness of his Fourth Amendment jurisprudence, and
could, if not corrected, unbalance the interpretation of the
Fourth Amendment in favor of law enforcement interests.
  • Criminal Law,
  • Fourth amendment,
  • justice scalia,
  • scotus,
  • supreme court,
  • originalism,
  • jurisprudence
Publication Date
Spring 2015
Citation Information
Timothy C. MacDonnell, Justice Scalia's Fourth Amendment: Text, Context, Clarity, and Occasional Faint-Hearted Originalism, 3 Va. J. Crim. L. 175 (2015).