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77 Miss. L.J. 1 (2007-2008)
Correcting Search-and-Seizure History: Now-Forgotten Common-Law Warrantless Arrest Standards and the Original Understanding of Due Process of Law

handle is hein.journals/mislj77 and id is 23 raw text is: CORRECTING SEARCH-AND-SEIZURE HISTORY: NOW-FORGOTTEN COMMON-LAW WARRANTLESS ARREST STANDARDS AND THE ORIGINAL UNDERSTANDING OF DUE PROCESS OF LAW' Thomas Y. Davies* Real history is not achieved by the subordination of the past to the present, but rather by our making the past our present and attempting to see life with the eyes of another century than our own. Introduction ........................................................................................... 3 A. The Errors in Conventional Fourth Amendment History ................... 5 B. Common-Law Arrest Standards and the Law of the Land and Due Process of Law Provisions ............................................... 7 C. Recovering Authentic Constitutional History ................................... 13 D. The Organization of this Article ......................................................... 21 I. The Errors in Conventional Search-and-Seizure History ............ 25 A. Contemporary Fourth Amendment Doctrine ..................................... 25 B. The Conventional History .................................................................. 27 C. The General Warrant Controversies .................................................. 28 E.E. Overton Distinguished Professor of Law and Alumni Distinguished Service Professor of Law, University of Tennessee College of Law. The author wishes to thank Professor Thomas K. Clancy, Director of The National Center for Justice and the Rule of Law, for inviting him to participate in this symposium. He also thanks the National Judicial College for the opportunity to make an oral presentation on the same topic. Additionally, the author thanks his colleagues Professor Otis H. Stephens, for helpful comments on a draft of this article, and Professor Sibyl Marshall, for research assis- tance. Of course, the views and any errors are solely the responsibility of the author. As indicated in the notes, this article extends the author's criticisms of conven- tional search-and-seizure history in previous articles published in the Michigan Law Review and the Wake Forest Law Review. Except when noted, passages from historical sources in this article are presented with the historical spelling, capitalization, and punctuation, but in modern typeface and with modern spacing. .. HERBERT BUTTERFIELD, THE WHIG INTERPRETATION OF HISTORY 16 (1951).

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