LexisNexis® Browse Law Reviews and Treatises
Skip over navigation
Sign in with your® ID to access the full text of this article.
Order the full text of this article if you do not have a® ID.
US $22.00 (+ tax)

Copyright (c) 2000 The Columbia Law Review
Columbia Law Review


November, 2000

Columbia Law Review

100 Colum. L. Rev. 1739


David A. Sklansky*



In the Commons in May 1641 a member said "Antiquity without truth (as saith Cyprian) is but ancient error." It is agreeable that he had to quote an ancient authority in order to reject the authority of antiquity. 1

Famously short on specifics, the opening clause of the Fourth Amendment guarantees "the right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures." 2 For most of the past half-century, the interpretation of this guarantee has had little to do with its origins. To identify "searches and seizures" governed by the Amendment, the Supreme Court since Katz v. United States has asked whether a particular investigative technique invades an "expectation of privacy... that society is prepared to recognize as 'reasonable'" 3 - a standard that pointedly directs attention to the present, not to the past. In determining whether a search or seizure is "unreasonable" and hence forbidden, the Court since Terry v. Ohio has balanced the need for the intrusion against the burdens it imposes - an explicitly functional test, requiring no historical inquiry. 4 Fittingly, the Court's reasoning in Katz and Terry itself focused on the realities of modern law enforcement rather than the eighteenth-century origins of the Fourth Amendment. Terry's balancing test for the lawfulness of searches and seizures has coexisted uneasily with a collection of per se rules and exceptions that at least in some circumstances require warrants based on a showing of probable ...
If you are interested in obtaining a® ID and Password, please contact us at 1-(800)-227-4908 or visit us at
Search Documents
eg., Environmental Insurance Coverage Under the Comprehensive General Liability Policy

Lexis® Web - The only search engine that delivers free web content specifically from legal sites validated by LexisNexis® attorney editors and includes tools for faster research and more relevant results.

LexisNexis Store
Research Now - Go to
Connect the Dots - Free 1 hour webcast
Share. Network. Discover. - Go to LexisNexis Communities