30. History as Practiced by Lawyers (part 1)

In 1963, Justice Brennan wrote:

It was firmly established long before the adoption of the Bill of Rights that the fundamental liberty of the individual includes protection against unannounced police entries. "[T]he Fourth Amendment did but embody a principle of English liberty, a principle old, yet newly won, that finds another expression in the maxim 'every man's home is his castle.'"....

Moreover, in addition to carrying forward the protections already afforded by English law, the Framers also meant by the Fourth Amendment to eliminate once and for all the odious practice of searches under general warrants and writs of assistance against which English law had generally left them helpless.

So not only did the English law treat a man's home as his castle, but it permitted the odious practice of searches under general warrants and writs of assistance.  Everyone clear on that? 

Justice Scalia wrote in the same vein in his concurring opinion in Minnesota v. Carter.  Scalia presented a series of examples from English history, and then concluded:  "These principles are embodied in the Fourth Amendment of the United States Constitution".  So let's look at those principles, one by one:

In Semayne's Case, 77 Eng. Rep. 194 (K.B.1604), the King's Bench resolved that "the house of every one is to him as his castle and fortress," id. at 195, and prohibited the government from forcibly entering a home at the behest of a private party, id. at 198.

This is a not-false description of Semayne's Case, Coke's report of which can be examined here (pdf format), and a summary of which can be read here.  As can be seen, the case's reference to "castle and fortress" referred to the right to resist a burglar.  The case actually affirmed the right of the government to break into anyone's house whenever "the King is party", meaning in all criminal cases.  Can anyone seriously believe that English law in 1604 permitted a peasant to set himself up as lord of his castle, legally entitled to resist the King's officers?  Scalia continues:

Although Semayne's Case accepted broad powers of search in cases where the government was a party, Lord Coke (who witnessed Semayne's Case as attorney general) later applied its adage that a man's house was his castle to curtail the arbitrary government invasion of private homes. See Cuddihy & Hardy, supra, at 376.

What does it mean to say that Coke "applied its adage"?  You'd have to look up the law review article, and then look up the references in the article, to find out what Scalia is actually referring to.   At most he's referring to commentary by one respected lawyer/courtier.  (Coke was, however, not universally respected -- Bacon, possessor of a much greater intellect, despised him and even helped to engineer his downfall.) 

William Pitt elaborated upon the sanctity of the home in his impassioned defense of private homeowners against discretionary government searches before Parliament in 1766. See id. [the same law review article] at 386.

Sometime during the 150 years between Coke and the American Revolution, a famous politician made a speech on the topic.  And this proves what, exactly?  Doesn't the mere fact that Pitt found it necessary to address the topic suggest the principle for which he agitated was not firmly established?  Scalia's heavy reliance on a single secondary source, in this case a law review article -- an article published in a non-peer-reviewed journal edited by law students rather than historians -- is characteristic of the faux-history found in judicial opinions.

And William Blackstone, in his Commentaries wrote: "And the law of England has so particular and tender a regard to the immunity of a man's house, that it stiles it his castle, and will never suffer it to be violated with impunity.... For this reason no doors can in general be broken open to execute any civil process; though, in criminal cases, the public safety supersedes the private." William Blackstone, 4 Commentaries on the Laws of England 223 (1769).

Blackstone's comments are found in a section that begins: "Burglary, or nocturnal housebreaking ..."  He was describing the homeowner's right to defend his property against thieves in the night.  His only reference to government searches was that last bit, an aside affirming that "in criminal causes, the public safety supersedes the private." 

In short, the sources cited by Scalia contradict his argument more than they support it.  If the principles they announce are "embodied in the Fourth Amendment", then the fourth amendment doesn't mean what Scalia says it means.

For Scalia, and for lawyers in general, research consists of looking for authorities to support the conclusion one has already reached (for example, because it's the conclusion most favorable to one's client).  As soon as you find something good to stick into your argument, there's no reason to continue the investigation.  It's evident that Scalia, or rather the clerk assigned to work up the particular case, found a little nest of posh-sounding quotes in a law review article and figured that was good enough.  Whether the published opinion was accurate about English legal history was neither here nor there.

For lawyers, historical research is essentially decorative.  It's a hunt for something impressive to drape over one's argument.  It's the opposite of history as practiced by historians.