The modern law of search and seizure permits warrantless searches that ruin the citizenry's trust in law enforcement, harms minorities, and embraces an individualistic notion of the rights that it protects, ignoring essential roles that properly-conceived protections of privacy, mobility, and property play in uniting Americans. Many believe the Fourth Amendment is a poor bulwark against state tyrannies, particularly during the War on Terror.

Historical amnesia has obscured the Fourth Amendment's positive aspects, and Andrew E. Taslitz rescues its forgotten history in Reconstructing the Fourth Amendment, which includes two novel arguments. First, that the original Fourth Amendment of 1791--born in political struggle between the English and the colonists--served important political functions, particularly in regulating expressive political violence. Second, that the Amendment's meaning changed when the Fourteenth Amendment was created to give teeth to outlawing slavery, and its focus shifted from primary emphasis on individualistic privacy notions as central to a white democratic polis to enhanced protections for group privacy, individual mobility, and property in a multi-racial republic.

With an understanding of the historical roots of the Fourth Amendment, suggests Taslitz, we can upend negative assumptions of modern search and seizure law, and create new institutional approaches that give political voice to citizens and safeguard against unnecessary humiliation and dehumanization at the hands of the police.

"In "Rape and the Culture of the Courtroom," Taslitz (a former prosecutor) is concerned to show how and why police, prosecutors, judges, and defense attorneys use their discretion to circumvent legal reforms in rape law."
--"Hypatia"

Rape law reform has been a stunning failure. Defense lawyers persist in emphasizing victims' characters over defendants' behavior. Reform's goals of increasing rape report and conviction rates have generally not been achieved. In Rape and the Culture of the Courtroom, Andrew Taslitz locates the cause of rape reform failure in the language lawyers use, and the cultural stories upon which they draw to dominate rape victims in the courtroom.

Cultural stories about rape, Taslitz argues, such as the provocatively dressed woman "asking for it," are at the root of many unconscious prejudices that determine jury views. He connects these stories with real-life examples, such as the Mike Tyson and Glen Ridge rape trials, to show how rape stereotypes are used by defense lawyers to gain acquittals for their clients.

Building on Deborah Tannen's pathbreaking research on the differences between male and female speech, Taslitz also demonstrates how word choice, tone, and other lawyers' linguistic tactics work to undermine the confidence and the credibility of the victim, weakening her voice during the trial. Taslitz provides politically realistic reform proposals, consistent with feminist theories of justice, which promise to improve both the adversary system in general and the way that the system handles rape cases.

View the Table of Contents. Read the Preface.

"An exciting and original work of historya].[A] bracing contribution to the somewhat dormant field of constitutional historya].that will be of interest to any historian of the Constitution. The book's main accomplishment is that it combines contemporary and historical arguments without slighting either, while providing important new evidence and insight into each."
"Journal of American History"

aInsightful in its approach to the Fourth Amendment, not only in terms of the law itself, but what is searched and seized, who particularly is subject to search and seizure, and what abuses led to broadening, thus capturing the full rich detail of the Fourth Amendmenta].Taslitz shows us in thorough fashion that we would be wise to learn from the past as we address the problems facing our society.a
--"Law and Politics Book Review"

"Reconstructing the Fourth Amendment is a remarkable scholarly accomplishment. It presents one of the most radical challenges to standard constitutional thinking--not just about searches and seizures but also about the interpretation of the Fourteenth Amendment as a protection of individual rights--in recent literature. Andrew Taslitz stakes out a radical and compelling position on a pressing contemporary issue--the protection of individual privacy against government invasion--and does so on impeccably researched and intellectually conservative grounds. It is a must read."
--H. Jefferson Powell, author of "A Community Built on Words: The Constitution in History and Politics"

"Taslitz's analysis provides a unique vision of the Fourth Amendment's purpose: to tame political violence from governmentalofficials, while forcing officials to treat each individual with respect and dignity. Taslitz's research on the search and seizure practices of Southern states during Reconstruction is illuminating and strengthens his thesis that respect for the individual lies at the core of the Fourth Amendment."
--Tracey Maclin, Professor of Law, Boston University School of Law

"Fourth Amendment scholarship has hitherto emphasized the amendment's background and gestation, i.e., the period before its inception in 1789. Taslitz, however, has removed a critical gap in that scholarship by illuminating the amendment's development after 1789, through the ante-bellum and Reconstruction periods, until 1868. Taslitz breaks new ground by exploring the Fourth Amendment's connections with political violence and slavery. He introduces readers to the interpretative diversity of and among scholars who debate the amendment's original and current contents."
--William Cuddihy, author of "The Fourth Amendment: Origins and Original Meaning, 602-1791"

The modern law of search and seizure permits warrantless searches that ruin the citizenry's trust in law enforcement, harms minorities, and embraces an individualistic notion of the rights that it protects, ignoring essential roles that properly-conceived protections of privacy, mobility, and property play in uniting Americans. Many believe the Fourth Amendment is a poor bulwark against state tyrannies, particularly during the War on Terror.

Historical amnesia has obscured the Fourth Amendment's positive aspects, and Andrew E. Taslitz rescues its forgotten history in Reconstructing the Fourth Amendment, which includes two novel arguments. First, that theoriginal Fourth Amendment of 1791--born in political struggle between the English and the colonists--served important political functions, particularly in regulating expressive political violence. Second, that the Amendment's meaning changed when the Fourteenth Amendment was created to give teeth to outlawing slavery, and its focus shifted from primary emphasis on individualistic privacy notions as central to a white democratic polis to enhanced protections for group privacy, individual mobility, and property in a multi-racial republic.

With an understanding of the historical roots of the Fourth Amendment, suggests Taslitz, we can upend negative assumptions of modern search and seizure law, and create new institutional approaches that give political voice to citizens and safeguard against unnecessary humiliation and dehumanization at the hands of the police.