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In several recent cases, the Supreme Court has declared that the principal criterion for assessing whether searches and seizures are unreasonable within the meaning of the Constitution is whether they were allowed by eighteenth-century common law. This new form of Fourth Amendment originalism, long championed by Justice Scalia, breaks dramatically not only with the ahistoric approach of the Warren and Burger Courts to search-and-seizure questions, but also with an older tradition of using the background of the Fourth Amendment to illuminate not its precise demands but its general aims. Tying legality under the Fourth Amendment to legality under common law may have large consequences. In particular, it may make it more difficult to argue that concerns largely ignored by common law - notably equal treatment and the use and dissemination of information gathered by the government - should, nonetheless, inform a constitutional assessment of reasonableness. This article traces the emergence of the new Fourth Amendment originalism and argues the doctrine should have little appeal, even to those sympathetic to originalism more broadly. The Court's revised understanding of the Fourth Amendment is faithful neither to the text of the amendment nor to what we know of its intent. Justice Scalia has suggested that a Fourth Amendment anchored in common law will, at least, be more principled and predictable, but that, too, is unlikely, in part because common-law limits on searches and seizures were thinner, vaguer and far more varied than Justice Scalia and the Court seem to suppose. What the common law has of value to offer Fourth Amendment law is what it has to offer constitutional law more generally: not its rules, but its method.
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