Commentary

On 17 August 1789, the Committee of the Whole considered the Committee of Eleven’s draft of the provision referred to as the ‘seventh clause of the fourth proposition’, also called the tenth amendment in some sources. The Committee of Eleven’s draft read, ‘The right of the people to be secured in their persons, houses, papers, and effects, shall not be violated by warrants issuing without probable cause, supported by oath or affirmation, and not particularly describing the place to be searched, and the persons or things to be seized’ (Annals of Congress, 1st Cong., 1st sess., 783).

A member moved to amend the proposed amendment because ‘he presumed there was a mistake in the wording of this clause’, moving that the first part of the clause read, ‘the right of the people to be secure in their persons, houses, papers, and effects, against unreasonable seizures and searches’ (Annals, 783). The sources, however, differ with regard to who made this motion and the motion immediately following it, inverting the proponents of the two amendments. The contemporary newspaper sources report that Egbert Benson made this motion (Gazette of the United States, edition of 19 August 1789, 147, and edition of 22 August 1789, 149; New-York Daily Advertiser, edition of 18 August 1789; New-York Daily Gazette, edition of 19 August 1789, 802). Thomas Lloyd, however, reports in the Congressional Register that Elbridge Gerry made the motion, and Gales and Seaton would later adopt this report in compiling the Annals of Congress (Annals, 783; Congressional Register, 2nd edn (3 vols., New York, 1790), vol. ii, 226, available at: https://catalog.hathitrust.org/Record/008587722).

Further, the sources differ on the exact wording of the proposed language. As seen in the quote above, some sources indicate that the motion proposed to insert the phrase ‘unreasonable seizures and searches’ (Annals, 783; Congressional Register, 226; Gazette of the United States, edition of 22 August 1789, 149), while other sources indicate that the motion inserted the more familiar phrase ‘unreasonable searches and seizures’ (Gazette of the United States, edition of 19 August 1789, 147; New-York Daily Gazette, edition of 19 August 1789, 802; New-York Daily Advertiser, edition of 18 August 1789).

Regardless of whether Benson or Gerry moved the amendment, the motion reintroduced the phrase ‘unreasonable searches and seizures’ (or ‘unreasonable seizures and searches’) into the proposed amendment. James Madison’s original proposal contained the phrase ‘unreasonable searches and seizures’, which was omitted in the Committee of Eleven’s draft (Annals, 452). Whether the Committee of Eleven intended to discard the phrase is unclear in the record. Nevertheless, the motion made in the Committee of the Whole appears simply to reintroduce Madison’s phrase, and the possible inversion of the words probably was not intended to have substantive import in the proposal’s operation. The reintroduction of the phrase does not appear to have elicited any debate, and all sources report that this amendment was adopted.

Immediately after the successful motion to reintroduce ‘unreasonable searches and seizures’, the other of either Benson or Gerry moved that the second part of the clause, rather than reading ‘by warrants issuing’, should be strengthened to read instead ‘and no warrant shall issue’ without probable cause (Annals, 783; Gazette of the United States, edition of 22 August, 149). The proponent of the motion indicated that he desired stronger language proscribing warrants issuing without probable cause, asserting that the Committee of Eleven’s ‘declaratory provision was good as far as it went, but he thought it was not sufficient…’ (Annals, 783; see also Gazette of the United States, edition of 22 August, 1789, 149). This motion failed, however, 'lost by a considerable majority’ (Annals, 783).

Next, Samuel Livermore moved to strike out the words '"and not" between "affirmation” and “particularly[]”…in order to make it an affirmative proposition’ (Annals, 783; Congressional Register, 226). This motion was also defeated (ibid.).

All of these motions bring the proposed amendment’s language closer to the familiar text of what eventually would be adopted as the Constitution’s Fourth Amendment. Yet, the successful motion possibly contained an unfamiliar word order (‘seizures and searches’), and the other two motions were defeated at this time.

The House considered the Committee of the Whole’s revisions only a few days later, and the text of the provision adopted by the House reported in the House Journal on 21 August reveals that the House adopted the text that eventually would be adopted as the Fourth Amendment: ‘The right of the People to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated; and no warrants shall issue but upon probable cause, supported by oath or affirmation, and particularly describing the place to be searched, and persons or things to be seized’ (Compare U.S. House Journal, 1st Cong., 1st sess., 21 August 1789 with U.S. Const. amend. IV). Unfortunately, no source reports any debates or discussion in the House surrounding the changes, but the changes must have been effected during the House’s consideration of the Committee of the Whole’s report between 19-21 August (See U.S. House Journal, 19-21 August 1789). The provision appears to have come before the House’s consideration on 20 August, yet the Congressional Register’s and the Annals’s accounts pass over any discussion of the provision, merely noting that the ‘seventh…clause[] of the fourth proposition’, among other provisions, was agreed to on that day (Annals, 796; Congressional Register, 243).

Surprisingly, the substance of the second motion – adding ‘and no warrant shall issue' – and of Livermore’s motion are in the final text. Livermore’s motion to change the clause dealing with warrants to an affirmative proposition may have been dependent upon the adoption of the ‘no warrant shall issue’ language. Yet, the adoption by two-thirds of the House of the ‘no warrant shall issue’ language is surprising in itself, having ‘lost by a considerable majority’ only days before.

The ultimate adoption of the final text’s specific language after failing in the initial attempts to introduce the terms in the Committee of the Whole reveals that these alterations must have been reintroduced when the House considered the amendments mere days later. It is likely that the different outcome was the result of some discussion, debate, or compromise not reported in the contemporary sources. The discrepancies and lacunae in the contemporary reports are regrettable, as they leave scholars with glimmers of a lost discourse and ample room to speculate.

Associated event

Report of the House - Fourth Proposition, Seventh Clause was proposed on 20 August 1789

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