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Originalism and Hudson v. Michigan

Looking around the blogosphere, I have found criticisms of Hudson v. Michigan claiming that its refusal to impose a suppression remedy for knock-and-announce violations is inconsistent with originalism. I wonder, is that right? I’m not a constitutional historian, but I thought I would take a closer look at Hudson from an originalist perspective.

Imagine that you are 100% originalist. You think the Constitution should mean exactly what the language used by Framers would have been understood by the public to mean at the time it was enacted, regardless of what the modern Supreme Court has said it means. If this is the case, it seems to me that you would conclude that the execution of the warrant in the Hudson case did not implicate the Fourth Amendment at all. The Fourth Amendment was understood to apply only to the federal government, not to the states. See Twining v. New Jersey (1908). The search warrant in Hudson v. Michigan was a state warrant executed by state officers. If you are a serious originalist, the Fourth Amendment does not apply.

The next question an originalist would need to consider is whether the failure to knock and announce violates the Due Process clause of the 14th Amendment, which of course does apply to the states. Specifically, is knocking and announcing a “process” that was understood to be due when a warrant is executed and the police take away property? I’m not aware of any authority for that position, altough some may exist. Authorities like Hurtado v. California (1884) suggest that due process in the criminal context was understood to refer to the judicial process, not the executive process of executing warrants, but the suggestion is not entirely clear.   You may believe that the Framers intended — or the public understood — the Fourteenth Amendment to “incorporate” the Fourth Amendment.  Even so, I’m not sure how far that goes: the knock-and-announce requirement was not deemed a part of the Fourth Amendment until more than a century later, in 1995.

The final question is, assuming that Hudson was “due” the “process” of knocking and announcing, what’s the remedy for the violation? I don’t know what the remedy was for due process violations at the time of the framing of the Fourteenth Amendment, althought Hurtado – and later cases like Palko – suggests that perhaps the remedy was reversal of the conviction (rather than exclusion).