The Volokh Conspiracy

If you read a lot of search warrants, you may have noticed something odd about the standard search warrant form.  Search warrants command the officer to conduct the search.  They don't just authorize the search. Instead they order the officer to conduct the search.  The warrant language is mandatory, not permissive.

Consider the federal warrant form. It not only commands the execution of the search, but it puts the command in allcaps and bold: "YOU ARE COMMANDED to execute this warrant . . ."  State warrants are written in the same basic way.  And authorizing statutes on issuing warrants usually have that language, too.

If you think about it, that's pretty weird. After all, it's the officer who applied for the warrant.  The officer is seeking permission to conduct the search, so it's a little strange to order the officer to do what the officer has asked for permission to do.

Plus, despite what the warrant form says, executing the warrant is not really mandatory.  If the officer doesn't execute the warrant, that's not a problem. The court can just reissue the warrant if the agents later decide to search, or not if they don't.  See, e.g., State v. Nunez, 67 P.3d 831 (Idaho 2003) (holding that, where officers did not execute a warrant during the period it was active and later sought a new warrant, the magistrate judge can just reissue the old warrant on the same piece of paper and it becomes a new warrant).

And sometimes the law doesn't even allow the officer to execute the warrant. If probable cause is lost after the warrant is obtained but before the warrant is executed, the officer can't do what the warrant says he is required to do. See United States v. Spencer, 530 F.3d 1003 (D.C. Cir. 2008) (Kavanaugh, J.) ("[W]hen officers learn of new facts that negate probable cause, they may not rely on an earlier-issued warrant but instead must return to the magistrate—for example, if the police learn that contraband is no longer located at the place to be searched.").

What gives?  What explains the mandatory language that gets treated as permissive language in practice?

The answer, I think, is history.

Here's the relevant picture, at least as I understand it. At common law, the basic apparatus of government law enforcement that we know today did not exist.  Police as we know it hadn't been invented yet.  Victims of crime were mostly on their own.  They had to investigate crimes themselves.  And they had to bring prosecutions, too.  Very few criminal cases were brought by the government.  Rather, victims of crimes had to serve as the prosecutors.  It was a regime of private enforcement of public rights.  See generally J.M. Beattie, Crime and the Courts in England, 1660-1800.

This doesn't mean there was no state at all.  Constables were around, and one of their jobs was helping people out with carrying out arrests and (in rare cases) executing search warrants.  But there wasn't much of an incentive for constables to do this.  One important role of the law of criminal procedure in that era was creating incentives for constables to do their jobs.  Here's what I wrote on this back in 2019, focusing on arrests—although the same was true for searches:

The part-time officials such as constables (and I'll just call them all constables for the sake of brevity) didn't have much interest in making arrests and detaining people after the arrest.  It was dangerous and time-consuming work, and they in general weren't paid for it.  Who wants to risk getting hurt arresting someone and forcibly bringing him to the local judge?   There's not nothing in it for the constable.  So part of the law regulating constables at common law was about forcing the constables to do their jobs—to make arrests and to detain prisoners—or else face civil suits or criminal punishment.

The law regulating constables had two features relevant here.  First, the constable was required to at least try to execute the warrant.  A constable who declined to do it could be charged with a crime or sued for neglect of duty.

And second, a constable who made an arrest but then let the prisoner go could be charged with the crime of escape (see 590-95) or sued in tort under the tort of escape. A constable was liable for escape when he made an arrest but then the prisoner went free, either because the constable intentionally let the prisoner go (called "voluntary escape") or  the prisoner escaped despite the constable's efforts to detain him (called "negligent escape").

From this perspective, the idea that a search warrant would order the constable to execute it makes a lot of sense.  In those days, search warrants were obtained mostly to recover stolen goods.  The property owner who had their stuff stolen would figure out where their stuff had been taken, and they would go to the local Justice of the Peace and seek a search warrant to search that place and bring their stuff back.   The applicant for the warrant was the victim, and he needed the constable to execute the warrant for him—something the constable may have had no interest in doing.

In that world, a search warrant needed to do more than authorize a search.  It had to order the constable to execute the search on the victim-complainant's behalf.

Consider the sample form search warrant that appeared in the influential Justice of the Peace manual, Richard Burns, The Justice of the Peace, And Parish Officer (1793 ed.):

Here, the warrant is being sought to recover stolen goods belonging to the victim, A.I.  The victim, A.I., has provided the basis of probable cause.   The victim, A.I,, has probable cause to believe that someone stole his stuff and that his stuff is now hidden in A.O.'s house.  The warrant is addressed to the constable, and it does "authorize and require" the constable, "with necessary and proper assistants," to break into A.O.'s house and to search A.O.'s house for A.I.'s stolen goods—and if A.I.'s things are found, to retrieve them and (if he's there) to arrest A.O. and to bring them to the Justice of the Peace.  The warrant is being sought by the victim, and the warrant is addressed to the constable as an order.

Incidentally, I think this also explains why warrants name the officer—or group of officers—who is required to execute the search.  That previously struck me as odd. After all, if the warrant is merely an authorization to search, who cares which specific officer executes it?  Some government agent can do it; that's all that should matter, right?  But at common law, who executes the warrant was important.  In an era when the warrant was commanding the constable to do something the constable probably didn't want to do, it was presumably important for the warrant to state exactly who had the responsibility to do what the court was commanding.

If I'm right, the answer to this puzzle is simple: the world changed, but no one updated the form.

The article is here; the Introduction:

From the earliest days of our nation, there was a shared sense that freedom of the press was an essential precondition for life in a newly liberated country. James Madison's first draft of what ultimately became the First Amendment reflected that sentiment. Introduced to the First Congress on June 8, 1789, it asserted that "[the] people shall not be deprived of their right to speak, to write, or to publish their sentiments; and the freedom of the press, as one of the great bulwarks of liberty, shall be inviolable."

The proposition that freedom of the press was an inviolable right was repeated in varying but wholly consistent language in the widest range of state constitutions of that time. Typical articulations were those of the Georgia Constitution of 1777 (declaring that the freedom of the press was to "remain inviolate forever"); the Massachusetts Constitution of 1780 ("the liberty of the press is essential to the security of freedom in a state: it ought not, therefore, to be restrained in this Commonwealth"); and the Pennsylvania Constitution of 1790 ("the printing presses shall be free to every person who undertakes to examine the proceedings of the legislature, or any part of government: And no law shall ever be made to restrain the right thereof").

Ultimately, the language of the First Amendment was redrafted in its current form, with freedom of the press specifically identified as requiring constitutional protection. The American press has, as a result, received broad protections against prior and subsequent restraints developed through twentieth-century jurisprudence. Cases such as Bridges v. California, New York Times v. Sullivan, and New York Times v. United States provide legal protections for the press that are unheard of in other democratic nations. At the same time, however, the Supreme Court has yet to recognize unique protections for the press needed for journalists to best perform their role in a democratic society. This is particularly troubling at a time when journalism in the United States faces an array of unique and increasingly dire challenges.

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Donald Trump makes obscure constitutional law great again. It is easy to rattle off the provisions: the Foreign and Domestic Emoluments Clauses, Section 3 of the Fourteenth Amendment, and now the Adjournment Clause. Time and again, Trump does something that implicates one of these seldom-litigated provisions, and almost immediately, people on both sides of the issue, who have never written about the clause before, become experts.

But rest assured, there is one person who wrote about these issues before anyone cared: Seth Barrett Tillman. And what makes Seth's scholarship so important, is that he addressed these issues outside the context of the current controversy. He argued that the President was not subject to the Foreign Emoluments Clause before a President Trump was even a remote possibility. Most scholars and advocates made up their minds on this issue with full knowledge of how it would affect Trump's case. It should count for something when a scholar has already written on a subject, and has done so behind the Rawlsian veil of ignorance.

Nearly two decades ago, Seth wrote about the interaction between the Recess Appointments Clause, the Adjournment Clause, and the Convening Clause. Seth had a four-part exchange with Professor Brian Kalt (another gem of the legal academy) in the Northwestern Law Review Colloquy (now Northwestern Law Review Online) on recess appointments. This exchange occurred several years before Noel Canning.

In the first installment, Seth explains that the Senate could terminate a recess appointment simply by terminating its session. Seth lays out the mechanics:

I suggest that, after the President makes a valid recess appointment, the Senate could convene, immediately terminate its session, and then reconvene instantly.

Even if the President were to adjourn Congress and make a recess appointment, the Senate could terminate its session and terminate that recess appointment. Last week, I flagged the issue of whether a presidential adjournment creates an intrasession recess or an intersession recess. I still don't know the answer. But Seth (of course) addressed both possibilities, and did so without the benefit of Noel Canning:

This strategy will only work for an intersession recess appointment. An intrasession recess appointment, i.e., an appointment made during an adjournment within a given session, lasts the remainder of that session and additionally for the life of the next session. Thus, if the President has made an intrasession recess appointment, then the Senate will have to convene and terminate two "sessions" back-to-back in order to terminate the President's intrasession appointment.

I'm not sure I saw anyone making this point about terminating recess appointments in the recent debates over the Adjournment Clause. So much for a dictatorial power that could not be checked.

In the second installment, Brian Kalt raises some problems with the "Tillman adjournment" He argues that the Senate cannot unilaterally adjourn a session. Rather, Kalt writes, "The Constitution provides, and uniform historical practice confirms, that a regular session ends when the Senate and House agree that it ends." And if they cannot agree, the President has the power to adjourn Congress.

Tillman replied in the third installment. He directly addressed the President's power to convene Congress:

Moreover, although Kalt states that the President has an "unquestioned power to convene (and reconvene, and re-reconvene) the Senate," the Constitution's text expressly limits this power to "extraordinary Occasions." Does Kalt seriously contend that a mere interbranch dispute over a mundane recess appointment is an "extraordinary Occasion"? Even after the Senate has rejected the appointment by going into recess and reconvening? . . .

Is Article II, Section 3, which states that the President "may convene both Houses, or either of them," counter-authority? Kalt seems to read this as an exclusive power of the President. I suggest the opposite: our sys-tem of separation of powers rejected executive prerogative over the legisla-tive houses. For the President to have any authority over legislative proceedings, an express grant was necessary. Such grants, standing alone, do not oust the houses of control over their own proceedings, including the timing of their sessions.

Much of the recent debates focused on the President's power to adjourn Congress. But the President also has the power to convene Congress. And it is argued that and supported by some authorities that doing so creates a new session. Based on the controversial Theodore Roosevelt precedent, the President could then make recess appointments in the infinitesimal intersession recess between the old session and the new one that is convened.

Kalt has the final word in the fourth installment.

Tillman also tries to make hay of the confusion surrounding the definitions of a "session," "recess," and "adjournment." To my textual evidence against a unilateral power of the Senate to terminate a regular session, Tillman retorts that my clauses mention adjournments, not Senate recesses or sessions. He follows this with an attempt to distinguish adjournments from recesses, citing Jefferson's Manual and a note on Australian practice. But the only relevant question for terminating recess appointments is what constitutes a session. Tillman's own go-to source, Jefferson's Manual, asks of Congress, "What then constitutes a session with them?" Jefferson's answer is similar to mine. Sessions begin by direction of either the Constitution, by law, or by the President. They can end either by the beginning of one of these new sessions, "by the efflux of their time" (i.e., the expiration of the term), or by an adjournment by "joint vote" of the two chambers. [FN15]

FN15: Jefferson does not mention the possibility of the President adjourning Congress in the case of a disagreement between the chambers, but Article II, Section 3 makes clear that this is the alternative to a "joint vote."

I appreciate this thoughtful exchange because it was made nearly two decades ago, when the consequences of the theories remained unknowable.

President Trump's new nominee for Attorney General is Pam Bondi, the former Florida Attorney General. I wrote about Bondi in some detail for my 2013 book, Unprecedented: The Constitutional Challenge to Obamacare.

Florida Attorney General Bill McCollum left office on January 3, 2011. Five months earlier, he had lost the Florida Republican gubernatorial primary to the eventual winner, Rick Scott. His bid to win the governor's mansion by opposing Obamacare didn't pan out. In fact, most of the attorneys general who joined the suit in Florida in 2010 were unsuccessful in obtaining higher office. South Carolina Attorney General Henry McMaster, who began the initial challenge against the Cornhusker Kickback, lost his bid for the governorship in 2010. Nebraska Attorney General Jon Bruning withdrew his candidacy for the Senate. Washington Attorney General Robert McKenna was defeated in the governor's race in 2012. Only Pennsylvania Attorney General Tom Corbett would go on to win the governor's mansion in Harrisburg in 2010.

McCollum was replaced by the newly elected Pam Bondi. Shortly before [District Court Judge] Vinson's opinion was issued [in February 2011], Bondi was faced with her first decision: should the twenty-six states involved in the suit obtain new counsel or stick with David Rivkin? For Bondi, the NFIB's hiring of Jones Day "accelerated the decision to switch." Looking ahead to the eventual end game, an attorney from the Florida Attorney General's office told me that the key question would be "who would argue at the Supreme Court."

Bondi was not as fond of Rivkin as McCollum was. More importantly to Bondi, Rivkin had never argued before the Supreme Court. Though it was an "agonizing decision" to "switch horses," the attorney general decided "it was not going to be Rivkin." All of the other attorneys general agreed to change counsel. Rivkin understood the decision and took it graciously, calling it a "typical Washington thing."

Bondi wanted "the best chance to win" the case with a top Supreme Court litigator. At its beauty contest, Florida interviewed over a dozen potential Supreme Court advocates. Florida did not consider Ted Olson of Gibson, Dunn, & Crutcher, who was President Bush's solicitor general and had argued Bush v. Gore and dozens of other cases before the Court. Despite his prolific record for conservative legal causes, Olson's work in challenging the constitutionality of Proposition 8 and supporting same-sex marriage was a red flag and cause for concern among the Republican attorneys general. Otherwise, Olson "would have certainly been in the running." Florida considered Maureen Mahoney and Gregory Garre of Latham & Watkins, as well as Bartow Farr (who would ultimately be appointed by the Supreme Court to argue an issue the government abandoned).

Eventually, the contest was narrowed down to three finalists: Paul Clement of Bancroft PLLC; Miguel Estrada of Gibson, Dunn & Crutcher; and Chuck Cooper of Cooper & Kirk.

Bondi flew to Washington to personally interview Clement. She "really liked [Clement's] demeanor" and thought he "had it all." With fifty arguments before the Court and an "incredibly eloquent" style, he was the "package deal." There was "no question" that Clement, and his superlative associate Erin Murphy at Bancroft, would be the team. Bondi told Supreme Court reporter Joan Biskupic that Clement "shared our passion, and he was confident we could win." And he came with an attractive price tag. The states gave Clement a flat fee of $250,000 to be shared by the twenty-six states.

And the rest is history.

Let's take a quick detour from the usual VC topics to talk about something a bit older—400 years older, to be exact. It's a Puritan text from Massachusetts, which makes it perfect for Thanksgiving. (Yes, I know the Puritans aren't the same as the Pilgrims. Stick with me here.)

This text has echoed across centuries, its meaning changing in fascinating ways. And it offers an unexpected window into today's debates over original versus traditional meaning.

You've probably heard American leaders refer to the United States as a "shining city upon a hill." The phrase became a political staple thanks to Ronald Reagan in the 1970s and 80s. But Reagan didn't invent it. He borrowed it from John Winthrop, the 17th-century governor of the Massachusetts Bay Colony, who got it from the Gospel of Matthew.

Winthrop used the phrase in 1630 in an essay titled A Model of Christian Charity. He wrote it either onboard the Arbella on his way to America or just before leaving England—historians aren't entirely sure. His goal? To describe the high stakes of the Puritans' mission in the New World. "For we must consider that we shall be as a city upon a hill," Winthrop wrote. "The eyes of all people are upon us."

The idea of America as an exceptional, world-altering place has stuck with us. But, as I discuss in a recent Legal Spirits podcast with Notre Dame historian Don Drakeman, the meaning of "city upon a hill" has changed dramatically.

For Reagan, Winthrop was a "freedom man," and the city symbolized a refuge for people seeking freedom. Reagan's version wasn't just about liberty, though; it was a point of national pride. He described the city as "a tall, proud city built on rocks stronger than oceans, wind-swept, God-blessed, and teeming with people of all kinds living in harmony and peace." It was a place of open doors, bustling commerce, and boundless opportunity.

It's a nice image—but totally unlike the original. True, Winthrop and the Puritans sought freedom, but not in Reagan's sense of commerce and individual liberty. Their vision was static, hierarchical society, united by Christian love. They weren't tolerant of religious disagreement and would not have seen intolerance as a failing. All kinds of people? They didn't even welcome other English Protestants.

And Winthrop's "city upon a hill" wasn't a boast—it was a warning. If the Puritans failed to uphold their covenant with God and show Christian love, their mission would fail. They wouldn't be a shining example. They'd be a cautionary tale, "a story and a by-word through the world."

Just now, constitutional scholars are debating the difference between original and traditional meaning. A Model of Christian Charity isn't a binding legal text, of course, but it seems to me it offers a nice example of the issues in the constitutional debate.

Think of A Model of Christian Charity as expressing the "original meaning." Winthrop's understanding is clearer than many original meanings, in fact. The Reagan-era version—the one most Americans know today—represents the "traditional meaning" that's evolved over time. And that meaning itself is 50 years old—which is reasonably old, in a country that dates back only 250 years.

So, which one is "correct"? The original meaning, or the meaning Americans have come to understand over time?

I dig further into all this in my recent Legal Spirits episode with Don Drakeman. You can check it out here.

From Gaetz's Tweet; "the incredible support of so many" is the usual marketing-speak, whether in politics or in business, but the "thoughtful feedback" (coupled with "so many" making clear that there were others) signals the truth well, I think:

I had excellent meetings with Senators yesterday. I appreciate their thoughtful feedback - and the incredible support of so many. While the momentum was strong, it is clear that my confirmation was unfairly becoming a distraction to the critical work of the Trump/Vance Transition. There is no time to waste on a needlessly protracted Washington scuffle, thus I'll be withdrawing my name from consideration to serve as Attorney General.

Of course, it would have been better if there had been no need for checks and balances here; but it's good to see them working. (The checks here, of course, are primarily the Senate, but closely tied to the freedom of public criticism and the eventual prospect of pushback at the ballot box.)

Obligatory hat tip to good ol' Jimmy (or was it Sasha Alex?):

[T]he great security against a gradual concentration of the several powers in the same department, consists in giving to those who administer each department the necessary constitutional means and personal motives to resist encroachments of the others. The provision for defense must in this, as in all other cases, be made commensurate to the danger of attack.

Ambition must be made to counteract ambition. The interest of the man must be connected with the constitutional rights of the place. It may be a reflection on human nature, that such devices should be necessary to control the abuses of government. But what is government itself, but the greatest of all reflections on human nature?

If men were angels, no government would be necessary. If angels were to govern men, neither external nor internal controls on government would be necessary. In framing a government which is to be administered by men over men, the great difficulty lies in this: you must first enable the government to control the governed; and in the next place oblige it to control itself.

A dependence on the people is, no doubt, the primary control on the government; but experience has taught mankind the necessity of auxiliary precautions. This policy of supplying, by opposite and rival interests, the defect of better motives, might be traced through the whole system of human affairs, private as well as public. We see it particularly displayed in all the subordinate distributions of power, where the constant aim is to divide and arrange the several offices in such a manner as that each may be a check on the other that the private interest of every individual may be a sentinel over the public rights. These inventions of prudence cannot be less requisite in the distribution of the supreme powers of the State.

UPDATE: Quote enlarged a bit, to include the first two paragraphs (I had originally started it with "If men were angels").