Brian Murray (Seton Hall Law School) has posted Common Sense Constitutionalism and the Fourth Amendment, forthcoming in the Catholic University Law Review, vol. 76 (2026–27), on SSRN. Here is the abstract:
Over sixty years ago, the Supreme Court announced “[t]here is no war between the Constitution and common sense.” For the next several decades, and during the rise of originalism, the Court has cited “common sense” explicitly in Fourth Amendment cases. Does this mean common sense is part of the original meaning of the Fourth Amendment? Is originalism responsible for its place in Fourth Amendment doctrine? This Article studies how the Supreme Court has referenced, cited, and used common sense in Fourth Amendment cases to shed light on these questions. It explores how the phrase has been used, by which justices, and in which contexts, and examines its apparent purpose and meaning. The Court has suggested that common sense is inherently part of individualized suspicion and its judicial determinations, a component of reasonableness, and a separate or extra evaluative and adjudicative concept that can support the Court’s reasoning. These uses reflect two methods of constitutional interpretation that have informed Fourth Amendment interpretation and adjudication: originalism and common law constitutionalism. The doctrine suggests common sense is a component of original meaning in some contexts. But it was used before originalism was formally explicated as a legal theory, by justices many would consider non-originalist, and without express reference to original meaning. Further, the Court is responsible for its introduction into and continued place within the doctrine through fidelity to its own precedents. Together, this indicates common sense is a component of original meaning in some contexts while also part of the broader interpretive tradition relating to the Fourth Amendment, as announced by the Court, in a common law style adjudicative fashion. Put differently, the Court’s usage of common sense transcends originalism and common law constitutionalism. Given the prevalence of originalist methods, and the enduring tradition of relying on Fourth Amendment precedent, common sense is here to stay.
Important paper and deeply interesting. Highly recommended! Download it while it’s hot!
Murray has a very interesting discussion of the role that “common sense” plays in Public Meaning Originalism—for a theoretical summary see Original Public Meaning, 2023 Mich. St. L. Rev. 807. As Murray notes, Justice Thomas in Glover defined the operative common sense as “information accessible to people generally, not just some specialized subset.” That formulation tracks directly the sense that “public” has in “original public meaning.” That would suggest that common sense may actually be playing an interpretive role that is fully consistent with public meaning originalism. Common sense provides the shared context of constitutional communication that structures contextual disambiguation and pragmatic enrichment. Murray’s central finding that common sense “transcends” originalism, common law constitutionalism, and traditionalism may be less paradoxical than it first appears: a concept that aids in recovering fixed public meaning would naturally appear across methodological frameworks, because it is doing epistemic work that is prior to the choice of interpretive theory. Read Murray.
To receive a daily summary of posts from Legal Theory Blog by email, get a free subscription to Legal Theory Stack.