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Introduction
It is unclear to me that originalists' qualified immunity debate is framed in the correct terms. Or that it is framed in the correct time period. The current debate turns on whether officers enjoyed common-law tort immunities in 1871, when Congress passed the Enforcement Act that today appears in 42 U.S.C. § 1983.1 But the constitutional claims underlying qualified immunity cases often come from the Bill of Rights-not Reconstruction.2 So the originalist inquiry should focus (at least in the first instance) on whether officers enjoyed constitutional immunities in 1791. And the historical pleading practices embraced in English common law and by our first Congresses suggest the answer is "yes."3
This Article challenges the premises of the current debate by considering the archetypal qualified immunity case: a Fourth Amendment plaintiff's claim against an officer who allegedly executed an "unreasonable" search or seizure. In 1791, the word "unreasonable" meant "against the reason of the common law."4 That common law brought with it a host of immunities for officers charged with searching and seizing.5 Thus, it is possible that a Fourth Amendment claim at the Founding required plaintiffs to show that an officer's search or seizure was not only wrongful, but so wrongful that the plaintiff could overcome the officer's common-law immunities. If that is correct, then today's originalist critics of qualified immunity must broaden their focus and shift their debate in both time (from 1871 to 1791) and focus (from torts to the Constitution).
I. The Current Debate
Qualified immunity is a hot topic. It is the rare legal doctrine that has captured the attention of mainstream news and everyday Americans.6 It has stimulated debates and prompted Congress to consider whether to amend § 19837-the material provisions of which have remained unaltered since its enactment in 1871. Qualified immunity generates a ton of federal court litigation8 and has created a serious divide amongst courts and legal scholars.9
The part of the present debate that I find most interesting is whether originalists must abjure qualified immunity. Some-Professor William Baude chief among them-have argued yes.10 Others-most recently Scott Keller-have argued no.11 The fault line between them is whether some form of immunity had some form of common-law provenance in 1871.12 If so, Congress might have silently enacted that...