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06/15/2017

Originalism and Carpenter v. United States
Michael Ramsey

At Volokh Conspiracy, Orin Kerr: How should an originalist rule in the Fourth Amendment cell-site case? From the introduction:

The Supreme Court recently agreed to hear Carpenter v. United States, a case on whether the Fourth Amendment protects historical cell-site records. In this post, I want to focus on a small but potentially important part of the Carpenter litigation: How should an originalist Justice vote in the case? There are many different flavors of originalism, of course, and originalist arguments often can be used to argue for different outcomes. But in this post I want to discuss one originalist argument that I think is significant. I’ll then ask readers to weigh in on it.

Let’s start with the obvious: The Framers could not have imagined a world of cell-site records. And the original public meaning of the Fourth Amendment is open to a wide range of interpretations at different levels of generality. With that said, the text of the Fourth Amendment does have an important clue about what the Fourth Amendment was originally understood to mean that might be important to the Carpenter case.

Here’s the opening text of 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[.]

As Justice Antonin Scalia emphasized in his concurrence in Minnesota v. Carter, the word “their” can be understood as important in historical context. It signals that to assert a Fourth Amendment violation, a person’s own self, houses, papers or effects must be unreasonably searched or seized.

[extensive analysis follows]

Sounds right to me (as an original textualist matter).  My only hesitation is whether a Scalia-inspired originalist would be inclined to look at the bigger picture to assess whether a ruling for the government would lead to a general level of privacy and security from search inconsistent with the general level of the founding.  This is the approach that Scalia (but not Thomas) took -- somewhat controversially among originalists -- in the Kyllo case (thermal imaging), and that Scalia went along with in the Riley case (search of cell phone incident to arrest).