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12/20/2017

Nonconstitutional Adjustments and the Carpenter Case
Mike Rappaport

I have written three prior posts on the Third Party Doctrine and the Carpenter Case – see here, here, and here.  My basic, tentative take, is that under the original meaning, cell phone customers probably aren't currently protected by the Fourth Amendment, but that they could be protected by the actions of states, of the federal government, or through private contracts with cell phone companies.

Many people feel strongly that cell phone customers should be protected (as do I) and will be tempted to argue (as I do not) that the Fourth Amendment should be “interpreted” to protect them.  Some people will argue – in a variety of ways – that the circumstances of the modern world are different from those in the Framers’ world and therefore the Amendment must be adjusted to reflect modern circumstances (if not modern values).  Even if private contracts or state laws could be employed to protect customers under the Fourth Amendment’s original meaning, the process of forming these contracts or enacting these laws is thought to be too burdensome.  Instead, the Supreme Court should modify the Constitution to protect customers without these private or state adjustments.

One way to look at this situation is to see that there are two sets of adjustments: nonconstitutional and judicial adjustments.  One way to protect Fourth Amendment rights is through nonconstitutional adjustments (private contracts and state laws).  If these adjustments are made, then the Constitution is “updated” to modern circumstances.  Such adjustments are not always possible (for example, expanding federal power to regulate commerce during the New Deal), but often they are.  But even where possible, such nonconstitutional adjustments require effort and time.  For example, changing the contracts between cell phone companies and customers would involve significant effort – a publicity campaign by privacy groups followed by consumers caring about those contracts.  For many people, these nonconstitutional adjustments are just too difficult.

But the alternative to employing nonconstitutional adjustments is to employ judicial adjustments – having judges rewrite or update the Constitution to reflect their view of what modern circumstances require.  In my view, such judicial updating is seriously problematic for a variety of reasons, but most importantly that having a 9 member court in Washington D.C. redraft the Constitution is not very attractive.

Unfortunately, many people, including most nonoriginalists, seem to believe that it is better to have the Supreme Court redraft the Constitution than to incur the costs of nonconstitutional adjustments.