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33 posts from January 2018

01/31/2018

New Book: "Armed in America" by Patrick Charles
Michael Ramsey

Recently published: Patrick Charles, Armed in America: A History of Gun Rights from Colonial Militias to Concealed Carry (Prometheus Books 2018).  Here is the book description from Amazon: 

This accessible legal history describes how the Second Amendment has been interpreted throughout most of American history and shows that today's gun-rights advocates have drastically departed from the long-held interpretation of the constitutional right to bear arms.

This illuminating study traces the transformation of the right to arms from its inception in English and colonial American law to today's impassioned gun-control debate. As historian and legal scholar Patrick J. Charles shows, what the right to arms means to Americans, as well as what it legally protects, has changed drastically since its first appearance in the 1689 Declaration of Rights.

Armed in America 
explores how and why the right to arms transformed at different points in history. The right was initially meant to serve as a parliamentary right of resistance, yet by the ratification of the Second Amendment in 1791 the right had become indispensably intertwined with civic republicanism. As the United States progressed into the 19th century the right continued to change--this time away from civic republicanism and towards the individual-right understanding that is known today, albeit with the important caveat that the right could be severely restricted by the government's police power. 

Throughout the 20th century this understanding of the right remained the predominant view. But working behind the scenes was the beginnings of the gun-rights movement--a movement that was started in the early 20th century through the collective efforts of sporting magazine editors and was eventually commandeered by the National Rifle Association to become the gun-rights movement known today.

Readers looking to sort through the shrill rhetoric surrounding the current gun debate and arrive at an informed understanding of the legal and historical development of the right to arms will find this book to be an invaluable resource.

01/30/2018

John McGinnis on Originalism and the Judicial Confirmation Hearings
Michael Ramsey

At Liberty Law Blog, John McGinnis: Originalism Needs an Adult Education Program.  From the opening:

In the academic world, originalism has become the theory of constitutional interpretation to beat. It has developed a rich and subtle literature both explaining its content and defending its use. As a result of these labors, a large gap has opened between the understanding of originalism within the academy and outside it. That gap was very visible in the confirmation hearing for Michael Brennan for the Seventh Circuit Court of Appeals, because the discussion of originalism was confused and burdened with some elementary mistakes. This is not to criticize the participating Senators, who came of age when modern originalism was not even taught in law schools, or the nominee, who in part was surely just trying to avoid controversy in a very closely divided Senate. But the performance all around suggests the need to make originalism more publicly accessible so that it is not caricatured and undermined.

The discussion began when Senator John Kennedy of Louisiana asked the nominee how to interpret ambiguous provisions in the Constitution. The nominee could have suggested what I think now would be the standard approach among most originalists: that one should follow the best interpretation among the possibilities. Senator Kennedy did seem to acknowledge that there might be ways of resolving ambiguity, such as by looking at the Federalist papers. But he then moved in for what he thought was a devastating question which I paraphrase: With the Federalist Papers you might discover what two Framers thought. What about the other 39?   The nominee who had mentioned in passing that originalism was defined by its public meaning responded to the effect that in that case originalists would roll up their sleeves and work harder.  The better answer is that Federalist papers were public documents favoring the ratification of the  Constitution. Unpublished thoughts and beliefs of the other Framers were not likely to be as relevant to the public meaning of the document, even if we could find evidence of them.  Senator Kennedy seemed to be assuming an old and not widely held view of originalism—that it is a search for the intent of the Framers. ...

Plus further questions from Senators Feinstein and Hirono.  Apart from possible misunderstandings, I'm struck by the extent that originalism has penetrated not just Supreme Court confirmation hearings but courts of appeals confirmation hearings.

Professor McGinnis concludes with this suggestion (among others):

The hearing persuaded me that there needs to be a better way of translating the progress in originalism in the academic world to the public. First, President Trump could send to the Senate an appellate court nominee who has used originalism centrally in his scholarship. That nominee would have no choice but to educate the Senators and though them the public. It is rumored that Professor Nicholas Rosenkranz will be nominated to the Second Circuit. There are many good reasons to nominate such a superb candidate and his capacity for public education is yet another. 

Agreed, and also how about nominating Professor McGinnis?

01/29/2018

Jessica Lowe: Thank You, Mr. Madison
Michael Ramsey

Jessica Lowe (University of Virginia - School of Law) has posted Thank You, Mr. Madison (Tulsa Law Review, Vol. 53, 2018) on SSRN.  Here is the abstract:

Alexander Hamilton may be fashionable these days, but according to two recent books, it is James Madison whom Americans should thank for — well, for just about everything. Michael Klarman’s The Framers’ Coup and Jeremy Bailey’s James Madison and Constitutional Imperfection persuasively demonstrate Madison’s centrality to the American constitutional tradition. They are very different books. Klarman’s is a sweeping and much-needed narrative history of the entire founding period, from the troubles of the 1780s through the ratification of the first amendments to the Constitution. Bailey’s is a work of political science, and focuses primarily on what came after — on the whole Madison, especially his later career — examining the difference between Madison and what has become known as “Madisonian Constitutionalism.” Both books provide critical additions to the multidisciplinary literature on the American founding, and in their own ways critique the idea of constitutional veneration

Were the Framers elitist? Certainly. But maybe, instead of lamenting the Framers’ coup, we should say thank you, James Madison. Madison’s example provides an important caution about realizing the boundaries between the ideal and the possible. Today, America still has Madison’s imperfect Constitution — perhaps made more perfect by some developments in history, less perfect by others and by the passage of time. Here, a Hamiltonian solution might (ironically for an essay about Madison) be instructive. Not Hamiltonian in the 1790s sense, but in the sense of the popular twenty-first century musical: a reappropriation of America’s founding to seize the many things that it does have to say to twenty-first century America. Americans’ reverence for the founding provides a kind of shared glue, a common narrative, for the nation. This is, of course, also a problem, given the way that, as Klarman lays out, that narrative has been used at various points in American history. But perhaps the solution to that could be not to cede the ground, but to find a way to enthusiastically reclaim it.

01/28/2018

Matthew Lindsay: The Presumptions of Classical Liberal Constitutionalism
Michael Ramsey

Matthew J. Lindsay (University of Baltimore - School of Law) has posted The Presumptions of Classical Liberal Constitutionalism (Iowa Law Review, Vol. 102, 2017) on SSRN.  Here is the abstract:

Richard A. Epstein’s The Classical Liberal Constitution is an imposing addition to the burgeoning body of legal scholarship that seeks to “restore” a robust conception of economic liberty and limited government to its rightful place at the center of American constitutionalism. Legislators and judges operating within a “classical liberal conception of government,” Epstein explains, would approach skeptically “[a]ll [regulatory] proposals that deviate from the basic common law protections of life, liberty, and property.” Classical liberal constitutional courts would thus renounce the toothless rational basis review of the post-New Deal “progressive mindset,” and instead subject to exacting scrutiny the government’s “purported justifications both as to the ends [it] chooses and the means [it] uses to achieve them.” Such a recalibration of constitutional scrutiny, Epstein predicts, would “exert a profound,” and highly salutary, “effect on the size of government.”

Readers who share Epstein’s normative commitments naturally will find his constitutional vision compelling. But The Classical Liberal Constitution is not merely preaching to the choir; it is also addressed to those of us — constitutional progressives and conservatives alike — who do not necessarily share the author’s definition of individual liberty, faith in unregulated markets, or enthusiasm for limited government. And this large and politically heterogeneous segment of Epstein’s audience will just as naturally greet his constitutional vision with suspicion that Epstein is, to paraphrase Justice Holmes, attempting to engraft upon the Constitution a political and economic theory to which a majority of the country does not subscribe.

I'm a little offended by the proposition that "Readers who share Epstein’s normative commitments naturally will find his constitutional vision compelling."  Some of us think there's sometimes a difference between one's normative commitments and what the Constitution actually says.

01/27/2018

Robert Natelson: Why Nineteenth Century Bans on “Sectarian” Aid Are Facially Unconstitutional
Michael Ramsey

In The Federalist Society Review (vol. 19, 2018), Robert Natelson (Independence Institute): Why Nineteenth Century Bans on “Sectarian” Aid Are Facially Unconstitutional: New Evidence on Plain Meaning.  Here is the introduction (footnotes and some text omitted):

 In Trinity Lutheran Church of Columbia, Inc. v. Comer, the Supreme Court struck down a Missouri state policy of restricting religious institutions from participating in grant programs. The policy arose from the state government’s efforts to comply with its state constitution’s prohibition on use of public funds to benefit “any church, sect or denomination of religion.”

Many states have prohibitions even broader than the one in the Missouri constitution. Most state constitutions adopted during the nineteenth century, unlike that currently prevailing in Missouri, identified their proscribed recipients and purposes as sectarian. This was true of Missouri’s superseded 1875 charter, and it is also true of charters under which many states still operate. For example, the current Colorado constitution, ratified in 1876, provides:

No appropriation shall be made for charitable, industrial, educational or benevolent purposes . . . to any denominational or sectarian institution or association. …

Neither the general assembly, nor any county, city, town, township, school district or other public corporation, shall ever make any appropriation, or pay from any public fund or moneys whatever, anything in aid of any church or sectarian society, or for any sectarian purpose, or to help support or sustain any school, academy, seminary, college, university or other literary or scientific institution, controlled by any church or sectarian denomination whatsoever; nor shall any grant or donation of land, money or other personal property, ever be made by the state, or any such public corporation to any church, or for any sectarian purpose.

No sectarian tenets or doctrines shall ever be taught in the public school . . . .

In some cases, prohibitions against aid to sectarian organizations or for sectarian purposes were not in the state’s original constitution, but were added by amendment during the nineteenth century; many of these changes were minor alterations in wording, suggesting that no major substantive changes were contemplated.  In other cases, twentieth century constitution writers copied such prohibitions from their states’ earlier charters.

Commentators have long argued that prohibitions against aid to sectarian groups are void under the First and Fourteenth Amendments to the U.S. Constitution. …

...

Part I of this article examines language from nineteenth century state constitutions to determine whether, as some claim, sectarian meant merely “religious” or “denominational.” The texts tell us rather clearly that this was not the case—that sectarian held a meaning quite distinct from “religious” or “denominational.” Part II surveys contemporaneous dictionary definitions and newspaper usage. Those sources show that sectarian referred specifically to religions and religious people the speaker deemed bigoted or out of the mainstream. Part III summarizes the constitutional implications of these findings. However, this article does not discuss the standards of constitutional review or aspects of those standards such as levels of scrutiny or burdens of proof. The focus here is on the meaning of sectarian—a subject not heretofore reported accurately in the legal literature.

01/26/2018

Victoria Nourse: Reclaiming the Constitutional Text from Originalism
Michael Ramsey

Victoria Nourse (Georgetown University Law Center) has posted Reclaiming the Constitutional Text from Originalism: The Case of Executive Power (California Law Review, forthcoming) on SSRN.  Here is the abstract:

There are consequences to theories in a world questioning the power of the President. For decades, some originalists, including Justice Scalia, maintained that the President enjoys “all” executive power. Of course, this is not the Constitution’s actual text (which refers to “the” executive power, not “all” executive power) — but a highly contestable, and potentially dangerous, addition of meaning to the text. As I demonstrate in this Article, adding to the actual text of the Constitution is common in the originalist literature on executive power, whether the precise question is the President’s removal power, the President’s power to refuse to enforce the law, or the President’s obligations under the Emoluments Clause. Using elementary principles from the philosophy of language — principles that apply to all communication — I explain how originalist interpreters in this area “pragmatically enrich” the text, without articulating or justifying those additions and without seeking to test those meanings against the full text of the Constitution. Before one gets to history, the originalist has assumed a unit of textual analysis — a word, a clause, a paragraph — that may effectively enrich the meaning to reflect the interpreter’s preferred policy position. If this is correct, originalists must theorize the “interpretation zone,” a putatively neutral place from which historical inquiries are launched, and explain why interpreters may add meaning by pragmatic enrichment in this zone — particularly if those meanings are falsified by the rest of the Constitution. Perhaps more importantly, originalism’s opponents need to start talking about how to reclaim the actual text of the Constitution.

(Thanks to Seth Barrett Tillman -- whose work is prominently discussed in the article -- for the pointer).

On a  quick read, I think this article is kind of arguing against a straw man.  I don't think any originalists (or textualists -- the article uses both terms) think that meaning arises only from the literal meaning of single words or single clauses.  Nor would they deny that in reading the words of the Constitution, one finds words and limitations that are implied as well as the ones actually stated.  If one were to put to Justice Scalia the proposition that he added the words "all of" to "The executive Power" in Article II, Section 1, of course he would agree;  indeed, he said as much in Morrison: "[Article II, Section 1] does not mean some of the executive power, but all of the executive power."  As Larry Solum has discussed in various places (see, for example, here) it's inevitable that we add words and limitations that are implied by a communication, in order to give the communication meaning.  If I say "I'm going to have dinner" the obvious implication is (in ordinary circumstances) that this means "I'm going to have dinner soon" rather than "I'm going to have dinner sometime in my life."

Nor would any originalists deny that such implications must be justified.  To the extent "originalist interpreters in this area 'pragmatically enrich' the text, without articulating or justifying those additions and without seeking to test those meanings against the full text of the Constitution" -- as Professor Nourse charges -- then those originalist interpreters are just doing it wrong, and may be criticized on that ground.  But originalist interpreters typically don't find implications without justification.  Rather, they justify the implications they find in the text, Justice Scalia did in Morrison, by reference to the context within and beyond the text.  Professor Nourse may not think the justifications are adequate, but that is a different argument.

Nonetheless, it seems like an important paper because it's worth strongly reminding originalists and textualists (and other readers) that one's initial reading of a text may not be the right one; one should consider the extent to which the initial reading is adding words by implication, as Professor Nourse explains -- and if so, whether the implication is justified.  Although the paper has a hostile tone, originalists need not view its core methodological contention as hostile.

FURTHER THOUGHTS:  On reflection, I'm not sure that Professor Nourse's interpretive methodology, at least as applied to constitutional interpretation, is as benign as I at first supposed.  Some parts of the article appear to suggest that if a text's literal language is ambiguous -- that is, if in her terms it requires pragmatic enrichment -- then the text is irredeemably ambiguous and can only be given meaning through constitutional construction disconnected from original meaning.  I'm not sure if that's what she is saying, and I hope it isn't, because that proposition seems flatly incorrect to me.  Some texts (I would say many texts) whose literal language is ambiguous can be made unambiguous by considering context.  Of course, the consideration of context must be done properly, and in some cases even thorough examination of the context may not resolve the ambiguity.  But he need to consider context does not in itself make the search for a definite textual meaning impossible.

01/25/2018

Justice Gorsuch on Textualism and Federalism in Artis v. District of Columbia
Michael Ramsey

Artis v. District of Columbia, decided by the Supreme Court on Monday, on its face looks like a routine case about a technical aspect of the tolling of statutes of limitations.  But Justice Gorsusch's dissent (joined by Kennedy, Thomas and Alito) is interesting on two counts.

First, Gorsuch shows that a textualist approach can have plenty of nuance.  The relevant statute, 28 U.S.C. 1367, says that when a state law claim is dismissed from federal court, the "period of limitations for" refiling in state court "shall be tolled while the claim is pending [in federal court] and for a period of 30 days after it is dismissed unless State law provides for a longer tolling period." On first reading the statute, I thought it obviously meant that the state limitations period is suspended (that is, does not run) for the time the case is in federal court.  That's what the majority held.  But Gorsuch's opinion deploys a series of textual and contextual arguments to show otherwise -- rather, it means that the state limitations period does not expire while the federal case is pending and for an additional 30 days.  The dissent demonstrates (a) that there are actually two common meanings of "tolled" and (b) that the one it chooses makes better sense of the statute taken as a whole.

Second, the dissent is very strong on federalism.  This comes up because Justice Gorsuch argues that the majority's reading of the statute appears to exceed Congress' enumerated powers.  He begins:

In our constitutional structure, the federal government’s powers are supposed to be “few and defined,” while the powers reserved to the States “remain . . . numerous and indefinite.” The Federalist No. 45, p. 328 (B. Wright ed. 1961) (Madison); McCulloch v. Maryland, 4 Wheat. 316, 405 (1819). No doubt, the Constitution affords Congress the authority to make laws that are “necessary and proper” to carry out its defined duties. Art. I, §8, cl. 18. But it is difficult to see how, on the Court’s interpretation, section 1367(d) might be said to survive that test—how it might be said to be necessary and proper to effectuate any recognized federal power or how it could be called anything other than an unconstitutional intrusion on the core state power to define the terms of state law claims litigated in state court proceedings.

Several paragraphs of argument follow.  Then:

The Court’s approach isn’t just unnecessary; it isn’t proper either. A law is not “proper for carrying into [e]xecution” an enumerated power if it “violates the principle of state sovereignty” reflected in our constitutional tradition. Printz v. United States, 521 U. S. 898, 923–924 (1997). The word “proper” was “used during the founding era to describe the powers of a governmental entity as peculiarly within the province or jurisdiction of that entity.” Lawson & Granger, The “Proper” Scope of Federal Power: A Jurisdictional Interpretation of the Sweeping Clause, 43 Duke L. J. 267, 297 (1993). Limitations periods for state law claims fall well within the peculiar province of state sovereign authority. As Chancellor Kent explained, “‘[t]he period sufficient to constitute a bar to the litigation of sta[l]e demands, is a question of municipal policy and regulation, and one which belongs to the discretion of every government, consulting its own interest and convenience.’” Sun Oil Co. v. Wortman, 486 U. S. 717, 726 (1988) (quoting 2 J. Kent, Commentaries on American Law 462–463 (2d ed. 1832)). Described as “laws for administering justice,” time bars are “one of the most sacred and important of sovereign rights and duties.” Hawkins v. Barney’s Lessee, 5 Pet. 457, 466 (1831). And “from a remote antiquity,” they have been the province of the sovereign “by which it exercises its legislation for all persons and property within its jurisdiction.” McElmoyle ex rel. Bailey v. Cohen, 13 Pet. 312, 327 (1839). Our States have long “exercise[d] this right in virtue of their sovereignty.” Ibid.

01/24/2018

Lawrence Solum on Textualism
Michael Ramsey

At Legal Theory Blog, Lawrence Solum: Legal Theory Lexicon: Textualism.  From the post's basic description of textualism:

The Plain Meaning of the Text

Let’s begin with a basic question: what do we mean when we say “the plain meaning of the text.” A really good answer to that question would require us to develop a theory of meaning in general, but we must avoid that enterprise--at least for the purposes of this post. At one level, the idea of plain meaning is pretty simple. The plain meaning of a legal text is the meaning that would be understood by regular folks who were competent speakers of the language and who knew that they were reading a statute (or court decision, etc.).

But this preliminary formulation is too simple. Some laws are meant for all citizens (e.g., criminal statutes) and some are meant only for specialists (e.g., some sections of the tax code). A text that means one thing in a legal context, might mean something else if it were in a technical manual or a novel. So the plain meaning of a legal text is something like the meaning that would be understood by competent speakers of the natural language in which the text was written who are within the intended readership of the text and who understand that the text is a legal text of a certain type. 

What "Plain Meaning" Is Not

Another way to understand plain meaning is to contrast this idea with others.  Here are some:

  • Literal Meaning.  The literal meaning of a text is provided by its semantic content alone, with no consideration of context.  Literal meaning is sparser than plain meaning, because the conventional semantic meaning of many words and phrases is very sparse, with contextual disambiguation or precisification enriching the plain meaning.
  • Purposive Meaning.  Sometimes we use the word "meaning" to represent the purpose for which a text was written.  Purposive interpretation is a rival of textualism.
  • Reasonable Meaning:  The plain meaning of a text may not be the best meaning (from the perspective of some policy goal or normative theory).  The plain meaning of a text may not be the "reasonable"or "desirable" meaning.

And later on, from the part titled "The Case for Textualism":

If we view textualism as a semantic theory of interpretation, the question we need to ask is whether the plain meaning is the linguistic meaning of the text.  There is no general answer to this question--it all depends on the nature of the text.  Texts that are directed to a particular audience on a particular occasion may have speaker's meaning.  But in general legal contexts that are directed to the public at large will have sentence meaning--that is, their meaning will be a function of the conventional semantic meaning of the text and not the intentions of a particular speaker.

But if we view textualism as a normative theory of interpretation, we need to ask to ask why interpreters of legal texts should aim for interpretations that yield that “plain meaning of the text.” The usual answer to this question is that plain meaning best serves the rule of law values of publicity, predictability, certainty, and stability of the law. One of the important rule of law values is publicity: the law should be accessible to ordinary citizens. Ordinary citizens are likely to interpret statutes to have their plain meaning, because ordinary folks rarely have the training to understand legislative history and even if they did have such training, it would simply be too costly to analyze the legislative history of statutes to determine their meaning.

A minor quibble: the foregoing paragraphs, and some other parts of the post, seem to assume that textualism is inconsistent with the use of legislative history.  I'm not sure all textualists would agree, and even if they did agree they might not think the reason was that legislative history is inaccessible to ordinary people.  Justice Scalia famously opposed legislative history in analyzing statutes, but his objection was principally that modern legislative history was easily manipulable and was not drafted by or often even read by members of Congress.  Scalia did at times use something like legislative history -- the Convention debates -- in interpreting the Constitution.  (See my discussion here).  And other textualists might say that textualism does not require as rigid approach as Scalia promoted for statutes.  As with the Convention debates and the Constitution, legislative history used correctly may indicate how the drafters understood language, which in turn may resolve ambiguities or otherwise inform the interpreter's understanding of the words of the text.  My view of textualism is not so much that it limits the evidence one may consult, but that it limits the purpose for which one consults it.  Textualism, I would say, requires an interpretation that gives meaning to particular words of a legal enactment, rather than finding a meaning in the spirit, purpose, structure, intent, etc., of the enactment irrespective of its actual words.  (Some further thoughts here, on "historical textualism").

01/23/2018

Yvonne Tew: Originalism: A Uniquely American Preoccupation?
Michael Ramsey

Yvonne Tew (Georgetown University Law Center) has posted Originalism: A Uniquely American Preoccupation? 931 Diritto Pubblico Comparato ed Europeo (Online) 647-652 (2017)) on SSRN.  Here is the abstract:

Originalismo: una preoccupazione unicamente americana? – Is originalism a uniquely American preoccupation? The short answer is no. The longer answer is that originalist arguments take on distinct variations that reflect a nations’ particular cultural, historical, and political conditions. This paper explores the use of originalist arguments in contexts outside the United States, drawing on India, Malaysia and Singapore as illustrations. The comparative perspective it offers underscores that whether originalism thrives, and the form it takes, is culturally dependent and context specific.

(Thanks to Seth Barrett Tillman for the pointer).

01/22/2018

Orin Kerr on Fourth Amendment Originalism
Michael Ramsey

At Volokh Conspiracy, Orin Kerr: The Challenge of Fourth Amendment Originalism and the Positive Law Test.  Here is the introduction:

My friend and co-blogger Will Baude argued recently that his Positive Law test of the Fourth Amendment is an originalist approach. I find that position intriguing, in part because it brings up the difficulty of identifying what it means for a view of the Fourth Amendment to be originalist. It seems to me that if the Positive Law test of searches is originalist, then all of my writings on what is a Fourth Amendment search are also originalist, or at least are perfecty consistent with originalism. Indeed, I have a hard time thinking of any proposed Fourth Amendment search tests that aren't consistent with originalism. And most of them seem more plausibly correct from an originalist perspective than the Positive Law test.

That raises an interesting question for a Supreme Court Justice who is a committed originalist: Does the method of originalism provide any guidance in interpreting what is a Fourth Amendment search? The practical answer may be "no," or at least "not all that much." And the Positive Law test seems particularly hard to reach from an originalist perspective. This post will explain why.

I'll leave it to Professor Baude to respond on the "positive law" test.  I have some thoughts on Professor Kerr's broader point, which is that the history does not answer the key questions:

But here's most maddening thing about trying to be a Fourth Amendment originalist. The existing historical materials shed almost no light on the original public meaning of what today is the most important issue, the scope of "searches." (I'll base this discussion in large part on this article, which you should consult if you want more details.) That specific issue didn't come up for a bunch of reasons, among them that there was no independent cause of action for unreasonable searches and seizures. The scope of law enforcement privilege in investigations generally came up as affirmative defenses to liability for other causes of action, such as civil trespass suits (where a proper warrant could justify the trespass of a house search) or a civil suit for false imprisonment (where proper cause could justify an arrest that had seized a person). Given that, it just wasn't necessary to define what counted as a search or seizure. It didn't matter.

And then as now, "searches" can mean a range of things. A search could mean physically breaking into and rummaging through a place. But then it might just mean scrutinizing something closely. Or maybe it means just looking for something from afar. Which of those definitions might have been assumed by the public at the time of the Fourth Amendment's enactment?

Based on my research, I think we just don't know. On one hand, the few cases and the occasional framing-era discussion of the Fourth Amendment involved and referred to physical entry as "searches" and physical removal of property as "seizures." The paradigmatic case of a search was physical intrusion into a home and rummaging through stuff inside, as in cases like Entick. On the other hand, the few data points don't suggest a test or say the level of generality that can answer how far beyond physical entry (if at all) the Fourth Amendment concept of searches should extend. As far as I have been able to discern, at least there just isn't a useful discoverable historical answer to the question.

And further:

It seems to me that to arrive at a test -- to articulate a doctrine for what is a search -- one must adopt a non-originalist method for choosing among these possibilities. Maybe you think a broad test is right. Maybe you think a narrow approach is correct. But the historical materials can't answer the question. To use a football analogy, originalist methods can say that the rule is somewhere in the wide center of the field, say, between the 20 yard lines. But because the needs of modern doctrine demand a test for searches, you need some non-originalist principle to pick it.

As a practical matter, that makes it hard to distinguish originalist and nonoriginalist approaches to articulating a test for what is a search. Among all of the possible search tests, most of the tests I can recall having encountered -- several dozen over the years, I would guess -- are between those 20 yard lines. That is, most approaches could be articulated as being consistent with the originalist approach. When the history doesn't narrow the range, pretty much everything falls within it.

There's substantially more detail and nuance in the post, but this gives the main idea.

Here are my thoughts in response.  I think most originalists would agree with the metaphor of the football field, or some similar description of a spectrum with clearly unconstitutional actions (from an originalist perspective) on one end, clearly constitutional ones on the other, and a grey area of difficulty or indeterminacy in the middle.  The question is, how big is the middle.  Professor Kerr says that for the issues of searches under the Fourth Amendment, it's very big.  

I'm not so sure.  Again, I'm not an expert here, and Professor Kerr is the expert.  But what if we start by saying that police actions that would have given rise to a trespass claim in the eighteenth century, at least if done for investigatory purposes, are searches, and they are unreasonable unless done pursuant to a specific warrant or in hot pursuit of a suspect.  I think there's a good originalist claim for that position.  Then let's say that police actions routinely taken in the eighteenth century without objection (and their equivalents today) are not "searches" -- or, perhaps, are not unreasonable, but in any event are not unconstitutional.

I think that covers quite a bit of the ground.  Among other things, I think it answers the question before the Court in Collins v. Virginia (police come onto Collins' property without a warrant and look under a tarp to see a motorcycle they suspect was used in a crime).  And I think it would cover a good number of others cases the Court has struggled with; the Court's problem is that it has created a series of non-originalist, expediency-based exceptions to the basic rule, and (as in Collins) it's unclear (under non-originalist principles) how far they should extend.

True, my basic rules leave a good bit of grey area in the middle.  In particular, they leave open the question of how to deal with investigatory actions using new technology, which is what people are particularly interested in today.  In those cases, there may be various options, including trying to maintain a balance between privacy and investigatory needs similar to that of the eighteenth century (what Justice Scalia tried to do in Kyllo v. United States, the thermal imaging case); allowing the police to use new technology so long as it does not contravene eighteenth-century trespass rules (the dissent in Kyllo); or seeking some openly non-originalist solution.  But the difficulty in these cases should not lead one to conclude that an originalist approach is generally unhelpful in Fourth Amendment cases.