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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.