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01/21/2019

Jeffrey Bellin: Fourth Amendment Textualism
Michael Ramsey

Jeffrey Bellin (William & Mary Law School) has posted Fourth Amendment Textualism on SSRN.  Here is the abstract:

The Supreme Court’s inability to coherently define the term “search” plagues its Fourth Amendment jurisprudence. Even the Justices know they have a problem. Recent opinions only half-heartedly apply the controlling “reasonable expectation of privacy” test and its reviled cousin, “third-party doctrine,” with a few Justices in open revolt. 

These fissures hint at the Court’s openness to a new approach. Unfortunately, no viable alternatives appear on the horizon. The Justices themselves offer little in the way of a replacement. And scholars’ proposals exhibit the same complexity, subjectivity, and illegitimacy that pervades the status quo.

This Article proposes a shift toward simplicity. Buried underneath the doctrinal complexity of the past fifty years is a straightforward constitutional directive. A simple three-part formula, derived from the constitutional text, deftly solves the Fourth Amendment “search” conundrums that continue to beguile the Court. This textualist approach offers clarity and legitimacy, both long missing from “search” jurisprudence. And by generating predictable and sensible answers, the proposed framework establishes clear boundaries for police investigation, while incentivizing legislators to add additional privacy protections where needed.

Via Larry Solum at Legal Theory Blog, who comments:

By "textualism," the author means to refer to the so-called "new textualism" associated with James Ryan.  It is unclear to me how constitutional new textualism is conceptually distinct from originalism.

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