« Mark David Hall on Andrew Seidel on the Founders and Religion
Michael Ramsey
| Main | Two-and-a-Half Cheers for Baude and Sachs' Positivist Originalism (Part 1)
Will Foster »

08/10/2019

Nicholas Kahn-Fogel: Property, Privacy, and Justice Gorsuch's Expansive Fourth Amendment Originalism
Michael Ramsey

Nicholas Alden Kahn-Fogel (University of Arkansas at Little Rock - William H. Bowen School of Law) has posted Property, Privacy, and Justice Gorsuch's Expansive Fourth Amendment Originalism (43 pages) on SSRN.  Here is the abstract:

In Carpenter v. United States, the Supreme Court reaffirmed the continuing vitality of the privacy framework Katz v. United States established in 1967 for identifying Fourth Amendment searches. Justice Neil Gorsuch, in dissent, critiqued Katz as indeterminate, insufficiently protective, and inconsistent with democratic values. In this article, I analyze Justice Gorsuch’s proposed alternative framework, which he described as the “traditional approach” to determining Fourth Amendment interests. Instead of grappling with the indefinite and textually and historically unfounded “reasonable expectations of privacy” framework of Katz, Gorsuch asserted, this traditional test would require judges to focus on whether a “house, paper, or effect was yours under law.” Although Gorsuch offered preliminary thoughts on this rubric, his opinion left open important questions, including the sources of law to which the Court should look in identifying property interests; the breadth of the definitions of “papers” and “effects” and the kinds of property closely enough associated with the person for potential implication of Fourth Amendment rights; and the ways in which government conduct impinging on such property interests might trigger Fourth Amendment protection. Several passages in Justice Gorsuch’s opinion suggest that he would take a broad, flexible approach to each of these issues. Overall, whatever ambiguities exist in Gorsuch’s dissent, it is certain that his property model would be more expansive than the pre-Katz trespass test that the Court rehabilitated in 2012. If that is the case, however, then the results that courts would be likely to reach under this framework might closely resemble outcomes under a principled privacy-based analysis. Moreover, in situations in which the “traditional approach” fails to protect asserted Fourth Amendment rights, Gorsuch might be willing to rely on Katz despite its shortcomings. Finally, because a broad property rubric would involve a significant degree of judicial discretion, such an approach could negate its own ostensible virtues, such as greater determinacy and democratic legitimacy. Nonetheless, Justice Gorsuch might prefer a flexible “traditional approach” to Katz because its explicit attention to the language of the Fourth Amendment is more conceptually elegant and, at least aesthetically, more consistent with Gorsuch’s originalist sympathies.