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Nonconstitutional Adjustments and the Carpenter Case

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.

Reader Discussion

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on December 13, 2017 at 10:04:34 am

Letting SCOTUS reinterpret the Constitution at its whim is a dangerous thing to do. Among many other things, it allowed the punitive individual mandate "fee" to be interpreted as a tax, within the Constitutional power of Congress to enact, despite the clear wording of the Constitution that the only purposes to which taxation may be put are "to pay the Debts and provide for the common Defense and general Welfare of the United States." Not a word in that about punishing people who refuse to cooperate with a violation of the 10th Amendment.

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Henry Miller
on December 13, 2017 at 10:25:07 am

Mike:

OK on private contracts. If the cell companies want to relinquish rights to *their* property - fine.

But, I am still uncomfortable with any Legislature diminishing the property of citizens or corporate persons.
If property be as many classical writers assert "that which is the result of one labor", how is it that I, a simple user of that property may make a valid claim upon the property created by another?

While some may argue that "We" have a property right in our privacy, it stretches both the meaning of the term and the conditions under which said "privacy" is understood.

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gabe
on December 13, 2017 at 12:09:15 pm

Aside from the privacy issue (which I find a great stretch in this instance), (referring back to the original post) is this not about whether or not a search warrant is required (I would say "no") prior to obtaining "bing records" from a third party (phone) service provider? Isn't that the crux here, that Carpenter want's the evidence thrown out due to lack of warrant?

Does the 4th Amendment EVER protect an individual (or corporate entity) from a search where a warrant was obtained?

Does the 4th Amendment say anything about the government's right to conduct warrantless searches that such a rule requiring automatic warrant requirements would imperil? It would seem under an automatic warrant requirement, 4th amendment protections would be satisfied, as well as government's ability to (timely) investigate crimes.

Just how often are warrants denied or how often would the third party contest compliance with the warrant, for government to argue too great a burden?

But, of course, requiring warrants in these types of searches, while protecting both the 4th Amendment, and separation of powers, must be an operation of the Legislative Branch.

Occupying the "10th seat" on the Supreme Court", as I do, my opinion is SCOTUS should deny Carpenter's 4th Amendment claim, but include commentary that if the legislature wishes to extend greater privacy protections in this technologically advanced world of today, and require a warrant in all such similar "techno-info" search cases, there would appear to be no Constitutional barriers to prevent them from doing so - or is there?

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Paul Binotto
on December 13, 2017 at 12:13:19 pm

I tend to agree with your concerns, Mr. Gabe

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Paul Binotto
on December 18, 2017 at 16:13:48 pm

[…] Read more[…] […]

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Nonconstitutional Adjustments and the Carpenter Case – Top 100 Blog Review

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