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Originalism, the Fourth Amendment, and New Technology

One of the important issues for originalism is whether it can be applied to new circumstances that were not envisioned at the time of the original Constitution. Perhaps this issue is encountered most often when considering the application of the Fourth Amendment to new technology. In this essay and my next, I explain how these issues can be resolved in theory and as applied to two specific cases: Riley v. California (the search of cell phones when a person is arrested) and Kyllo v U.S. (the use of heat sensors to determine the temperature inside a home—as a means of discovering whether illegal pot is being grown there).

The Fourth Amendment to the Constitution guarantees “the right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures.” But difficult issues arise as to how this Amendment, which was written in a horse-and-buggy world, should be applied to cell phones and other modern technology.

Under the modern interpretation of the Fourth Amendment, which does not apply the original meaning, these issues are largely avoided. In the 1967 case of Katz v. United States, the Supreme Court began the development of a nonoriginalist approach to the Amendment. In that case, the government placed a device on the outside of a phone booth which amplified the sound inside, allowing the government to hear the contents of a call. The Court held the use of the device was a search and Justice Harlan’s concurrence provided the test for this approach. Under that test, the government undertakes a Fourth Amendment search whenever it engages in an activity that interferes with the reasonable expectations of privacy of an individual. Because Harlan believed the individual had a reasonable expectation of privacy during his phone conversation inside the enclosed phone booth, the government had undertaken a Fourth Amendment search.

This test has allowed the Court to address modern technology that was not anticipated by the Framers of the Bill of Rights. The Court simply asks whether an individual had a reasonable expectation of privacy. But this advantage of the test has been purchased at a great cost, since the test is largely a blank check for the Court, which can freely determine based on its own beliefs whether an individual had a reasonable expectation of privacy when engaging in some activity.

The Katz reasonable expectations of privacy test is also problematic, because it does not accord with the Fourth Amendment’s original meaning. As the Court’s two strongest originalists—Justices Thomas and Gorsuch—recently said in the case of U.S. v. Carpenter, the test is inconsistent in various ways with the original meaning. Perhaps most importantly, the test asks whether something is a search based on whether there is a reasonable expectation of privacy as to the matter. By contrast, the Fourth Amendment applies to searches (defined independently of their reasonableness) of persons, houses, papers and effects, and then only bars such searches if they are unreasonable.

In the Riley and Kyllo cases, the Supreme Court applied the Katz test and was able to reach sensible results. But because the Court employed the Katz test rather than the original meaning, one might wonder whether the original meaning could really be applied to this new technology.

To answer this question, let me start by discussing what I believe the Fourth Amendment’s original meaning is. Then, in my next essay, I will discuss how that might be applied in these two cases.

While Katz defines a search as any interference with the reasonable expectations of privacy of a person, the original meaning is different. As Justice Thomas’s dissent in Carpenter indicated, the original meaning of search seems to be the ordinary meaning at the time of “looking over or through” or “examining by inspection.” And the original meaning only covers searches of “persons, houses, papers, and effects.” But a key provision of the text is that it prohibits “unreasonable searches.” What does that mean? Many people have assumed that this language left the concept of reasonableness unclear and therefore amounts to a delegation to future judges.

But while the text—in the abstract—might seem like it could have that meaning, Laura Donahue has persuasively argued that an “unreasonable search” is a search that conflicts with the “reason of the common law.” In other words, searches that violate the common law rules for searches at the time of the Fourth Amendment are unreasonable searches. Thus, the Fourth Amendment incorporated the common law rules at the time and it did so with the language of “unreasonable searches.”

While this insight is extremely helpful, outstanding questions still remain. One question is whether this simply means that the Fourth Amendment adopts a constitutional common law approach, where the Court can decide what violates the Constitution based on evolving values over time. If that is the case, the Katz approach might not seem so problematic.

But that is not how the Fourth Amendment is properly interpreted. While the Fourth Amendment constitutionalizes the common law right, that does not mean it allows the Court to determine the content of this right by freely applying the common law method. If that were the case, the content of the right might change if there were a change in values or practices. The Amendment would then have constitutionalized a possibly evolving right. Instead, the Fourth Amendment adopts what the common law right was at the time of the Fourth Amendment and constitutionalizes that. The Amendment freezes the right as of the time of the Fourth Amendment.

If the Amendment were not interpreted as freezing the right, it would have a peculiar result. It would not assure the people that the right would protect them as strongly as it traditionally did under common law. Moreover, it would allow the Court extremely ample discretion. Traditional common law rights could be changed by ordinary statutes. But if the Fourth Amendment were not understood as freezing the right, a constitutional amendment would be required to change the common law as developed by the Supreme Court.

While interpreting the Amendment to freeze the right avoids these peculiar results, this still leaves an important question: What happens if there is uncertainty about the content of the right? For example, what if there were conflicting precedents or there were matters that were not addressed by the existing precedents? Here one must figure out what the common law right was as to these matters.

To determine the content of the common law right in such unclear cases, one must put oneself in the position of a common law judge at the time. Thus, one must engage in common law reasoning by considering court precedents, societal practices, and values of the people. That, after all, is how one determines the content of a common law right.

But to ensure that one is actually determining the content of the frozen common law right (rather than updating that common law right to take into account modern values), the interpreter must decide the case based on the precedents, practices, and values at the time of the Amendment. For example, if new values emerged 50 years after the Constitution was enacted, those values would not be legitimately considered by the interpreter when determining the content of the common law right.

This approach could be used to decide cases involving new technology. Since such technology did not exist at the time of the Constitution, the historical common law right did not specifically address it. In some cases, though, the new technology would seem to be unambiguously covered by the right. But in other cases, it might not. In these latter cases, determining the content of the right would require the use of common law reasoning. It would require the judge to determine how a common law judge at the time would have decided the case, given the values and circumstances at the time. This decision procedure is a way of determining the content of a frozen common law right when the content of that right is unclear.

In the case of modern technology, it might seem artificial to imagine how judges at the time of the Constitution would decide the case as applied to, for example cell phones. But as I argue in my next essay, there need not be anything problematic about this decision. While there may be hard cases, there will also be easy cases, as with any area of the law.

Reader Discussion

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on December 06, 2019 at 10:29:23 am

Hmmm!
"Over the river and through the weeds to the ivory tower we go."

Glad to see some elevation of the ancient common law as a source of constitutional reasoning rather than what we mostly have in ambiguous cases, a Supreme Court-made common law based on a 5-4 ideological split.

But whose common law, Blackstone's English common law, well known to the lawyer- founders, or that of the often-deviating colonial practitioners?

And so as truly to interpret a "frozen" Fourth Amendment right must Scotus Justices don Rumpol of the Bailey wigs with their black robes and carry out the play acting necessary to "...put oneself in the position of a common law judge at the time?"

She frightens me with her words so much that the sight of a powdered-wig Sotomayor is more than I care to imagine.

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Fustigate Plumply
on December 06, 2019 at 12:38:08 pm

Any evidence that the Framers used the phrase "unreasonable searches" with an understanding that, in addition to incorporating the common law as it existed in 1787, it was designed to permit for future developments as to what constitutes a paper & effect, as well as how a "search" could possibly take place?

In other words, the Framers had no intent of freezing the meaning of "unreasonable searches" to 1787 common law categories?

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Paul
on December 06, 2019 at 13:05:58 pm

"...the Framers had no intent of freezing the meaning of “unreasonable searches” to 1787 common law categories?"

Such a claim is neither inherent in the text nor obvious from a) history and b) clearly not from the above essay.

Rather, it may be more appropriate to state that the use of the phrase "unreasonable" searches has had the effect (and, perhaps, not a salutary effect) of permitting such updating, whether properly reasoned or improperly "divined" by the Black Robes. There is nothing in the text or the proceedings of the Convention to indicate that the Crafters "crafted" anything with a clear intent to allow updating / amplification, etc other than Article V.

BTW: comes news today that two documentary filmmaking groups (why, oh, why these characters?) are suing the Department of State for its proposed policy of "reviewing" the social media accounts of prospective immigrants.
I am certain some jurist will divine the potential, if not actual evil involved in performing due diligence on our prospective neighbors. Clearly, it is unreasonable to ferret out those that harbor ill-will toward us. The Black Robes have told us so.

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gabe
on December 06, 2019 at 14:11:06 pm

It has always struck me that many of the so-called "reasonable" expectations of privacy are really just ignorant expectations of privacy. Home portable and mobile phones broadcast their signals to the world (albeit now often encrypted), public spaces like phone booths may be subject to monitoring by others, and hot places radiate IR and only the ignorant could reasonably assume those things will remain private. We can add statutory protections for some of those things, but we shouldn't otherwise "reasonably" expect privacy when the technology clearly works otherwise.

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Tom Donahue
on December 06, 2019 at 14:16:42 pm

"For example, if new values emerged 50 years after the Constitution was enacted, those values would not be legitimately considered by the interpreter when determining the content of the common law right."

Yes, but if we're talking about the 14th Amendment's incorporation of the bill of rights against the states, doesn't that mean the 1868 version of the bill of rights that's incorporated against the states, and not the 1791 version. which only applies to the federal government?

For instance, the bill of rights (like the right to vote) might've originally only applied to straight white males, but the 14th Amendment ensures that the bill of rights now applies to everyone--which means the terms of the bill of rights are defined by all people's values (in 1791), not just straight white men's values (in 1791).

So a search that might've been reasonable in 1791 because men thought it was reasonable, isn't reasonable in 1868 because women never thought it was reasonable and their voice now counts towards the definition of reasonable because the amendment now protects them equally. For instance, the majority of men might not find strip-searches degrading, but since women do and women's definition of unreasonable is not part of the fourth amendment, strip-searches are now unconstitutional--or at least without a warrant.

Or as another example, white men might not think that rap music (or violent video games ) is protected under the first amendment because they consider it a true threat or brain-washing or something, but black people would've thought it was protected in 1791 had they been asked and understood the question, and since blacks now get to help define the amendments, rap music is now protected.

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Val Ues
on December 06, 2019 at 15:40:53 pm

"Or as another example, white men might not think that rap music (or violent video games ) is protected under the first amendment because they consider it a true threat or brain-washing or something, but black people would’ve thought it was protected in 1791 had they been asked and understood the question, and since blacks now get to help define the amendments, rap music is now protected."

One wonders if black people in 1791 would have approved of rap-music and consequently would have thought it was entitled to protection. I think such a statement presumes more than it acknowledges. Heck, black people from the 1950's and 1960's did not approve of it as many of my friends will attest.

So why is it that you assume that black people would always have like rap music? Are they not also capable of evolving tastes or do you think that they must and / or have always loved rap music?

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Guttenburgs Press and Brewery
on December 06, 2019 at 16:57:57 pm

Interesting discussion, as always. There is, of course, another option: while not originalism, it is original:

The conflicted judge may simply choose to follow the approach taken by another, U.S. District Judge William Orrick III, in PPFA v Center for Medical Progress, and simply preclude the jury from considering the applicable Constitutional Amendment in its deliberations.

This doe nothing to settle the Constitutional question, but it all but guarantees the desired outcome.

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Paul Binotto
on December 06, 2019 at 17:34:53 pm

Most of these replies, including most of my initial reply: ( e.g., “Over the river and through the weeds to the ivory tower we go." and my reference to Rumpole of the Bailey and Sotomayor's powdered wig) deteriorate, more or less, into black humor (no micro-aggression intended, 'though I do not care for rap music,) which illustrates the point of my sarcasm: that this kind of pin-headed, micro-dissecting of Originalism is of no value to practicing lawyers, including judges. It is of interest to that cottage industry of LawProfs who make a career of such stuff.

To paraphrase Lincoln, "Of those who do that kind of stuff it can be said that that is the kind of stuff they do."

Sorry for that sentiment. I just wish Originalist scholars would do more to advance OUR cause and less of that which makes the cause look silly.

Too often they are to the cause of Originalism what Establishment Republicans are to the cause of conservatism.

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Fustigate Plumply
on December 06, 2019 at 19:39:46 pm

Fustigate: This does help "our" cause. The reputation of originalism among law professors and lawyers is extremely important and its reputation turns on it being able to provide convincing answers to difficult questions. While most people may not be aware of these issues, that does not mean it does not affect them.

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Mike Rappaport
on December 06, 2019 at 20:35:02 pm

Hear, hear! All practice has theory as its basis, whether it be Originalism or Origami. Besides, Prof. Rappaport at least deserves a change to present Part II before judging him a pin-headed micro-dissector...I for one, look forward II it.

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Paul C Binotto
on December 06, 2019 at 20:36:23 pm

"chance" not "change", of course.

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Paul C Binotto
on December 06, 2019 at 20:58:53 pm

Thanks for your answer.
Your assertions as to "reputation," "convincing answers," "difficult questions" and their link to "our cause" employ ambiguous, open-ended terms not amenable to clarification here and are wholly self-serving. So, on their face they may not answer my objections about originalism hair-splitting, needless complexity as to constitutionally material matters and the practical value in court of such intellectualizing.

But I understand your assertions and your conclusion and think your forthrightness is valuable.
Based on your expertise and your stellar reputation among the faithful you warrant the benefit (not that it matters) of my doubt. I apologize for what, on second thought, was the use of more ad hominem than reason.

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Fustigate Plumply
on December 07, 2019 at 20:04:59 pm

I respectfully dissent.

I think that a more useful concept of originalism inquires not into original meanings, but into original rationales. There should be some relationship between the two, but there is not enough to resolve the concerns cited by Professor Rappaport.

Assessing original rationale (even though Justice Thomas appears to pooh-pooh the concept in his dissent in Carpenter</i?) has several advantages. The first is that meanings can change but rationales ordinarily do not. The concept of what was referred to as a navy has changed significantly since the Constitution was ratified, but the rationale for having a navy has not. Thus, the nature of a navy could change, to include, for example, aviation and nuclear submarines, without requiring amendment of Congress's ability to provide for them. Also, it is possible to use whatever words accurately convey the underlying rationale of a Constitutional provision without requiring the creation of a term of art, for example as the Katz Court did with the word "search."

The reference to the English common law will serve as a convenient point at which to begin the inquiry. Why did the common law develop rules for searches? What was the interest to be protected and the rationale for protecting it? I would submit that the rationale for doing so is:

A person must have some measure of control over information about him in order to function in society such that both the person and society may benefit.

A person's usefulness to himself and his interests, as well as to the larger society, are affected by his reputation, and ability to discourage the proliferation of half-truths or falsehoods that may impair it. Furthermore, a measure of such control is necessary to such concepts as modesty and dignity. Note whose control is protected.

Now here is why I think that original rationale is more important than original meaning: The proper evaluation of a continuing government is not found in its relationships to the government at a different time, but in its relationship to the governed at all times. As Gabe likes to point out, much mischief derives from the judiciary ("the black robes") changing meanings to suit subjectively desired outcomes. Meanings are determined by the government, but rationales are supposedly derived from the interests of the people. This, in my opinion is crucial. It is the difference between conceiving the Constitution as creating rights (and this entrusting the government with deciding when and where they will be respected), and the Constitution simply recognizing that rights preceded its adoption and the people chose to withhold the government's ability to infringe them.

If you look at the rationale for the fourth amendment stated above, it refers to a person's measure of control, not the government's. This applies to both disclosures of information and keeping it private. Justice Thomas's dissent in Carpenter notes that the Court previously dismissed the notion that rights themselves may be violated as long as the purposes of those rights were served to some minimally acceptable degree. He referenced United States v. Gonzalez-Lopez in which Scalia made a similar comment. But what Scalia actually conveyed, specifically in the contexts of representation by counsel and with reference to the confrontation clause, is that the people have the prerogative to defend the rationales underlying their rights. The government may not violate an express right by denying the people the right to defend it, then excuse such violation by unilaterally deciding that lip service to the rationale suffices. What the Gonzalez-Lopez case held was that the relationship between the government and the people controlled, not some innovation that changed the operation of government from one point in time to another. What really matters is whether the individual citizen retains the ability to vindicate the interests protected by rights and against the government, or whether the government may decide that it's actions are "close enough."

Using this approach, novel technologies present no problem. We need not consider nuanced definitions of "search," or inquire into subjective expectations of privacy or reasonableness of such expectations. "Search" may be taken to mean the process of acquiring information. No other qualification is necessary. The inquiry as to reasonableness applies to the government's rationale in conducting the search. The reason obviously must support issuance of a warrant. Whether or not a warrant is needed, such as in the thermal imaging case, depends on the accessibility of the information to a hypothetical member of the public, and thus deals with the "third party disclosure" problem. If a random member of the public cannot get someone's bank records, for example, then the government needs a warrant to do so.

That's the way I see it.

But hell, I could be wrong.

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z9z99
on December 07, 2019 at 22:11:49 pm

Good discussion, Z; interesting approach.

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Paul C. Binotto
on December 08, 2019 at 03:23:37 am

But the original rationale can only be divined after you have the original meaning.

If you don't know what religion means--if you have no concept of a religion or religious practice or religious community--then you can not begin to imagine what the rationale for protecting freedom of religion could be.

It is only because you understand what a search is--like a strip search-- (and a seizure--like an arrest) that you can imagine the rationale for it being unreasonable and requiring a warrant, or being downright cruel due to being traumatic (like with a minor) and be unconstitutional even with a warrant.

Or what the word 'substantive' means in the phrase "deprive any person of life, liberty, or property, without due process of law". If you can't see the word "substantive" in that phrase and divine its original meaning, you can't begin to guess at the rationale for having the word "substantive" in their to begin with.

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Santa Mystery-Claus
on December 08, 2019 at 10:27:16 am

"Or what the word ‘substantive’ means in the phrase “deprive any person of life, liberty, or property, without due process of law”. If you can’t see the word “substantive” in that phrase and divine its original meaning, you can’t begin to guess at the rationale for having the word “substantive” in their to begin with."

Now that is *snark* to be proud of!

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Guttenburgs Press and Brewery
on December 08, 2019 at 16:30:19 pm

But the original rationale can only be divined after you have the original meaning.

I think it is interesting to consider why this is not true. Logically, it is a form of false dilemma: either you know the original meaning or you know nothing. This is illustrated in the phrase used in the second paragraph:

"if you have no concept of a religion or religious practice or religious community–then you can not begin to imagine what the rationale for protecting freedom of religion could be."

It is in fact quite possible to have some idea of religion and be able to infer the underlying rationale without resort to the precise meaning at the time the Constitution was drafted. Even if the modern meaning of a word differs in some way from its common usage in the 18th century, it may still form the basis of an inquiry into why something was treated a particular way in common law. It is not strictly necessary to understand the precise meaning of a word at an intermediate point in time. It does not matter for instance, if "religion" meant organized religion, or religious belief, or spirituality, or something else. A modern sense of the word "religion" is sufficient to inquire as to why any or all such concepts might be constitutionally protected, i.e. what was the rationale for including any concept of religion at all. Similarly, it does not really matter if "well regulated" as used in the Second Amendment means "in good working order" or "efficiently organized" to inquire into the rationale for allowing citizens to keep and bear arms.

There is no attempt to argue that original meaning is irrelevant, or that if the original meaning is known, that it should not be given great deference. However, the notion that possession of the original meaning is not strictly necessary to ascertain the rationale behind a particular Constitutional provision is neatly illustrated by Justice Thomas's dissent in Carpenter. He admits that he does not know why Madison's original use of the words "other property" was changed to "effects," and consequently does not know the original meaning of "effects." He does not know if the change meant that the Amendment did not apply to real property other than houses, or applies to commercial goods or both. We don't know the original meaning of the word "effects," but this does not preclude us from inquiring into the rationale underlying the Fourth Amendment.

As an aside, in my original post I noted that the government cannot excuse the violation of rights by alleging that it, the government, has assumed responsibility for protecting the underlying rationale so the rights protecting it are superfluous ( a totalitarian fantasy). Chief Justice Roberts, in Riley v. California said more or less the same thing, quite succinctly: "...the Founders did not fight a revolution to gain the right to government agency protocols."

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z9z99
on December 08, 2019 at 17:01:20 pm

Z:

I suspected that "Mystery Claus[e] was being snarky with some of his commentary.

Let me applaud you for an *elegant* (as in an efficient / durable engineering solution) in both of your comments.
Stated far better than my simple past assertions that the "Crafters addresses real problems" and that they intended to so structure a government as to continue to resolve or prevent those problems. As Roberts intuited in your quoted comment, the Crafters could not be expected to completely ignore the very real problems that caused them to lead a revolution. To believe that COTUS was simply *drafted* without a regard to the problems they experienced and ultimately led to revolt and the formation of a government designed to prevent similar abuses of liberty is to confess to a) historical ignorance or b) the far greater sin of historical disdain. This latter attitude is, to my mind, rather prevalent amongst the Black Robes who guided by their ignorance arrogate to themselves the authoprity to redefine text and structure.
This is of course made easy by their unwillingness to examine the historical antecedents, the contemporaneous conditions / practices of both the oppressors, the Brits, and the oppressed, the Colonists, and the (at times) quite clearly stated rationale of the Crafters.

Were the Black Robes to attempt to comprehend, heck even apprehend, the rationale(s) for COTUS's clauses and structure, they might well be compelled to actually review "history" This, of course, may be far too intimidating for them, as any honest review of the historical problems, reactions and rationales may vitiate their own presumptive understandings / interpretations of not only COTUS' text / clauses but also their conception of what the American regime was, is and was intended to be.
I suspect that this may swerve as a brake on the otherwise fanciful divinations / and determinations and the consequent impositions of our Black Robed Brethren.

Anyway, again - an "elegant" proposal.

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gabe
on December 08, 2019 at 18:03:43 pm

Mr. Gabe,

I would quite agree that, "B) the far greater sin of historical disdain," is the prevailing attitude; and that it is precisely an understanding of history that compels their distain.

It's true, to not know history, is to risk repeating it. But, for Progressive jurisprudence, it's equally true that, to know history is also to know precedence will override a present desire to override it (precedence). So originalism, its meaning and its rationale must be rejected.

For instance, the rule of (Super-) precedence that is so vehemently defended as vindicating Roe, is the same precedence that had to be rejected to arrive at Roe.

I only half-joking raised the issue above of, "U.S. District Judge William Orrick III, in PPFA v Center for Medical Progress, simply preclude[ing] the jury from considering the applicable Constitutional Amendment in its deliberations, as a means to avoid the certainty contained in the precedence of the 1st Amendment; a precedence, I might add, so cemented in American jurisprudence and culture, that even the most untutored juror can recognize it.

This is judicial activism at its ugliest, and I do hope (expect) it will be remedied, sanctioned in the end; and just the latest illustration where not only disconnection, but distain, for the original document can arrive us at. Another real danger, should such a move be allowed to stand, is that, because the Judge was so bold to take it, many will conclude legally, constitutionally, he was justified in doing so - and, there we arrive at what Z eloquently describes as, "the right to government agency protocols," very nearly what the Revolution was fought to break away from; very certainly, the greater tyranny.

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Paul C. Binotto
on December 08, 2019 at 18:40:46 pm

"It is in fact quite possible to have some idea of religion and be able to infer the underlying rationale without resort to the precise meaning at the time the Constitution was drafted."

Yes, that's why it's called "original meaning textualism" and not "precise-original meaning textualism".

You don't need to know exactly how each and every person at the founding referred to religion, religious practice, religious ceremony, etc., but if you have no idea how anyone referred to those things, than you'll have no idea what the rationale could've been.

If you grew up in San Francisco and think "religion" means "bigotry" or "science-denial" rather than say "honest, genuine faith that gives life meaning and purpose during times of hardship and loss", you'll never understand why someone would want to believe or practice a religion scorned by the majority--you'll never understand why intellectuals find religious tolerance to be a virtue, rather than a weakness and threat to majoritarianism.

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Grinch Christmas-Stealer
on December 09, 2019 at 00:37:33 am

Gabe and Paul,

Thanks for the thoughts.

I suspected that “Mystery Claus[e] was being snarky with some of his commentary.

Yeah, I gathered that from the use of the word "divined," which means "to discover by guessing or intuition" to describe the method of analysis, as well as the comment regarding the word "substantive" and the Due Process Clause. Still, I thought the sentence was worth discussing because it does contain a substantive assertion. This is a complex topic with a lot to think about.

I can somewhat sympathize with Justice Thomas's suspicion of "underlying purposes." In a footnote to his dissent in Carpenter he notes that Justice Brandeis found a privacy right in the Fourth Amendment because the Framers "recognized the significance of man's spiritual nature, of his feelings and of his intellect," and "sought to protect Americans in their beliefs, their thoughts, their emotions and their sensations." The first quote bears a remarkable structural resemblance to Justice Kennedy's new-agey musing in Planned Parenthood v. Casey, which Kennedy thought so highly of he quoted it again in Lawrence v. Texas. This observation though is not a rationale for a particular Constitutional right, except to the extent that it is a rationale for all of them. I doubt that there is a serious argument that there is a Constitutional protection for "feelings." Nor is the second quote a rationale, at least not a foundational one. The Framers may have indeed "sought to protect Americans in their beliefs, their thoughts, their emotions and their sensations," but this is derivative of other rationales. Why did these things deserve protection? It is not only because man's spiritual nature, feelings and intellect are "significant," but because privacy is practical. This illustrates the main point here. Thomas is right to be suspicious of gaseous, metaphysical musings that can conceivably be used to find a Constitutional right to just about anything. However, a more diligent inquiry will demonstrate that the Framers were more careful and practical than that.

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z9z99
on December 09, 2019 at 13:15:22 pm

We have been admonished to refrain from criticizing Rappaport's two-part analysis of how to restore original meaning to the Fourth Amendment until such time as he releases part two. So I am waiting dubiously.

Meanwhile, I have raised general questions as to the judicial value of the cottage industry (which I think) LawProfs have made of micro-analytical intellectualizing of the endeavor to divine original meaning. Rappaport's theory of how to ascertain the Fourth Amendment's original meaning in difficult high-tech cases is for SCOTUS to freeze the Amendment's meaning (judicial cryogenics) and then assume the mindset of 18th century common law English jurists (judicial playacting) so as to unearth what the founder's meant when they wrote what they wrote and ratified (judicial archeology.)
Critics herein have suggested that, rather than going down such professorial rabbit holes and rather than fret over how to accomplish the very difficult (if not impossible) multi-tasking of such an originalism endeavor, SCOTUS might better forego its angst over discovering the hidden meaning of the Fourth Amendment's text and look simply at its "rationale," which purportedly is more empirically-available than "meaning.'' That approach is said to differ from "purposivism," (as to which Breyer wrote a book,) purposivism being the mortal enemy of originalism. It does have the virtue of simplicity.

Rappaport, otherwise so quick in reply to defend (what I called) his "cottage industry," has so far not replied. Perhaps part two of his freezing theory (or is it just an idea?) will address the "rationale" matter.

In the one reply to criticism which Rappaport did offer he maintains that it is necessary for the lawprofs to engage in such academic (what I call impractical intellectualizing) activities in order to protect the “reputation" in the academy of the "cause" of originalism by providing “convincing answers” to “difficult questions." My further questions are: 1) "answers" to whom ?(surely not the Justices, the only audience that matters,) 2) "difficult questions" for whom? (surely not 5 of the Justices,) 3) is such a complex, multi-tasking endeavor as his "freeze and play act" proposal really "convincing"and if so, to whom? and 4) is not intellectual simplicity, rather than aggravating complexity, a better political goal, a better path to judicial consensus if one hopes to win the hearts and minds of five of the Justices?

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Fustigate Plumply
on December 13, 2019 at 05:57:04 am

[…] In a prior essay, I noted that the Fourth Amendment to the Constitution guarantees “the right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures.” Unfortunately, the Supreme Court has followed neither the text nor the original meaning of the Amendment. In Katz v. United States, the Court held that whether a government action constitutes a search depends on whether it interferes with a reasonable expectation of privacy of an individual. But the Amendment does not speak about privacy or define searches by reasonable expectations of privacy. […]

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Image of Applying the Fourth Amendment’s Original Meaning to Cell Phones and Heat Sensors
Applying the Fourth Amendment’s Original Meaning to Cell Phones and Heat Sensors
on January 02, 2020 at 08:40:46 am

[…] In a prior essay, I noted that the Fourth Amendment to the Constitution guarantees “the right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures.” Unfortunately, the Supreme Court has followed neither the text nor the original meaning of the Amendment. In Katz v. United States, the Court held that whether a government action constitutes a search depends on whether it interferes with a reasonable expectation of privacy of an individual. But the Amendment does not speak about privacy or define searches by reasonable expectations of privacy. […]

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Image of Applying the Fourth Amendment’s Original Meaning to Cell Phones and Heat Sensors – Building Blocks for Liberty
Applying the Fourth Amendment’s Original Meaning to Cell Phones and Heat Sensors – Building Blocks for Liberty
on March 12, 2020 at 08:25:57 am

[…] In a prior essay, I noted that the Fourth Amendment to the Constitution guarantees “the right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures.” Unfortunately, the Supreme Court has followed neither the text nor the original meaning of the Amendment. In Katz v. United States, the Court held that whether a government action constitutes a search depends on whether it interferes with a reasonable expectation of privacy of an individual. But the Amendment does not speak about privacy or define searches by reasonable expectations of privacy. […]

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Image of Applying the Fourth Amendment’s Original Meaning to Cell Phones and Heat Sensors | GOVfeasance
Applying the Fourth Amendment’s Original Meaning to Cell Phones and Heat Sensors | GOVfeasance
on March 17, 2020 at 21:21:25 pm

Excellent article

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Paladin
on March 17, 2020 at 21:22:34 pm

where are the reader comments?

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Paladin

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