I am quite skeptical whether the President is inherently exempt from statutory restrictions (especially procedural ones) on wiretapping. But the question I want to raise here is about the original meaning of the 4th Amendment.
(BTW, I don't necessarily believe that originalism is the only legitimate form of interpretative analysis, but I do think that it is the place to start, which is why both originalists and nonoriginalists usually start there.)
Being neither an expert in Constitutional law nor an expert in criminal procedure, I wanted to ask our readers and my fellow Volokh Conspirators (particularly Orin, Eugene, Dale, and Randy, who are experts in some or all of these issues) about what research has been done into the original meaning of the 4th Amendment. On its face, it doesn't seem to be a general provision protecting people's privacy from government investigation without a warrant.
The 4th Amendment's text seems much more limited:
The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no warrants shall issue, but upon probable cause, supported by oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.
To a naive reader such as myself, it would seem to contemplate looking at people's writings, homes, and private papers, in other words, their physical property--as well as seizing their body by arrest. For seizing your physical property or your body or breaking into your home to search, a warrant and probable cause is recognized as legally necessary.
Consider that spies were commonly used in the 18th century, at least in military actions. Presumably criminal informers were as well. The 4th Amendment doesn't say that you have to have a warrant to eavesdrop on people's conversations.
Is there any evidence in discussions at the time of drafting it, voting on it, or ratifying it that the 4th Amendment was intended to require warrants when someone wanted to overhear another person talking--which is, after all, a semi-public act that someone can hear without arresting the suspect, physically breaking into his home, or seizing his private papers or other tangible personal property?
Or is there any evidence that the words of the 4th Amendment would mean at the time that eavesdropping and spying were illegal without a warrant? If not, then conversation may not have been intended to be covered.
If so, that would not end the analysis. The argument might arise whether the technological changes in the government's ability to eavesdrop have fundamentally changed the analysis such that eavesdropping was not covered then but must be covered now. Or one might argue that the federal government, being one of limited powers, did not have the power to eavesdrop without a warrant, even if the 4th Amendment does not prevent it.
Or, of course, tradition or US precedent may be thought to mandate something other than the original understanding.
I repeat that I am not claiming that I know what the original meaning of the 4th Amendment was, only that a facial reading gives me some doubt whether surveillance outside of one's home or eavesdropping were intended to require a warrant, and I'm hoping that some expert can tell me what the research tells us on this question.
All Related Posts (on one page) | Some Related Posts:
- NY Times article on NSA wiretapping quotes bloggers.--
- Should We Care About The Reasoning In Judge Taylor's Opinion? :
- Hardly a "Hard-Left" Position:...
- Washington Post Editorial on the NSA Eavesdropping Decision:
- Question About the Original Meaning of 4th Amendment?--
- Lower Court Opinions Are Briefs to Higher Courts:...
- The NSA Eavesdropping Opinion and the First Amendment:
- The NSA Eavesdropping Opinion and the Fourth Amendment:
- Federal District Court Decision Striking Down NSA Eavesdropping Program,