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Originalism and the Fourth Amendment:
In response to Jim's post below, surprisingly little of relevance is known about the original purpose of the Fourth Amendment. There was no policing at the time of the Framing, at least as we conceive of it today, and the Framers were mostly thinking about limiting particular types of very broad warrants that the King had permitted to search physical places and things. In any event, the Supreme Court wrestled with the issues that Jim raises below in three major cases: Olmstead v. United States (1928), Berger v. New York (1967), and Katz v. United States (1967). The gist of the cases (to really really oversimplify matters) is that Jim's argument had five votes in Olmstead, but became a minority view by the time of Berger and Katz.

  Indeed, Jim's argument sounds a lot like Justice Black's solo dissent from Berger. An excerpt:
    Eavesdroppers have always been deemed competent witnesses in English and American courts. The main test of admissibility has been relevance and first-hand knowledge, not by whom or by what method proffered evidence was obtained. It is true that, in England, people who obtained evidence by unlawful means were held liable in damages, as in Entick v. Carrington, 19 How.St.Tr. 1029. But even that famous civil liberties case made no departure from the traditional common law rule that relevant evidence is admissible even though obtained contrary to ethics, morals, or law. And, for reasons that follow, this evidentiary rule is well adapted to our Government, set up as it was to "insure domestic tranquility" under a system of laws. * * *
  While the electronic eavesdropping here bears some analogy to the problems with which the Fourth Amendment is concerned, I am by no means satisfied that the Amendment controls the constitutionality of such eaves-dropping. As pointed out, the Amendment only bans searches and seizures of "persons, houses, papers, and effects." This literal language imports tangible things, and it would require an expansion of the language used by the framers, in the interest of "privacy" or some equally vague judge-made goal, to hold that it applies to the spoken word. It simply requires an imaginative transformation of the English language to say that conversations can be searched and words seized.
  Interestingly, none of the current Justices seem to be interested in returning to Justice Black's approach. Occasional originalist Justice Scalia has written opinions that suggest an interest in creating new rules that capture the original role of the Fourth Amendment in light of technological change — see, for example, his opinion in Kyllo v. United States — but I don't think there are any votes on the current Court for Justice Black's approach.
Medis:
This reminds me of conversations about whether radio, television, or now internet news sources can be considered part of the "press" for First Amendment purposes, seeing as how they don't actually "press" ink letters onto paper.
8.18.2006 12:28am
David Walser:
This literal language imports tangible things, and it would require an expansion of the language used by the framers, in the interest of "privacy" or some equally vague judge-made goal, to hold that it applies to the spoken word.

Wait a minute! Is Justice Black saying there is no right to privacy in the Constitution?
8.18.2006 12:35am
James Lindgren (mail):
Thanks, Orin, that's exactly what I was asking.

As commenters to my post asked, I wonder whether letters in transit--esp. letters in transit to foreign countries--were liable to search without a warrant.

Jim Lindgren
8.18.2006 12:59am
Richard Bellamy (mail):
While I am not a devotee of Robert Bork when it comes to legal principles, he generally does a good job of getting his facts rights. The following is from his "Neutral Principles", and while it is directed at the First Amendment, is obviously and explicitly generalizable to the other Nine.

"The first amendment, like the rest of the Bill of Rights, appears to have been a hastily drafted document uon which little thought was expended. One reason, as Levy shows, is that the Anti-Federalists complained of the absence of a Bill of Rights less because they cared for individual freedoms than as a tactic to defeat the Constitution. The Federalists promised to submit one in order to get the Constitution ratified. The Bill of Rights was then drafted by Federalists, who had opposed it from the beginning; the Anti-Federalists, who were really more interested in preserving the rights of state governments against federal power, had by that time lost interest in the subject."

Thus, in response to both the original post by Jim, and Orin's statement that "surprisingly little is known about the original purpose of the Fourth Amendment," it seems like the original meaning of the entire Bill of Rights is to make the statement, "We have drafted a Bill of Rights". In an era of constitutional interpretation, with volumes written about miniscule little clauses, it might be worthwhile to step back and realize that, to the drafters, what the Bill of Rights "meant" probably wasn't very important at all.

And therefore, parsing whether the First Amendment is "absolute", or whether "a well regulated militia" means anything, or what the Ninth Amendment is doing there, while in some ways interesting, and a nice canvas for theorizing and speculating, is always intrinsically doomed. The honest truth is that the whole lot of the Bill of Rights reads like a first draft that would get a "D" in legislative drafting class -- dangling modifiers, unclear references, and unidentified rights.

So, while I am agnostic about when and how to use "originalism", I think that the answer has to be "a lot less than otherwise when discussing the Bill of Rights."
8.18.2006 1:08am
Ploni:
Richard Bellamy: Justice Scalia, in his book on originalism, has adequately responded to your argument. The bill of rights should be interpeted on the basis of the way the public at the time of ratification would have been most likely to interpet their meaning, and the original "intent" of the framers isn't important at all.
8.18.2006 1:23am
Medis:
Pioni,

But how do we know the ratifiers took it to mean much more than "We have ratified a Bill of Rights"?
8.18.2006 1:49am
nooner (mail) (www):
David McCulloch, in his book John Adams, discusses a criminal Adams defended during colonial times. Redcoats stormed the individual's home and gathered evidence of a crime. Adams argued to George III's judge that the soldiers violated natural law to obtain the evidence--a man's home is his castle--and thus the defendant should be set free. He won.

I recall that some of the language in Adams's argument was quite similar to language in the 4th Amendment. Unfortunately, I borrowed the book when I read it, so I don't have a direct citation.
8.18.2006 9:42am
Richard Bellamy (mail):

The bill of rights should be interpeted on the basis of the way the public at the time of ratification would have been most likely to interpet their meaning,


If the statute is somewhat clear, I could go along with that. In the case of the Constitution, however, it is pretty obvious that people read into it whatever they wanted, and framed their arguments accordingly. The Bill of Rights is not (and has never been)read as a statute -- it has been a Rorschach.

Most today get their Constitutional "originalism" from the Federalist Papers, but they were only half of the debate. Read "The Powers and Potentials of His Elected Majesty" or "A Consolidated Government is a Tyranny" instead, and it would look like those who voted for the Constitution were trying to replace a democracy with a Monarchy. An alternate history in which Thomas Jefferson wins the first election and immediately crowns himself "King Thom I" would not be without the Constitution's equivalent of legislative history, or original understandings of the text, backing it up.

I re-affirm that focusing on either "Original Intent" or "Original Meaning" is misguided, as it is less than clear that the Bill or Rights "intended" or "meant" anything beyond the fact of its existence.
8.18.2006 10:53am
Third Party Beneficiary (mail):
"This literal language imports tangible things, and it would require an expansion of the language used by the framers, in the interest of 'privacy' or some equally vague judge-made goal, to hold that it applies to the spoken word. It simply requires an imaginative transformation of the English language to say that conversations can be searched and words seized."

But isn't Black ignoring here that the Fifth Amendment protection against self-incrimination used to be far stronger? It would seem that some part of that protection has been relocated into the Fourth Amendment.
8.18.2006 12:03pm
msk (mail):
What about shadow puppets projected on a wall where they might be witnessed through an undraped window by anyone cutting through the side yard?

Electronic devices are not an angelic class of perfect truth tellers. Electronic surveillance is susceptible to premeditated fakery, or may simply be unable to witness everything happening (off camera, off mike).
8.18.2006 4:10pm
Bruce:
I've always thought Justice Brandeis's dissent in Olmstead was a prescient response to the "persons, houses, papers, and effects" argument:

'[I]n the application of a Constitution, our contemplation cannot be only of what has been, but of what may be.' The progress of science in furnishing the government with means of espionage is not likely to stop with wire tapping. Ways may some day be developed by which the government, without removing papers from secret drawers, can reproduce them in court, and by which it will be enabled to expose to a jury the most intimate occurrences of the home. Advances in the psychic and related sciences may bring means of exploring unexpressed beliefs, thoughts and emotions. 'That places the liberty of every man in the hands of every petty officer' was said by James Otis of much lesser intrusions than these. To Lord Camden a far slighter intrusion seemed 'subversive of all the comforts of society.' Can it be that the Constitution affords no protection against such invasions of individual security?
8.19.2006 1:13pm