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:
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. * * *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.
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.
Related Posts (on one page):
- "Recovering the Original Fourth Amendment":
- Akhil Amar's Originalist Reading of the Fourth Amendment:
- Originalism and the Fourth Amendment:
Wait a minute! Is Justice Black saying there is no right to privacy in the Constitution?
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
"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."
But how do we know the ratifiers took it to mean much more than "We have ratified a Bill of Rights"?
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.
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.
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.
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).