"Recovering the Original Fourth Amendment":
In response to Randy's post, I don't have a Ph.D. in history and have more interest in legal history than training, but my sense is that the best and most careful originalist analysis of the Fourth Amendment — written largely to refute Amar's theory — is Thomas Y. Davies, Recovering the Original Fourth Amendment, 98 Mich. L. Rev. 547, 555 (1999) (.pdf link). It's worth a careful read if you're interested in these questions. An excerpt from the introduction:
  [The historical materials establish that] the Framers did not perceive the problem of search and seizure authority in the same way we now do. In fact, they reveal that the Framers did not even use the term "unreasonable searches and seizures" the way we do.
  The historical statements about search and seizure focused on condemning general warrants. In fact, the historical concerns were almost exclusively about the need to ban house searches under general warrants. Thus, the Framers clearly understood the warrant standards to be the operative content of the Fourth Amendment, as well as the earlier state search and seizure provisions. Moreover, the evidence indicates that the Framers understood "unreasonable searches and seizures" simply as a pejorative label for the inherent illegality of any searches or seizures that might be made under general warrants. In other words, the Framers did not address warrantless intrusions at all in the Fourth Amendment or in the earlier state provisions; thus, they never anticipated that "unreasonable" might be read as a standard for warrantless intrusions.
  Perplexing as that omission may appear from a modern perspective, it made sense in the context of the Framers' understanding of the problem of search and seizure. They saw no need for a constitutional standard to regulate the warrantless officer because they did not perceive the warrantless officer as being capable of posing a significant threat to the security of person or house. That was so because the ex officio authority of the peace officer was still meager in 1789. Warrant authority was the potent source of arrest and search authority. As a result, the Framers expected that warrants would be used. Thus, they believed that the only threat to the right to be secure came from the possibility that too-loose warrants might be used.
  The modern interpretation of "unreasonable searches and seizures" is the product of post-framing developments that the Framers did not anticipate. During the nineteenth century, courts and legislatures responded to heightened concerns about crime and disorder by expanding peace officers' ex officio authority to arrest and search. That expansion marginalized warrant authority and thus undercut the premises that had led the Framers to believe that they could control the officer by controlling the warrant. As a result, the new discretionary arrest and search authority of the officer posed a novel threat to the security of person and house.
  In the early twentieth century, the Supreme Court belatedly responded to the new threat to the right to be secure by extending constitutional search and seizure doctrine to the warrantless officer. It was at that time that the "warrant requirement" emerged as a salient issue. And it was at that time that the reference to "unreasonable searches and seizures" in the constitutional text was reinterpreted as though it articulated the relativistic concept of reasonableness-in-the-circumstances.
volokh watcher (mail):

thanks for the great reference.

do you agree with this view of the 4th A?

were you familiar with this article before the NSA domestic spying issue came to light? (I ask because I've read with great interest all your posts on VC and your own excellent blog.)

would you care to venture a short statement on what the Framers ("monolith" issues aside) would have said in a Madisonian/Hamiltonian Op-Ed about NSA domestic spying and the 4th A, taking as true that Davies' view is correct -- and knowing that important facts may remain unknown to the public?
8.19.2006 1:08pm
Warsong (mail) (www):
One reason this has turned into a "Circus Maximus," is because "unreasonable" and "reasonable" are both subjective terms defined by objective opinions. Everyone perceives them in a different light, subject to their beliefs and prior lifes experiences, and, no two people will ever agree wholeheartedly upon the true definition.

However, a strict Constitutionalist, I'll hang with the Framers and Ratifiers opinions and objectives where the 4th Amendment is concernted, and, where the Presidents "War Powers" begin and end.

We don't 'need' no (before the fact) "Warrants" ta go after da bad guys.
8.19.2006 3:03pm
jonerik (mail):
I took a look at this article. It looks interesting, well researched and all that but I'm wondering: what's the point? Is it an argument to reduce the Fourth Amendment to an even lesser status, like say, the Third Amendment (no quartering of soldiers)? Since Nixon we have had a steady progression of conservative judges who have chipped away at the modest progress under the Stone, Vinson and Warrent Courts to expand the exclusionary rule, and built upon the terrible rulings, Like Terry v. Ohio, which all but repealed the ourth Amendment. One of the arguments you always used to hear from right wing jurists like Rehnquist was that the exclusionary rule should be replaced by a civil remedy so that misconduct by "zealous officers" , could be punished and deterred. As Chief Justice, he did more to expand absolute and qualified immunity from suit by officials. So now we have the worst of both worlds: no exclusionary rule or at least a seriously eroded one and virtually no right to sue wrongdoers for trespass, assault, or what have you for violating civil rights.

What's wrong with that, ask conservatives? Do we need any rules about how law enforcement or executive branch officials execute the laws? This seems to come down to how the individual feels threatened by lawless police. I see a lot of comments by people who feel that as a law abiding person, they do not care about rules which seem to be designed to protect evildoers, criminals.

There are lots of examples from the law books which shoud dispell the illusion of people feeling safe in their beds from the police. Just recall the decision which was written by now chief Justice Roberts as a Court of Appeals judge affirming the dismissal of a civil rights action by a young girl, (I think she was 11), who was arrested and taken to the station for eating an ice cream cone on a subway. The girl was never charged and she just had to spend some time in custody. Even the Court agreed this was over the top but had to affirm because the violation of her civil rights was not egregious enough to shock the consciences of the judges.

Can you get arrested for driving with a broken tail light? For refusing to give your name to a cop? Yes and a lot more. Sad to say but the average person today has much greater chance of being abused by the local police than attacked by a terrorist.

I will admit to living in the same bubble many conservatives do: I appreciate our law enforcement officials, assume most act in good faith, that they mostly catch criminals who deseve to be arrested and imprisoned and don't lose any sleep worrying over being the victim of a lawless police. But I also think it is naive to think that officials will not misbehave unless they are held acountable in some fashion by "a neutral and detached magistrate" who will carefully scrutinize adherence to the rules. The Fourth Amendment has become an important bulwark in setting the rules guarding against abuses and excesses of a police state. The Courts have diminished the Fourth Amendment far too much already and it should not be diminshed further by scholars yearning for the good ole' days of the Eighteenth century.
8.19.2006 5:17pm
Warsong (mail) (www):
Since the late 1940's I've watched the growth of the "Police State." It is total insanity to believe that a militarized "Police Force" (Swat Teams) is necessary to combat crime in this Nation. It is anathema to everything the Constitution stands for, and, what the founding fathers of this country would have dreamed. It is the "Standing Army" that they feared, an army specifically designed to fight "the People," to enforce the grinding tyranny they had just fought a war to escape.

What you're talking about is "Criminal Law," and, is completely irrelevant when the subject is "War Powers," and, Intelligence gathering to enable that war to be fought. This is why the President was given special "War Powers" to begin with. The one thing that everyone needs to consider is that those aiding and abetting an enemy are more dangerous than the enemy, because they're the "enemy within" that has destroyed more nations than foreign invaders.
8.19.2006 5:49pm
Mike Lorrey (mail) (www):
I think you misunderstand the article. According to this originalist interpretation, warrantless searches were presumed by the framers to be inherently unacceptable for obtaining evidence, witnesses, or suspects as subjects of a civilian (i.e. police) criminal investigation intent on trying suspect(s) in civilian courts.... Their measure of reasonableness was in the drafting of the warrant in the case of a warranted search. Too loose a warrant was unreasonable to them (i.e. a warrant permitting a search of an entire house for any category of items or persons, rather than a search for a specific type of item or a specific person).

That being said, there is a distinct difference between obtaining evidence to be submitted before a court in a criminal case, versus obtaining intelligence and capturing prisoners in a military conflict.

Firstly, war criminals are subject to war crimes trials under military law and military juries. As parties that engage in warfare are prescribed certain acts which are honorable, and proscribed from acts which are deemed dishonorable. Terrorism (i.e. attacking innocent civilians), wearing civilian clothes, hiding soldiers or weapons in civilian facilities, failing to display army, unit, and rank designations, operating outside of a chain of command, all being war crimes and not crimes against the peace, are prosecuted by different standards.

There is, of course, also, a greater emphasis given to collecting intelligence of use to ending the war in victory, being a higher goal in reducing overall casualities, than in preserving the sanctity of evidence to the level demanded by civilian courts, and for this reason, military courts do not have as strict evidentiary standards as civilian courts do when prosecuting war criminals.

During the present conflict, it seems that the lefts legal eagles are distinctly trying to apply civilian court standards to military intelligence and war crimes procedures. Whether this is because the left is allied with our enemies (as is demonstrated with former Attorney General Ramsey Clark representing Saddam Hussein and Clarks' WWP affiliated groups leading the anti-war protest movement) or because they resent Bush's reversal of the Clinton era treatment of terrorism as a civil crime rather than a war crime and are trying to bring it back into that plenum, I cannot say for sure, although evidence is compelling in favor of both arguments.
8.19.2006 6:12pm
Warsong (mail) (www):
Mike Lorrey

Well put, that. The mis-direction and hand waving that's been going on for months now, has finally begun to wear on my nerves. It's reached the point where I can barely remain civil.
8.19.2006 7:03pm

Doesn't this argument only refute Amar's point if we say that the expectations of the Framers regarding the language are controlling? In other words, does this argument engage in the type of originalism to which Prof. Solum is objecting over at his blog? Or do you think that the claim is actually that this understanding of the fourth amendment was in fact so pervasive that the words "unreasonable search and seizure" were actually understood to mean (not just stand in for), "search and seizure without a warrant?"

In other words, if I had said, "that peace officer unreasonably searched my house," in 1791, would a listener have automatically understood me to mean, "that officer searched my house without a particularized warrant"? If not, then I think that Davies's argument is only persuasive to those who buy into intentionalist originalism, as opposed to the more limited meaning originalism.
8.19.2006 7:15pm
jonerik (mail):
Mike: I did not read the whole law review article, which was 204 pages long. But your summary makes me wonder: how does it tell me something I don't already know about warrant requirements under modern law which requires specificity? The Supreme court has a general rule in which warrantless searches and seizures are presumed unreasonable but then there are five (maybe six today) broad categories, where the lack of the warrant will not vitiate a search or seizure, i.e. if there is probable cause. What I read of the article, I am unclear about what the writer makes of that.

You read too much into my post which had nothing to do with the issue about "civil crimes" as you call them and military justice. I'm quite sure you are right that the Fourth Amendment does not apply to military tribunals. But then, if the President is going to decide to accuse and try me as a war criminal or simply before a military tribunal for some offense, does the Fourth Amendment have anything to say about that? Who gets to decide that I can be detained without without the panopoly of procedural protections under the Fourth, Fifth and Sixth Amendments, if I am an American citizen going about by business but I happen to entertain dissenting views about his military policies? Before you say that would never happen, think again. That's what has bene going on with a lot of people, some of whom have been released already after two or more years, many of whom are still being detained in remote places without having done anything wrong under any law, as far as I know. Who's going to stop Bush from detaining anybody he wants?
8.19.2006 7:19pm
Warsong (mail) (www):
Correction, Mike Lorrey,

Warrants were not believed to even be necessary for anything but protecting the governent officials performing the searches and seizures. Warrants, in fact, damage the rights of innocent victims of those searches to recover damages against those invading their property.

Not all Cops are good guys, and, not all searches are done by those with good intentions and motives, or, even in the right place.
8.19.2006 7:28pm
"As Chief Justice, he did more to expand absolute and qualified immunity from suit by officials."

How so? by my understanding, "qualified immunity" is erroded when you have more supreme court pronoucements on officer conduct, because the law is well established. Do you mean that by the erosion of ourth amendment protection the qualified immunity is expanded?
8.19.2006 9:20pm
JT Barrie (mail) (www):
Is a "too loose" warrant the same as a "fishing expedition". In my younger days I was frequently stopped using really minor problems like a light out in my car or being in the "wrong" spot. I've even been harassed during a short fast training run because some crime was committed nearby. As I got older these fishing expeditions were curtailed.
Why are the warrantless surveillance of millions of telephone conversations and emails NOT a fishing expedition? So far I've heard no incidences where anyone was arrested for "venting" against the current band of criminals in the White House. Is that because it is not widely reported because the lapdog media's reluctance to publicize embarrassing information about authority figures?
8.19.2006 9:24pm
jonerik (mail):
Per curiam: Well, if I understand your question, yes. But maybe no. Rehnquist's argument and the arguments of others, as I understand them is that the exclusionary rule should be elimiated entirely. As for abuses, which I also understand they accept as existing, the remedy should be civil action for damages. What Rehnquist (and I mean the Court under his Chief jsuticeship) did was expand on qualified and absolute immunity while shrinking the exclusionary rule. In this way, Rehnquist and colleagues shrunk the protection of the Fourth Amendment.

The whole area of immunity means that every case for violation of civil rights is subject to a motion to dismiss/summary judgment which allows an offending official to be let out of case before any discovery. If not, that official gets an appeal to determine whether the facts and evidence warrant the qualified/absolute immunity. The aggrieved party gets no such appeal if the lower court grants immunity. Whether the law is established at the time condined the search or seizure, IMHO, is often a matter of subjective interpretation and whether you could show a case "on all fours" that would disallow it. To me, this encourages actions which invite abuses and taking chances that the result will justify the means taken.

The exclusionary rule has been limited by court rulings mostly since 1975 to allow challenges only to warrantless searches and seizures conducted of a person's "house" where by "house", I mean one owned by the person in fee simple absolute. Outside of that, a law enforcement official stands to take a chance on conducting a warrantless search or seizure and being upheld on the grounds that he/she caught a criminal: IOW, the means justifies the ends. This invites the creation of a lawless police.

I will add one thing. I did read the summary of the 204 page article offered by the host above. I gather from this that the author was trying to " get inside" the skin of the franers of the Constitution, like a reenactor (like at Colonial Williamsburg) tries to get inside a person from that era. I understand that the author is trying to avoid taking a position on originalism, but i also read the outline and bit oif the end where he discusses the "implications"of his research, so I can't say. Someone who writes a 204 page article for the UM Law Review needs to be given some serious attention.
8.19.2006 10:32pm
QC (mail):
It is fallacy to expect one has privacy on an international phone call via commercial networks. You certainly don't have that guarantee from the gov't of the other country, so I don't know what you acheive by preventing our side from gathering the info. Our govt could just purchase the information from the other govt, or steal it from their systems- that is certainly outside of FISA. Of course this filters all of the information through foreign agents and filters and/or degrades the information.

The argument that other gov'ts should have this information, but ours should not, is what this boils down to.
8.20.2006 6:09am

Of course, there is no guarantee that the other government actually is surveilling the communication. And insofar as the U.S. government paid them to do so, the other government would be acting as agents of the U.S. government, not independently.

Anyway, there is a principle here, and it would be something like this: at least when the rights and interests of U.S. citizens are involved, the U.S. government should be bound in its conduct by United States law, and not by the more permissive laws of other countries. And I'm not sure that is such a bad principle.
8.20.2006 3:05pm
jonerik (mail):
Not a fallacy. FISA and the Fourth Amendment only require a "reasonable expectation of privacy" to trigger the warrant requirement for easesdropping. It is not unreasonable for United States persons calling a foreign country to expect their call will not be monitoring, intercepted or eavesdropped upon. If I call my niece who lives in Europe, i think I don't think it is unreasonable for me to expect that the FBI or any third person will not be listening in. if I don't have a reasonable expectation of privacy for such a communication, then I have no reasonable expectation in any call.

Anyway, the purpose of the warrant under FISA is primarily to ensure that the U.S. government is not using the eaevedropping for purposes that Nixon and J. Edgar Hoover used it for, i.e. getting dirt on your political enemies, harassment, or otherwise interfering with the exercise of First Amendment rights. That's why there are supposed to be "minimization procedures" in place that protect against eavedropping on US persons unless there is probable cause to believe they are "agents of a foreign power" defined rather broadly I think to encompass organizations like Al Qaida and the Irish Republican Army. If the government is going to foreign governments and collaborating to circumvent getting such a warrant, I would say that also violates the law. The warrant requirement is there just to keep them honest. Their admitted failure to get the warrant implies they are not.
8.20.2006 3:18pm
QC (mail):
You have no expectation of any protection or privacy from intrusion by foreign governments on international phone calls. Just because you believe something, or haven't considered it, doesn't make it a reasonable expectation.

"And insofar as the U.S. government paid them to do so, the other government would be acting as agents of the U.S. government"

I believe this plays both ways. When you phone internationally, you are paying Bellsouth or AT&T (or whoever) a fee to connect your call to a foreign carrier. Part of that fee is paid to the foreign carrier, creating a commercial transaction between you and the foreign power. By paying this tribute, aren't you then an agent of that foreign power?

"Anyway, the purpose of the warrant under FISA is primarily to ensure that the U.S. government is not using the eaevedropping for purposes that Nixon and J. Edgar Hoover used it for, i.e. getting dirt on your political enemies"

Remember, this is on international calls. If Howard Dean is calling North Korea, why should the NSA not know the content of that call?
8.20.2006 5:44pm

First, I'd note that "reasonable expectation of privacy" appears nowhere in the Fourth Amendment. It is a term of art used in certain Fourth Amendment cases, but one should be cautious about overusing the term--or taking it literally, for that matter. For example, you seem to think it has to be impossible for anyone to be listening in order for there to be a "reasonable expectation of privacy", but that has never been the case. Indeed, it is always possible someone has tapped your phone line (or something similar), but that mere possibility doesn't defeat your "reasonable expectation of privacy". So, the same logic applies to foreign governments: the mere possibility that they might be listening to your communications doesn't defeat your "reasonable expectation of privacy" in the legal sense.

Second, I'd again note that just because foreign governments operate under different laws doesn't mean it is OK for the U.S. government to operate under those same laws.

Finally, you have the logic backward--if you are paying the fee to the foreign carrier, that would make them your agent, not the other way around. Although that would probably not be an agency relationship at all.
8.20.2006 10:44pm
QC (mail):
I conceed what you say about the agent relationship.

But I must argue that laws and legal rulings are indeed to be taken literally. I cannot see how any expectation of privacy can be claimed in such a transaction that includes a foreign government as a party... but putting the reasonable expectation of privacy aside, and dealing with the language of the 4th amendment- how can this be an unreasonable search or seizure? (bearing in mind the foreign government and foreign telco roles)
8.21.2006 1:58am