Today, I’ll describe my last example of the phenomenon of a constitutional principle deriving from an embedded characteristic of the Post Office: the Fourth Amendment right of communications privacy. As readers of this blog no doubt know, communications privacy issues have been big news for a long time. Orin Kerr, for example, has written extensively on the question of e-mail privacy, and of course, James Risen and Eric Lichtblau won a Pulitzer Prize — and perhaps Woodward and Bernstein treatment for the rest of their careers — for uncovering the NSA’s telecommunications surveillance program. Whole organizations are now devoted to the issue of online privacy, and whole law classes now focus on it. And, of course, just yesterday, the Ninth Circuit addressed the question of Fourth Amendment protection for text messages.
Modern Fourth Amendment privacy law is usually seen as deriving from Justice Brandeis’s seminal dissent in the 1928 case Olmstead v. United States, 277 U.S. 438, 471 (1928) (Brandeis, J., dissenting), a case in which the Supreme Court held that wiretapping a criminal defendant’s telephone didn’t violate the Fourth Amendment. I argue, though, that we need to go further back than Olmstead, back to the eighteenth century. But — and this should come as no surprise if you’ve read my previous posts — rather than back to the drafting and ratification of the Constitution, we need to go back to early postal policy.
Thus, the crux of my claim is that the constitutional principle of communications privacy didn’t actually come from the Fourth Amendment or the Constitution at all; it came from eighteenth-century postal policy. Again, as with my two previous posts, I will discuss a little eighteenth-century history and then some constitutional law.
Early Postal History — Postal Privacy
So let me start with postal privacy, the idea that the government cannot open sealed mail without a warrant (even though it is of course the government that owns and operates the postal network). Where did postal privacy first come from? Though there is no simple answer and the ultimate embedding of postal privacy into the institution of the Post Office took time, postal privacy became a central feature of the legal regime that defined the American Post Office from its very beginning.
In fact, one of the most important moments in the development of postal privacy occurred with the establishment of the American Post Office as separate and distinct from the colonial post office during the Revolutionary War. I include lots of details in the second of the two articles, but the key point is this: the reason the Continental Congress first adopted its own postal network in 1775 was in large part that the rebels wanted a communications network that was free from British surveillance. Remember, these people were very likely viewed as traitors — even before the outbreak of the war — and they needed to communicate across long distances to plan their opposition to the British.
At the end of the war, this fear of government surveillance was then written into the law regulating the Post Office. The Continental Congress passed its first comprehensive postal Ordinance in 1782, and it included a prohibition on the opening of mail without a warrant. Eventually, the prohibition was written into the same 1792 Post Office Act I’ve mentioned during my past two blog posts. Over time, the statutory prohibition on opening mail became embedded into the fabric of the postal network.
Most important for my purposes, this entire development was independent of the drafting and ratification of the Fourth Amendment. [… although, in an interesting coincidence, Jefferson — as Secretary of State — officially notified the state governors of both the ratification of the Bill of Rights and the 1792 Post Office Act in the very same letter. See Bernard Schwartz, The Bill of Rights: A Documentary History (1971), vol. 2, at 1203.]
Constitutional Law — Communications Privacy and the Fourth Amendment
As I noted above, Justice Brandeis’s dissent in Olmstead — which would have held that warrantless wiretapping of a telephone violated the Fourth Amendment — is largely viewed as the intellectual underpinning for Berger v. New York, 389 U.S. 41 (1967), and Katz v. United States, 389 U.S. 347 (1967), the two cases that form the backbone of the modern constitutional principle of communications privacy. [I want to emphasize here that I’m referring here only to the general principles embodied in Brandeis’s Olmstead dissent, since Orin Kerr has specifically argued that Olmstead has not been overruled.] [CORRECTION: In the comments, Orin corrects me here. I should have said that he has argued that the Court has never adopted Brandeis’s Olmstead dissent. My mistake.] But Justice Brandeis’s dissent had its precursors too. Crucial among the precedents on which Brandeis relied was the 1878 case Ex parte Jackson, 96 U.S. 727 (1878), the first case in which the Court ruled that the Fourth Amendment preserved a realm of communications privacy.
In Ex parte Jackson, the Court ruled, in dicta, that the Fourth Amendment prohibits the government from opening a sealed letter without a warrant. The details of Ex parte Jackson aren’t crucial. What is important, though, is that the Court simply announced this principle, and did so without citation to any cases or constitutional history. The remarkable thing about this is that the rest of the Court’s opinion — the case’s holding is that the Constitution permits Congress to prohibit the mailing of lottery advertisements — is littered with references to constitutional history.
Still, if the Court was inclined to rule on the Fourth Amendment question, we shouldn’t really be surprised that there is no reference to the drafting and ratification of the Fourth Amendment. As best I have been able to determine, there is no evidence to suggest that the Fourth Amendment was originally meant to encompass postal privacy. Modern scholars of the history of the Fourth Amendment debate a lot of different things, but no historian of the original meaning of the Fourth Amendment that I’ve found makes any mention of postal privacy, and the only scholar I’ve found who directly addresses the notion that Ex parte Jackson might be based on the original understanding, Telford Taylor, concludes that it isn’t.
So, in short, the statutory prohibition on opening letters became an institutional feature of the Post Office, which in turn led to Ex parte Jackson. The constitutional principle of communications privacy thus originally came not from the Constitution, but rather from postal policy.
Tomorrow, I’ll sketch out some concluding thoughts about the examples I’ve described the past three days.