As a follow-up to my recent article, An Equilibrium-Adjustment Theory of the Fourth Amendment, 125 Harv. L. Rev. 476 (2011), the editors of the Harvard Law Review published a short response to the article by Professor Christopher Slobogin, An Original Take on Originalism, 125 Harv. L. Rev. F. 14 (2011). Professor Slobogin contends that equilibrium-adjustment is just originalism, and therefore has all of the problems that Professor Slobogin identifies with originalism.
The Forum editors offered to publish my reply, and I have just posted this 8-page essay, Defending Equilibrium Adjustment, 125 Harv. L. Rev. F. (forthcoming 2012). From the introduction:
Equilibrium adjustment is not originalism. Equilibrium adjustment is a theory of maintaining the status quo balance of power, not restoring the rules of the eighteenth century. That explains why living constitutionalists and pragmatists alike have embraced equilibrium adjustment, and why the chief attack on it has been launched on originalist grounds. It is true, as Professor Slobogin says, that the theory “harks back to some earlier time.” But that does not make it originalist. The relevant “earlier time” is a time before the technological development, not specifically the year the Fourth Amendment was ratified.
In short, Slobogin’s critique misses the mark by aiming at the wrong target. His response critiques originalism but not equilibrium adjustment. I will develop my reply in three parts. First, I will show how the theory of equilibrium adjustment differs from originalism. Second, I will use the Supreme Court’s recent decision in United States v. Jones to show how equilibrium adjustment coexists in both originalist and non-originalist forms. Finally, I will address Professor Slobogin’s criticism that the theory of equilibrium adjustment does not necessarily answer which way the Supreme Court should rule in difficult cases. I concede the point, but challenge the assumption that a theory of Fourth Amendment law should provide such answers.