Originalism for Me But Not for Thee


At The Atlantic, legal commentator Garrett Epps takes aim at Supreme Court Justice Antonin Scalia's opinion this week in the case of U.S. v. Jones, which held that attaching a GPS tracking device to a car does in fact count as a search under the Fourth Amendment. According to Epps, Scalia's use of originalism—the idea that the Constitution should be interpreted according to its original meaning—makes no sense in this case. As Epps writes:

Scalia's opinion for the Court tried to deal with global satellite and massive computer technology with "originalist" methods: what would the Founding Fathers have thought if a colonial-era sheriff had tracked a bad guy by hiding a constable in his carriage. Seriously, grandpa?

At The Originalism Blog, University of San Diego law professor Michael Ramsey wonders why Epps is suddenly so dismissive of originalism, given that Epps himself recently relied on originalist arguments in the debate over birthright citizenship:

Not long ago [Epps] was arguing that children of illegal aliens, if born in the United States, are constitutionally entitled to U.S. citizenship by the first sentence of the Fourteenth Amendment.  (I agree.)  But that is a claim that we should be governed by rules laid down in the past by people who didn't understand modern conditions.  We could instead say that modern judges should be free to decide the birthright citizenship issue in light of modern circumstances (that is, however they think best).  The framers of the Fourteenth Amendment didn't know about mass illegal immigration, just as the framers of the Fourth Amendment didn't know about GPS tracking.  We can either apply the rules they wrote to new situations, or we can make up our own rules.

Whatever the answer to that dilemma, it should apply across the board.  Professor Epps wants to apply the framers' rule in one situation but make fun of Scalia for doing it another.

For more on U.S. v. Jones, see this column from Jacob Sullum. For a look at how originalism is dividing the legal left, see here.