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.

Comments

[Me Myself and I]

Epps is an idiot. That is all.

[Paul]

I think he’s pretty good in House.

[Res Publica Americana]

Isn’t that dude’s name Omar?

[sloopyinca]

Do these dildos not understand that we have a fucking process to change the Constitution?

[Fist of Etiquette]

We can either apply the rules they wrote to new situations, or we can make up our own rules.

You want modernity to make up its own rules? Amend the Constitution.

[Res Publica Americana]

No, please, don’t. Fuck that shit. Unless it’s repealing the 16th and 17th, for example.

[Tony]

It’s called the Divine Right of Kings and my man certainly is divine!

[Tony]

And a process to interpret it… which doesn’t involve asking you for your authoritarian ruling.

[Juice]

There is no process spelled out for interpreting it. The process we have now is just tradition.

[Mr. FIFY]

How odd, a liberal bitching about authoritarianism…

[Me Myself and I]

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?

Isn’t this an easy one? The cops can’t enter your car w/o a warrant, so they can’t hide in your car w/o one.

[Paul]

This is how I see it. I don’t know why this is so freaking hard.

[Michael Ejercito]

Isn’t this an easy one? The cops can’t enter your car w/o a warrant, so they can’t hide in your car w/o one.

That sort of makes sense, if the GPS device was police property.

But what if an undercover cop gave something to the suspect, and that something had a hidden GPS device? Would the GPS device still be considered police property?

[Another Phil]

But what if an undercover cop gave something to the suspect, and that something had a hidden GPS device? Would the GPS device still be considered police property?

Yes.

[Jose]

Let’s see, commentator at The Atlantic. Or Supreme Court justice. How to choose? I’m going with the Supreme Court on this one.

[sloopyinca]

Let’s change that around a bit: commentator on Fox News Freedom Watch (Andrew Napolitano) or Supreme Court justice (Ruth Bader-Ginsgerg)?

Not so easy now, is it?

[Res Publica Americana]

It is if you ask a pinko, Sloopy.

“omg andrew napalantano h8s racial minoritays and lieks inequalaty. YOU GO GINSBURG YOU SHO THEM, GURL!”

[Gojira]

The Founders couldn’t foresee airplanes, therefore it’s OK to pass universal healthcare.

[Res Publica Americana]

Confederate uniforms favored collar markings to shoulder insignia, Jim — therefore, Medicare is fucking awesome and indispensable to the health and security of our great democracy!!!!!!!!!!!!!!

[Jose]

Hey! That’s not me. But I agree.

[Gus]

LEAVE ANTONIN SCALIA ALONE! JUST LEAVE HIM ALONE!!!

*sobs*

[Paul]

What about Britney?

[Res Publica Americana]

Hey, guys, ultimate shat-bricks inducer: wake up one morning to find a radical, militant, minarchistic libertarian nominated and accepted for the Supreme Court in the AM Links.

[Aresen]

I’d settle for someone who had spent a few years as a defense lawyer instead of another Ivy-League academic.

And, if you REALLY want to be depressed, I am going to reiterate my prediction that the next Team Blue president is going to nominate BHO for the SCOTUS.

[Paul]

Well, he does have a Nobel Prize…

[Paul]

But in all serialness, Aresen, didn’t they suggest the same thing about Clinton?

[Aresen]

Yeah, but lying under oath AND GETTING CAUGHT kinda changes things.

[Aresen]

“serialness”?

Are you referring to a linear or geometric progression?

[Paul]

Yes.

[bigbigslacker]

So we’ll finally be able to read something in regard to his views on the constitution?

[Res Publica Americana]

Justice Obama: “If you actually read the Second Amendment, REALLY REALLY READ IT, it says “HURRRRRRRRRRRRRRRRRRRRRRRRRRRRRRRRRRRRRRRRRRRR”. Therefore, bearing arms is NOT a right.”

[Masturbatin' Pete]

And, if you REALLY want to be depressed, I am going to reiterate my prediction that the next Team Blue president is going to nominate BHO for the SCOTUS.

I doubt it, simply because when push comes to shove, Team Blue is going to want a sharp legal mind who can actually move the law in a coherent leftist direction, not just someone who will vote the correct way. If you read lefty legal types, they’re constantly pining for a “progressive Scalia,” i.e., a very smart lawyer with a sharp pen. Obama is lazy and dull, and I think the legal left knows that.

[Mo]

Epps has a point. An originalist could say that using a satellite to look into someone’s home is no different than a police officer looking into a the home with binocular while sitting in a tree across the street, which is perfectly legal. As for Ramsey’s point, I’m pretty sure it wasn’t that difficult to imagine Mexicans coming to the US then and the first birthright citizenship case happened in their lifetimes.

[John Thacker]

Although in Kyllo exactly that point caused Scalia to say that thermal imaging was *not* allowed.

It seems to me that evolving standards are much more likely to allow more invasions of privacy, not less.

[Mo]

Part of Scalia’s logic was that the technology was not commonly available to the public. Both sides of Kyllo used originalist logic.

[Masturbatin' Pete]

You’re touching on something that Prof. Orin Kerr has developed: the Equilibrium Theory of Fourth Amendment Law. The basic premise is that when new technology disturbs the balance of privacy away from the government, the courts remove protections. When technology makes it easier for the government to snoop, the courts add protections.

So when thermal cameras become cheap enough to be in police use, we can expect the courts to come up with some way to limit their use, because they help the government too much. When strong encryption becomes available to the masses, the courts say that the government can force you to divulge your password.

[Standing O]

I can’t believe that ancient bald headed fuck called someone Grandpa. Scalia’d have to be banging Garrett’s grandmother when he was 1, and Garrett’s mom would have been putting out when she was 13. OK, I believe it.

[Tony]

Everyone could stand to stop trying so much to find truth in sacred texts. The spirit of the 4th amendment is not something intelligent judges are incapable of figuring out without having to invent bizarre scenarios with long-dead casts of players.

[Res Publica Americana]

Thus spake the belated admirer of the Comintern.

[BC]

Ah, yes, the old, idiotic, “judges shouldn’t strive to be time-travelling mind-readers” critique of originalism.

Here, have a free clue: it’s a duly-enacted law, not a “sacred text”. The people who consented to be bound by it — the ratifying public — understood it to mean some things but not others; hence why they democratically consented to be bound by it, and not something different.

Why the fuck should we privilege what douchebags like you intuit to be the “spirit” of the law, which no one has ever democratically consented to be bound by, over what people actually did democratically consent to be bound by?

[Mr. FIFY]

Tony thinks the right to privacy involves only abortions and being gay.

[rac]

Scalia lost his originalist bona fides in the medical marijuana decision. But this reasoning seems like a reasonable attempt to fit a round peg in a square hole. And that’s what most originalism efforts are. I’m for them, of course. Because it’s better than making shit up out of whole cloth.

[A. Scalia]

That’s exactly why I’m against the exclusionary rule. Damned 60’s liberal activist Justice’s conjured that one up out of thin air. New Professionalism FTW.

[Justice Scalia]

Consistency? My appointment is for life, Bi-otches!

[Debbie Lewis]

In Katz vs US, a case about wire tapping a public telephone, Judge Potter Stewart wrote a brilliant opinion, “What he seeks to preserve as private, even in an area accessible to the public, may be constitutionally protected.” While people argue about how our Founding Generation would view something today, I always think it’s funny they assume that generation would do things any differently! After all, they were seeking LESS oppression, LESS subversion at the federal level. What makes people like Epps think they would support this kind of behavior, if they knew about it…I’d bet good money they absolutely wouldn’t!

[Delfin J Beltran MD]

Academic lawyers have been preaching this social trash since their separation from the Constitution in the early 1900s. They apparently found the Constitution too restricting to their ‘whatifs’ and ‘butin the caseof’ necessary to enter extraneous life possibilities that supported their erroneous line of reason and logic. It has been seriously supported by declaring that government and law is secular, in particular since the Ten Commanments covers all of mankinds moral transgressions which makes additional laws unnnecessary.

[Juice]

The framers of the Fourteenth Amendment didn’t know about mass illegal immigration…

Was there even such a thing back then as illegal immigration? I guess so, but the requirements to be legal were minimal, from what I understand. Just fill out some forms, and bam, you’re a legal resident.

[Hazel Meade]

I doubt it.

Aside from that, is there any reason to insert the clause except to say “EVERYONE gets to be a citizen, assholes, STFU!”

It’s entirely in keeping with the intent of the framers that all people born in the country are to be regarded as equals.

Okay, so we know they were hypocrites on slavery (at least some of them knew it). But the idea that if someone came here and never filled out the forms that his grandchildren would not be allowed to vote would have appalled them.

[Justing Whitmore]

You jsut have to wonder sometimes dude.

http://www.vpn-privacy.tk

[Masturbatin' Pete]

Everyone is an originalist to a certain point. Everyone.

No one has ever said “the original understanding of this clause of the Constitution supports my position, but I need to remember that the Constitution is a living, breathing document, so maybe that interpretation isn’t valid any more.” You only discard originalism when it doesn’t get you where you want to go. If the original understanding supports what you want to do, you stop there. That’s what makes originalism so powerful. It’s everyone’s default.

[Hazel Meade]

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.

The framers of the constitution would have found the concept of “illegal” immigration abhorrent.

Birthright citizenship is there *because* they wanted to ensure that EVERYONE born in the United States was treated equally, regardless of how they got here.

The idea that certain people shouldn’t be allowed to come here, and if they did their children should be denied citizenship in the land of their birth, would have sounded appalling to them.

[Masturbatin' Pete]

The Know-Nothing party did pretty well for a while before the Civil War, and it was only ten years after the Civil War that the Page Act was passed, so it’s hard to imagine that the framers of the 14th Amendment were unfamiliar or entirely opposed to restrictions on immigration.

[Invisible Finger]

What is that Italian gesture Scalia is doing in that pic?