Fourth Amendment

Yes, the Positive Law Model of the Fourth Amendment is Originalist

Orin asked me to correct the record; I'm correcting it.

|The Volokh Conspiracy |

I have not had much to say about the Supreme Court's pending case of Byrd v. United States, which asks whether a rental car driver can object to the search of a car when he is permitted to drive by the renter, but not authorized by the rental car contract. But Orin invited some reactions in his most recent post on the case, where he writes:

(3) Justice Gorsuch and the Property View. Justice Gorsuch again repeatedly emphasized the property view of the Fourth Amendment. Exactly what he had in mind wasn't clear to me, though. Consider two very different standards he suggested in the argument.

At one point, Gorusch suggested that he was applying the Baude and Stern approach, even naming them as a possible standard (see the transcript page 24). This struck me as odd. Baude and Stern expressly reject the trespass-property view of the Fourth Amendment (see pages 1834-36 of their article). Instead, they favor an all-positive-law approach to the Fourth Amendment. They can correct me if I'm wrong, but it seems to me that Baude and Stern do not envision their proposal as an originalist standard that looks to the original public meaning of the text. Rather, they crafted their test from first principles, devising a a new nonoriginalist test that they see as attractive for a range of policy reasons.

True, Baude and Stern's new test draws at a very high level of generality from certain themes that relate to the historical Fourth Amendment (see pages 1837-41). But it goes far beyond that, it seems to me. It relies on policy concerns such as "liberal notions of political equality and ordered liberty" (p1846), the need for "clarity" (p1850) and "adaptability" (p1851), and the usefulness of "harness[ing] the capabilities of government institutions to engage in principled legal change" (p1852). If Justice Gorsuch is an originalist, as he says, I would be surprised if he favors the nonoriginalist Baude and Stern approach. (Granted, I understand Baude to have the very inclusive view that any view of the Constitution is originalist if the author says it is originalist, so maybe he can weigh in and certify it as originalist and thus make it so, at least under his theory. But it sure seems like a nonoriginalist approach to me.)

Orin refers here to our article, of The Positive Law Model of the Fourth Amendment, an approach I've also blogged about recently here and here and which Orin has previously criticized on other grounds.

I won't speak for James, but I do think that our view is an originalist one, derived from what we know of the original law of the Fourth Amendment. In our article, we discuss both the original history of the Fourth Amendment and the original remedial structure, and I will let interested readers judge those arguments for themselves. But originalists should have no qualms about subscribing to it.

It is true that our article also contains other arguments in favor of our view, but at least for my part there are two good reasons for that. One is that you need not be an originalist to accept our view for the other reasons we give. The other is that even an originalist might think the historical evidence is equally consistent with more than one view, and might look to other arguments to decide which of the historically-permitted possibilities to adopt. In any event, consider this a correction of the record. We make an originalist argument, even if we also make some non-originalist arguments too.

While I'm here, I also feel the need to correct Orin's misunderstanding of my view of originalism, which is not that "any view of the Constitution is originalist if the author says it is originalist." Rather, as Steve Sachs and I have written, an argument is originalist if it uses "the original meaning of the Constitution [as] the ultimate criterion for constitutional law, including of the validity of other methods of interpretation or decision," or more specifically if it is tested by "the Founders' law, as it's been lawfully changed."

What may be confusing is that lawyers make many originalist arguments that are incorrect—but originalism supplies a method of falsifying those arguments. Again, Steve and I note the need to:

distinguish the general nature of originalist theory from the much more specific empirical claims needed to sustain any given result. In our work we've noted many judicial opinions that made what we see as originalist arguments: Obergefell made originalist arguments; Brown made originalist arguments; Blaisdell made originalist arguments. But that alone doesn't establish whether these cases were right, as a matter of originalism. Those who disagreed with these cases made originalist arguments too, and it's unlikely that both sides were right.

We maintain that originalist arguments are fundamental to American legal practice, and also that many of these arguments are mistaken. We point out many Supreme Court opinions consistent with originalism by way of demonstrating the ubiquity of originalist arguments … But the fact that lawyers and judges invoke originalism doesn't show that their specific claims are right, any more than a man's waving a yardstick shows that he is tall. To make an argument is to risk falsification.

The originalist argument for the positive law model is falsifiable if somebody else presents a better account of Entick, Wilkes, and other founding-era cases, and of the role positive law played in enforcing the Fourth Amendment. But ultimately, I'm not sure why all of this matters to Orin, since my understanding is that he is not an originalist himself and has non-originalist reasons for rejecting our view.

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  1. “But originalists should have no qualms about subscribing to it.”

    Ok. I have qualms. The originalist arguments in the paper are thin gruel, in my view. The “original remedial structure of the Fourth Amendment” is not a very strong originalist argument. A stronger originalist argument wouldn’t need to rely on a “structure” of an amendment. An original intent originalist would want to know what people actually intended. A textualist isn’t going to find much “remedial structure” in the text (because there isn’t any). US v. La Jeuene wad decided three decades after the 4th was ratified, so I’ll need more to believe you that “the process of vindicating Foruth Amendment rights began by alleging that a government official had violated a legal duty arising out of general law.” But even if that were true, how the process began doesn’t dictate what those processes were intended to address.

    The argument that positive law approach “is also consistent with the views of the Founders” is not the same thing as it being originalist. Jurisprudence by coin-flip may lead to results consistent with the Constitution, but that doesn’t make coin-flips originalist.

    I don’t see it and I think originalism is getting weakened.

  2. “The originalist argument for the positive law model is falsifiable if somebody else presents a better account of Entick, Wilkes…”

    I don’t even understand this argument. You’ve just assumed that two british cases are the best evidence of original intent re: 4A and then challenge anyone to re-read those cases. There’s a step missing here, namely that you have to prove rather than assert that Entick and Wickes are the 4A’s parents. Your fill for this large step is:

    “Both incidents were thought to have played a pivotal role in the drafting of the Fourth Amendment.”

    (“were thought”? By whom? And how strong is “pivotal” here? And does this address the potential for disconnect between drafting and actual ratification? And if Thomas Clancy can tell us what originalism is, why don’t we just ask him if the positive model plays?)

    As for the cases themselves, even you admit that the strongest reference to “positive law” wasn’t available to the ratifiers in 1791. Even so, Entick sure sounds natural rather than positive law (“the great end, for which men entered into society…”) but I don’t have the whole case so I guess I’ll take your word for it. Same with Wilkes (“the person and property of every man”)–that’s natural law. Same above: you’re quoting the “sacred Rights of the Domicil”–how is that positive law?

    1. I think it’s clear that Entick and the Wilkes cases had a pivotal role in drafting the Fourth Amendment: I just don’t see how one can arrive at a meaning of “searches” based on them, and I’m at a loss as to how one arrives at the specific Baude and Stern theory based on them. The principles of these cases became the warrant clause, not the “unreasonable searches and seizures” clause, and there is nothing in the cases on what is a search or that suggests the test for what is a search is any violation of any positive law. If originalism is just a labels game, and the point is to just say what you want the test to be and then say it originalist, then fine. But I think of originalism as a more meaningful theory than that.

      1. “Put aside the reasons that these searches and seizures were ultimately thought illegal, which go to the question of reasonableness ? the second step of the Fourth Amendment analysis. When we look at the nature of the harm or intrusion, the first-step question, each event stresses property. Otis pointed to “the privilege of House” and invoked the maxim that “[a] man’s house is his castle.” The opinion in Wilkes defended “the person and property of every man.” And Entick intoned that “[t]he great end, for which men entered into society, was to secure their property,” and specifically emphasized that to justify a search required one to justify “a trespass” by looking to “positive law.” Indeed, these episodes have contributed to a longstanding conventional wisdom that until the mid-twentieth century, trespass was the central test for a Fourth Amendment search.”

        1. “The positive law model does not stop at the law of property, however, and neither did this history, though this part of the story is frequently overlooked. Wilkes (and the printers arrested along with him) had sued not just for a property violation but also for false imprisonment. Other suits similarly challenged searches and seizures as false imprisonment or other violations of what would today be thought of as torts relating to personal security. Of course we do not know exactly how far this went, or more accurately, would have gone. We cannot say for sure whether the same Founding-era principles would apply to a suit for, say, “intrusion upon seclusion” because no such right of action was then recognized. But the history is at least suggestive, and the most straightforward extrapolation is that the search-and-seizure principle ? the idea that some actions by government officials raised questions demanding judicial scrutiny ? was marked by violations of positive law, and moreover, by violations extending beyond the law of property.

          The positive law connection is further illustrated by the original remedial structure of the Fourth Amendment. . . .”

          1. Will,

            I explain in my Curious History test why those few phrases in Entick and Wilkes don’t suggest that the meaning of “search” was that of trespass. But even if you make the leap that the test was trespass — a jump, I think, but it’s at least one possible way to arrive at a standard — I have no idea how you make the remarkable jump to the view that violation of ANY POSITIVE LAW AT ALL also counted as search. There’s just nothing there, at least that I can see. You might find the positive law test normatively appealing, and I gather you do. But I don’t know why you present it as originalist.

            1. An added thought: It seems to me that much of the work you’re doing in the paper is in this sentence: “the most straightforward extrapolation is that the search-and-seizure principle ? the idea that some actions by government officials raised questions demanding judicial scrutiny ? was marked by violations of positive law.” But you’re just picking that level of generality out of a hat, it seems to me, and it’s the choice of level of generality that distinguishes your theory from every other theory of the Fourth Amendment search doctrine.

              1. Your Curious History article also says: “To be clear, I am not arguing that trespass law is necessarily an improper standard for originalists to use in interpreting the Fourth Amendment. Trespass provides a plausible standard that a court might use to fashion a deductive test that is consistent with the recognized examples of searches from the late eighteenth century. In the language advocated by Randy Barnett and Larry Solum, adopting a trespass test for searches is a plausible act of originalist construction.”

                1. In any event, in addition to the trespass examples (and the false imprisonment cases), we also have our arguments based on the original remedial scheme of the Fourth Amendment, which we think can be combined with the other evidence to make the most plausible construction one based on positive law more generally.

                  I certainly understand that some people find our argument unpersuasive. I even understand that some might say that our argument isn’t so much unpersuasive as just too thin, so that it fails to meet the relevant burden of proof. I won’t deny that one could spend a lot more time and pages on the question of the positive law model and the original meaning of the Fourth Amendment and I think that would be worth doing. But I originally showed up to clarify that we did indeed make an originalist argument, so it shouldn’t be totally bizarre that some originalists might be at least tentatively persuaded by it. I hope I’ve at least done that.

                  I don’t think I’ll be able to do anything else in this comment thread to make our argument persuasive to those who have read our article and did not find it persuasive. That will probably have to wait for future work, if it seems like there is enough of an audience for it to be worth doing.

                  1. You’re always respectful and thoughtful and I look forward to reading more of your work. I am willing to be convinced.

                  2. we also have our arguments based on the original remedial scheme of the Fourth Amendment,

                    I just read the entire Fourth Amendment without finding an “original remedial scheme.” Could someone identify it, or point me toward it, or try to explain what this means?

                    Thank you.

                  3. Professor Baude,

                    I know I’m a bit late to the party in commenting on this article, but I have a question about a possible solution to one of Professor Kerr’s criticisms of your model: the “speeding police car search” question. As I understand it, at least publicly you haven’t really responded to that criticism, but I’ve been wrestling with it for the last few days and I wonder if the solution is as simple as the following (or I could be totally off the mark):

                    Perhaps, rather than merely violating a generally applicable legal duty, an officer would have to violate a generally applicable legal duty *owed to the individual bringing the Fourth Amendment claim.*

                    I suspect you may have already thought about this, and I wonder if you’d let me know whether you agree. It would *seem*, based on my limited time thinking about it, that this formulation of the positive law question would definitely answer “no” to Professor Kerr’s question of whether someone could get a Fourth Amendment remedy if a police car had to speed to catch up with them in order to read their license plate to take down a traffic violation. “Not speeding” is certainly a generally applicable legal duty, but I don’t think it is a legal duty owed to other drivers on the road (unless, I suppose, you crash into another car, but I would think the legal right of the other drivers violated there, if any, would relate primarily to the crash itself, not the speeding).

                    (Continued in a second comment)

                  4. (continued from my first comment)

                    I wonder whether this slightly altered formulation (which may have been already what you were implying in your article?) could also help fight off some of Professor Re’s interesting objections. In his Positive Law Floor article, he provided, for instance, the following three examples, similar to those Professor Kerr has raised:

                    (these occur in the course of a police car chase)

                    1. The first officer quickly executes a lane change without signaling, as required by state law.

                    2. The second guns the engine, creating noise exceeding the decibel level set by a local ordinance.

                    3. And the third activates a GPS navigational system whose operation infringes a patent.

                    Needless to say, while all three of those instances violate generally applicable positive law, the general legal duties that they are failing to satisfy are not owed to the suspect the police are chasing.

                    By contrast, generally applicable legal duties like the duty not to trespass or the duty not to intrude upon seclusion do seem to me like they are legal duties owed to the particular people who are being searched in their persons or property (although since I have not yet been to law school – I hope it’s in my future, though! – I could be off base with my educated guesses about what the law provides).

                    Again, I would imagine that you might’ve already came up with the formulation I offer here, but if so I haven’t seen it, and would love to hear your thoughts. 🙂

                    Cheers,
                    Will

                    1. Never mind, read it again and you did indeed mention this theory!

  3. I clicked the link to Sachs’ and Baude’s article and somehow the section on “Falsification” manages to never cite Karl Popper or explain how the concept of falsifiable hypotheses applies in the area of legal reasoning. I’m not sure this portion of the argument is as thought out and articulated as well as it could be.

  4. It’s hard to think of an area of constitutional law that has devolved into such a mess as the 4th amendment. Maybe it’s getting simpler as it goes along like Potter Stewart’s obscenity test ended up simplifying the first amendment, it turns out nothing is obscene.

    In applying 4th amendment reasonableness test, turns out everything is reasonable, or at least there is a good faith exception because someone thought it sounded good at the time. To be sure there are some bad faith exceptions like roadside body cavity searches, or teens forced to masturbate for detectives, or drug sniffing dogs on porches, but short of that if it seems reasonable to a cop, then it seems reasonable to the courts. Unless possibly it might affect Microsoft’s business model.

    1. Sadly, that about sums it up: Ignorance of the law is no excuse for the average guy, but if your job is precisely enforcing the law, it’s unreasonable to expect you to know what the law is.

  5. I’m not a lawyer, and doubtful that I comprehend accurately anything being asserted by any of the parties to this debate. I suggest that has some relevance to what a test for originalism must include.

    Whatever array of features a test for originalism advances, I suggest one among them must be whether the test is comprehensible by a student of the founding era who is not versed in subsequently-developed legal doctrines. If your argument for Bill of Rights originalism demands insight into post-founding-era jurisprudence, that falsifies the originalist character of the argument.

    I would welcome attempts by both Baude and Kerr to explain their notions in terms limited to those which an elite intellectual of the latter 18th century would find comprehensible. I’m particularly curious to discover whether either has sufficient historical training to make such an attempt look even superficially credible. They would need to reference a good deal of non-legal history, or tangentially-legal history, and avoid completely explicit or implied references to post-ratification legal history.

    Because IANAL, it could be they think they have done that already, in modern lawyer-code, and I just don’t get it. If so, I would like to see that unpacked a bit, using more Madisonian language.

    1. Most of the Founders, however, were lawyers. The definition of treason in the Constitution, for example, was directly lifted from English statute 100 years prior, thus directly implying that the jurisprudence relating to that crime should be incorporated. Furthermore, how the legal system adjudicates rights in practice does far more to define the limits and contours of the rights at issue than their abstract understandings. You’d learn far more from case law than from an offhand rhetorical remark here or there.

      1. Ilya, I don’t disagree with you about case law. And of course case law is everything to Orin Kerr. And, I’m not an originalist, not even an amateur one. I do know just a bit about about founding era history, and a bit more about historical methods. And I enjoy using that knowledge to critique lawyers who pretend to originalism without knowing either substantive history or historiography. Which, of course, brings us to the point of noting that I was talking about originalism, and not about case law. I’m at a loss to understand what post-founding-era case law could have to do with original understanding. If you think otherwise, I would welcome hearing more.

        1. IMO originalism is a form of hermeneutics applied to the Constitution; where one must place the writing, speech, etc. in context (time, place, speaker, audience, etc.) then one can find the principle involved. One can bring the principle forward into modern concept to determine if/how it applies.

          Poor hermeneutics is common, especially today, where one attempts to use current context instead of the actual context; leading to more ignorance.

  6. In any event, in addition to the trespass examples (and the false imprisonment cases), we also have our arguments based on the original remedial scheme of the Fourth Amendment, which we think can be combined with the other evidence to make the most plausible construction one based on positive law more generally.

    I certainly understand that some people find our argument unpersuasive. I even understand that some might say that our argument isn’t so much unpersuasive as just too thin, so that it fails to meet the relevant burden of proof. I won’t deny that one could spend a lot more time and pages on the question of the positive law model and the original meaning of the Fourth Amendment and I think that would be worth doing. But I originally showed up to clarify that we did indeed make an originalist argument, so it shouldn’t be totally bizarre that some originalists might be at least tentatively persuaded by it. I hope I’ve at least done that.

    I don’t think I’ll be able to do anything else in this comment thread to make our argument persuasive to those who have read our article and did not find it persuasive. That will probably have to wait for future work, if it seems like there is enough of an audience for it to be worth doing.

    1. I think an audience of one is more than enough, if that one is Justice Gorsuch.

  7. My girlfriend has a baudy stern!

  8. On a side note, how long is it going to take before Google stops directing searches for the Conspiracy to the WaPo?

    1. Ugh, probably never happen because it would require “reason” from Google. 😉

  9. an argument is originalist if it uses “the original meaning of the Constitution [as] the ultimate criterion for constitutional law, including of the validity of other methods of interpretation or decision”

    even an originalist might think the historical evidence is equally consistent with more than one view, and might look to other arguments to decide which of the historically-permitted possibilities to adopt.

    Thematic originalism is the most flexible originalism yet!
    I think I might be an originalist now.

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