The Volokh Conspiracy
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My friend and co-blogger Will Baude argued recently that his Positive Law test of the Fourth Amendment is an originalist approach. I find that position intriguing, in part because it brings up the difficulty of identifying what it means for a view of the Fourth Amendment to be originalist. It seems to me that if the Positive Law test of searches is originalist, then all of my writings on what is a Fourth Amendment search are also originalist, or at least are perfecty consistent with originalism. Indeed, I have a hard time thinking of any proposed Fourth Amendment search tests that aren't consistent with originalism. And most of them seem more plausibly correct from an originalist perspective than the Positive Law test.
That raises an interesting question for a Supreme Court Justice who is a committed originalist: Does the method of originalism provide any guidance in interpreting what is a Forth Amendment search? The practical answer may be "no," or at least "not all that much." And the Positive Law test seems particularly hard to reach from an originalist perspective. This post will explain why.
I. The Challenge of Fourth Amendment Search Originalism
As I have written before, the big challenge of Fourth Amendment origialism is that the framing-era materials are very sparse. Here's most of what we know. First, the enactment of the Fourth Amendment was largely a response to a few high-profile English cases on general warrants, such as Entick v. Carrington and the Wilkes cases. The Fourth Amendment was largely a response to those cases, as it specifically prohibits general warrants in the warrant clause. We know that there was a body of English law covering certain aspects of search and seizure at the time of the framing, most of it focused on the standard for a lawful arrest (see, for example, 4 Blackstone's Commentaries Ch. 21), although we don't know how much of that English law would have been understood to be adopted by the Fourth Amendment's enactment.
We also know that several states had enacted search and seizure restrictions in their state constitutions before the Fourth Amendment was proposed, and we have good reason to think that the federal Fourth Amendment was designed to do more or less what they did. But we don't have much of a sense of what those state constitutional provisions did beyond ban general warrants. Finally, we have the text of the Fourth Amendment, the first clause of which states: "The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated[.]"
That's at least a modest amount of history to go on, so there are some Fourth Amendment questions that originalism can shed some light on. For example, if someone proposed that the Fourth Amendment allows general warrants, we could confidently say that was inconsistent with an originalist approach.
But here's most maddening thing about trying to be a Fourth Amendment originalist. The existing historical materials shed almost no light on the original public meaning of what today is the most important issue, the scope of "searches." (I'll base this discussion in large part on this article, which you should consult if you want more details.) That specific issue didn't come up for a bunch of reasons, among them that there was no independent cause of action for unreasonable searches and seizures. The scope of law enforcement privilege in investigations generally came up as affirmative defenses to liability for other causes of action, such as civil trespass suits (where a proper warrant could justify the trespass of a house search) or a civil suit for false imprisonment (where proper cause could justify an arrest that had seized a person). Given that, it just wasn't necessary to define what counted as a search or seizure. It didn't matter.
And then as now, "searches" can mean a range of things. A search could mean physically breaking into and rummaging through a place. But then it might just mean scrutinizing something closely. Or maybe it means just looking for something from afar. Which of those definitions might have been assumed by the public at the time of the Fourth Amendment's enactment?
Based on my research, I think we just don't know. On one hand, the few cases and the occasional framing-era discussion of the Fourth Amendment involved and referred to physical entry as "searches" and physical removal of property as "seizures." The paradigmatic case of a search was physical intrusion into a home and rummaging through stuff inside, as in cases like Entick. On the other hand, the few data points don't suggest a test or say the level of generality that can answer how far beyond physical entry (if at all) the Fourth Amendment concept of searches should extend. As far as I have been able to discern, at least there just isn't a useful discoverable historical answer to the question.
II. The Non-Originalist Principle Needed to Devise any Search Test (Even For Originalists)
Why does this matter? It matters, I think, because modern doctrine now demands a test for what is a search. These days there are causes of action for Fourth Amendment violations. Criminal defendants can file motions to suppress. The subjects of searches can file civil actions under Bivens or Section 1983. The Fourth Amendment is now a sword and not just a shield. It provides a cause of action and not just the basis for an affirmative defense. That means we now need to answer something that didn't need to be answered in 1791. We need a test for what counts as a search to know what the police can do and when that legal cause of action exists.
But originalist methods just can't provide the test. As I wrote in my article a few years ago:
Devising a test from a set of examples raises a level-of-generality problem: Examples alone cannot identify how far beyond their facts the principle should extend. Clearly, physical entry of individuals inside the home to find evidence counts as a search. At the narrowest level, then, a search might be only a physical entry by government officials. A broader approach could focus on whether the officials interfered with property interests, such as whether a trespass occurred. Or perhaps the test should be whether the government interfered with privacy, with physical intrusion being just one example of government acts that violate privacy interests. Examples alone cannot identify which principle to use.
Here's the key. It seems to me that to arrive at a test—to articulate a doctrine for what is a search—one must adopt a non-originalist method for choosing among these possibilities. Maybe you think a broad test is right. Maybe you think a narrow approach is correct. But the historical materials can't answer the question. To use a football analogy, originalist methods can say that the rule is somewhere in the wide center of the field, say, between the 20 yard lines. But because the needs of modern doctrine demand a test for searches, you need some non-originalist principle to pick it.
As a practical matter, that makes it hard to distinguish originalist and nonoriginalist approaches to articulating a test for what is a search. Among all of the possible search tests, most of the tests I can recall having encountered—several dozen over the years, I would guess—are between those 20 yard lines. That is, most approaches could be articulated as being consistent with the originalist approach. When the history doesn't narrow the range, pretty much everything falls within it.
The upshot of this is that whether you claim to be an originalist or claim to reject originalism, you're actually doing pretty much the same thing when you try to articulate a test for what is a search. Everyone is picking non-originalist principles to get there, whether they are picking tests that are broad or narrow; based on property or privacy; derived from positive law or proabilistic expectations or something else. One author may claim that his theory is originalist. Another author may claim that his theory is nonoriginalist. But when you shed the label, I think that the analytical step that is doing the actual work—the selection of some principle outside the original public meaning of the Fourth Amendment to get to a test for "searches"—is not obviously different for originalists and non-originalists.
III. The Difficulty of Reaching the Positive Law Test From An Originalist Perspective
I think the Baude and Stern Positive Law test is a good example of this. The new and creative work that is being done to arrive that their new test strikes me as non-orignalist in nature. Consider their test. They propose that a Fourth Amendment search occurs "when government officials either violate generally applicable law or avail themselves of a governmental exemption from it" in a way "generally likely to obtain information." Under their test, as I understand it, you imagine that a private party did the same thing the government did. If it was "unlawful for an ordinary private actor to do what the government's agents did," in the sense that a private party committing the act would violate "any prohibitory legal provisions, whether legislative, judicial, or administrative in origin, and whether classified as criminal or civil in nature"—federal, state, or local—then it counts as a Fourth Amendment search. They further "take for granted" existing Supreme Court doctrine on reasonableness and remedies.
The key idea is that violating any kind of legal prohibition of any kind makes the government act a search, as long as the government is likely to obtain information. If enacted, this test would have extraordinary and quite radical implications.
But is it originalist? As best I can tell, Baude and Stern don't directly say in the paper that theirs is an originalist theory. In their 69-page article, the word "originalist" appears only once in passing. The word "originalism" appears only once in a footnote citing an article with that word in the title. "Public meaning" isn't mentioned at all. Most of their article is based on non-originalist arguments for why their test is a good one, largely based on a particular theory of the state and the proper role of government outside the specific context of searches and seizures. The early history and text of the Fourth Amendment itself seems to be covered only in a 5-page section, pages 1837 to 1841. And that discussion of history is super tentative. It concludes with more of a question than a conclusion: "the time has come to consider . . . whether [the Baude and Stern test] is compatible with the history leading up to the Fourth Amendment's adoption."
The tentative case Baude and Stern make that their proposed test is compatible with the history runs like this. First, the cases that inspired the enactment of the Fourth Amendment involved entering and ransacking homes that sometimes led to trespass actions such as Entick and Wilkes. "These episodes," Baude and Stern write, "have contributed to a longstanding conventional wisdom that until the mid-twentieth century, trespass was the central test for a Fourth Amendment search." So far, that's pretty standard. I should say that I happen to think that standard historical account is wrong: As I have argued here, there actually was no trespass test for what is a Fourth Amendment search until 2012 in Jones. But this is indeed the standard account most sources (including Supreme Court decisions) have repeated for the last fifty years or so.
How do we get from a trespass test to an all-forms-of-positive-law test? That's a pretty huge difference. The key passage is at pages 1839-1840:
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.
Mull that over. The idea is that some lawsuits filed against what today would be seen as unreasonable searches and seizures claimed torts other than trespass—in particular, false imprisonment or some other (unnamed) personal security torts. We don't know that those other torts were significant in those cases. We don't know that the non-trespass claims were significant in the cases that influenced the enactment of the Fourth Amendment. But torts beyond trespass were alleged in some cases. Based on the fact that there were some non-trespass claims alleged in some of the cases, Baude and Stern conclude that "the most straightforward extrapolation" is that a search occurs when any "positive law" was violated.
Woah. Whatever you make of that conclusion, it does not strike me as a "straightforward extrapolation" of the history. Consider, why should the presence of non-trespass claims in some cases expand the original public meaning of what is a "search"? And even if false imprisonment torts and maybe some other torts about personal security were considered part of the picture at the time of the framing, why would that mean that any violation of any positive law—not just torts, or crimes, but any statute, any regulation, anything law—would be a search?
The leap to an "any positive law" test is particularly puzzling because there's a simple explanation for why false imprisonment and other personal security torts would be claimed in search and seizure cases in the 18th century. As I noted earlier, the common law of search and seizure had a lot of law on the standards for arrests. Arrests were seizures of persons. And the way that the law of arrest would be raised was often as an affirmative defense to a tort claiming false imprisonment or some other tort relating to personal security. If the investigator broke into a house, the tort was trespass and the defense would be that the search was reasonable. If the investigator made an arrest, the tort was false imprisonment and the defense would be that the seizure was reasonable. The common law of searches and seizures provided an affirmative defense to these particular torts.
Baude and Stern try to use that switch by claiming that "the original remedial structure of the Fourth Amendment" echoes their positive law test. Because search and seizure rules originally acted as a privilege for those enforcing the law, they reason, Fourth Amendment issues came up when there was some source of positive law that created a cause of action for which search and seizure rules could be a defense. "[T]he structure of the inquiry matches our vision," they argue, in that there had to be a positive law violation alleged to trigger litigation on search and seizure law.
But that conclusion suffers from a serious level-of-generality problem. True, search and seizure issues generally came up when there was one of the causes of action for which the search and seizure privilege provided a defense. But that involved a limited set of tort claims like trespass and false imprisonment. Those causes of action arose in cases that involved, well, searches and seizures of persons, houses, papers, and effects. In contrast, much of what makes Baude and Stern's test so unique is that it goes so far beyond those traditional tort claims to cover any law, even apparently it provides no cause of action at all, and even if it has nothing to do with persons, houses, papers, or effects—and even if it doesn't in any way involve acts that resemble searches or seizures. What makes the Baude and Stern test unique is departure from the history, it seems to me, not allegiance to it.
That gap seems a particular challenge for the positive law approach. As Baude and Stern recognize, the scenarios that triggered the Fourth Amendment involved breaking into homes, taking away stuff, and arresting people. The text of the Fourth Amendment expressly limits the Fourth Amendment along those lines, declaring a right of the people "to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures." The Baude and Stern positive law approach seems to ignore that text and history. Not only does it drop the idea of any kind of invasion being required, whether physical or virtual. It also drops the idea that the invasion be of one's person, house, papers, or effects. It replaces that with the rather different idea that any kind of law violation triggers the Fourth Amendment.
In short, it seems to me that the choice of a test here isn't coming from 18th Century history. Instead, the real work of arriving at the test is coming from my friends Will Baude and James Stern, circa 2016. If their test is originalist, then it's hard to come up with a test that isn't—or at least that couldn't be justified using originalist methods just as easily or more easily than the Positive Law approach.