The Volokh Conspiracy

Mostly law professors | Sometimes contrarian | Often libertarian | Always independent

Volokh Conspiracy

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

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


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.