The Volokh Conspiracy

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New Draft Article: "Katz as Originalism"

My latest draft is up on SSRN. Comments welcome.


I have recently posted a new draft article, "Katz as Originalism," forthcoming in the Duke Law Journal.  Here's the abstract:

The "reasonable expectation of privacy" test of Katz v. United States is a common target of attack by originalist Justices and originalist scholars. They argue that the Katz test for identifying a Fourth Amendment search should be rejected because it lacks a foundation in the constitution's text or original public meaning. This is not just an academic debate. The recent ascendancy of originalists to the Supreme Court creates a serious risk that the reasonable expectation of privacy test will be overturned and replaced by whatever an originalist approach might produce.

This Article argues that originalist opposition to Katz is misplaced. Properly understood, the Katz test is consistent with both originalism and textualism. The "reasonable expectation of privacy" framework both accurately tracks the constitutional text and reflects a sound interpretation of its original public meaning. The originalist criticism of Katz is based on a misunderstanding of what the Katz test does. Instead of creating a constitutional free-for-all, the test merely preserves the original role of the Fourth Amendment against the threat of technological change. Ironically, the alternatives that originalist and textualist critics have proposed are either Katz in disguise or are less rooted in text and original public meaning than Katz itself.

Comments very welcome!  E-mail them to orin [at] berkeley [dot] edu.