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.

Comments

[Aladdin's Carpet]

Orin Kerr vs Will Baude, round 1.

As a side note jts articles like these which is why I am not Gung ho about precedent overturning.

[tkamenick]

“Properly understood” – The weaseliest of words.

[M L]

Necessarily and properly.

[Stephen Lathrop]

I predict that forthright originalist interpretation of founding era privacy practices would yield chaos. I have never reviewed historical records with that question in mind, but remember enough to make me expect that privacy available in the founding era was highly variable, tended to increase markedly with higher social status (and nearly vanish with lower status), but also that different colonial regimes handled things differently. Good luck.

[SKofNJ]

Why couldn’t the Court just have said this isn’t covered by the Fourth. If you want this right, you’ll have to pass legislation.

[Aladdin's Carpet]

Then what is? Sure, the court could say the 4th amendment means nothing, but thats wrong, the whole point of it is to overrule a legislature which, in the interests of better enforcement of laws, invades peoples privacy.

[SKofNJ]

There’s a difference between the 4th applying to some circumstances and it applying to everything. The fact is modern technologies have created a work-around. If so, the Court’s job is to acknowledge that and throw the ball into the legislators’ court, not to reinvent the 4th so it stands for what they’d like it to stand for.

[nealgreenwood1]

Since we have been spending money we don’t have for many years, we are now locked in to deficit spending. Throwing money at college kids is not a bad way to ensure at least some people have a decent enough job to pay the tax bills from all the deficit spending.
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