Final Version, "Katz as Originalism"

Understanding the "reasonable expectation of privacy" test.

I'm pleased to say that my latest article, Katz as Originalism, has just been published 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. 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. An originalist might want to restate Katz using the constitutional text. But that is a matter of form, not substance.

Comments

[Michael D]

Quite off the subject but a question I have contemplated and wonder if anyone might help me.

For the sake of argument, suppose the word “unreasonable” in the 4th amendment were changed to “unwarranted”.

What are the ramifications of such a change?

This is merely a mental exercise this article brought back to mind.

[mse326]

Think off all the exceptions to the warrant requirement. They would all go away. Some of those might be considered good, and some bad.

The change the would be felt the most is probably more about seizure than search, since the change effects both. Law enforcement wouldn't be able to even detain, much less arrest someone without a warrant. You could shoot someone right in front of the cops and they wouldn't be able to even prevent you from leaving until they got a judge to sign off on a warrant. It would even be debatable whether they would be allowed to fire back at you if you shot at them, or do anything to you even if you attacked without first getting a warrant.

[Michael D]

Thank you. I have seen the idea floated and was thinking along the same line but perhaps not to the extent you have taken it with the inability to act in all situations without a warrant.

In fact, the use of deadly force to affect an arrest is, in most jurisdictions, requisite upon a determination of probable cause rather than reasonable suspicion. The use of that force must pass a two-pronged probable cause test, which precludes the use of deadly force in most flight situations.

But I do believe you are exactly correct about the constraints and that it could be both good and bad.

[Brett Bellmore]

"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."

Depending on what that something might be, isn't that as capable of being a hope as a risk? It's not like the 'reasonable expectation' test has been all that protective, in practice.

[Stephen Lathrop]

The single sentence of the Fourth Amendment divides into two parts. The second part, the warrant clause, is narrowly about search warrants and need not concern us here. To understand when a search triggers the Fourth Amendment, it’s the first part that matters:

As a non-lawyer with an interest in history, I suggest Kerr's analysis ought to start with a question whether that premise itself is an acceptable originalist understanding.

It is Madison we are talking about, one of history's more discursive writers. He thought nothing of spreading some point of particular meaning across not only multiple clauses, but also multiple sentences, and even multiple paragraphs—all intended to be read for their mutual reflections and inflections, and considered all at once.

For instance, folks who now read Federalist 10 to parse it sentence-by-sentence almost always get it far wrong. Encountering, "liberty," they pause to explicate the word in terms of Lockean notions of civil rights, and then proceed—only to end up sunk in confusion as a result.

In Federalist 10 Madison had nothing of the Lockean sort in mind. The essay in its entirety makes clear that the, "Liberty," Madison expounded was a right of self-government on majoritarian principles—and that at least for the purposes of that essay, Madison was considering that majoritarian notion as a counterweight to individualistic civil rights interpretations. But in Federalist 10, to be sure of what is going on, you have to withhold judgment until you have read everything. That is Madison—and to a lesser extent, that is 18th century elite literary style. It is usually better to read everything together, instead of dividing it up to be analyzed separately.

So what of Kerr's approach would change if you apply that principle? Well, for one thing, if you read the warrant part of the 4A as material to the definition whether a search is reasonable, you can draw a strong inference that the particularity requirement implies considerable prior evidence in possession of authorities. Possession of that evidence can be read as a sine qua non of a reasonable search. The already-known evidence needs to be specific, too. As a search justification, vague evidence regarding places and search objects can hardly be proof of warrantable fore-knowledge.

A couple of other points:

I don't know whether Kerr has noticed this, but his paper quotes an original Madison draft of the 4A which mentions "places," plural, to be searched, instead of the, "place," singular, found in the final version. Leaving aside the considerable historical question of how to treat a drafting change of that sort, it would be notably disruptive to Kerr's argument about home intrusions if that plural had made it through into the final text.

That suggests to me a focus for a historical investigation by those considering themselves friends of orginalism. Does Madison's plural usage in the draft reflect a more general public understanding which did not make its way into the final text? If so, what would that mean for originalist interpretation in this instance? Originalists, after all, put their faith in public understanding, not original meaning. I think that is a bit naive, but if you take it at face value, then you can hardly ignore original drafts which might better reflect public understanding than otherwise.

Also, unmentioned by Kerr are any privacy implications of the Stamp Act. I can recall reading some sources on another topic I have since forgotten, and noting in passing that there were complaints about the Stamp Act, not merely as an outrageous scheme of taxation, but also as a tyrannical intrusion into private affairs. The Stamp Act forced colonists to put documentation of their affairs into the hands of officials for inspection. I remember thinking some historian should look into that in more detail. Maybe someone has done that. There could be notable implications for Kerr's analysis of the originalist understanding of the scope of reasonable search.

[ducksalad]

Does Madison's plural usage in the draft reflect a more general public understanding which did not make its way into the final text? If so, what would that mean for originalist interpretation in this instance? Originalists, after all, put their faith in public understanding, not original meaning.

Um, a couple majors error here. It's public understanding of what was adopted, not of what was specifically rejected. Furthermore, unless that draft was circulated to the public, there was not a public understanding of it. And on top of that, I think the public of the time was capable of understanding the difference between the plural and singular.

[Stephen Lathrop]

ducksalad, feel free to insist on whatever ideological priors you want to bring to the discussion. There is little agreement on what constitutes originalism. You insist on a popular variant. All the variants from the legal community that I am aware of are similar to yours in at least one respect—they rely notably on present-minded assumptions.

That method encourages inferences loaded down with modern day cognitive furniture. Every modern mind is stuffed like an attic with that stuff. But historical figures from the time studied knew nothing about that attic. All its contents were constructed and laid up during their unknowable future.

Want to reason historically? Adopt one idea as your lodestone. Pick any place and time in the past, and there is one truth about what actually happened there and then, and we probably do not know it. Almost always, most of what we might wish to know did not survive. Thus, to attempt the difficult task to infer a passage of history from a past we do not know, the first thing we ought do is figure out the most obvious ways to go wrong, and avoid those.

With an eye to helping you with that, here is the most compact outline I can offer about how to reason better about the past. The activity a historian attempts is, as I mentioned, to infer a passage of history which has not survived. To do that a historian assembles bits and pieces created in that place, at that time (and before that time, but not afterward), which have survived—as many bits and pieces as the historian can find.

You could hope to do that yourself. Libraries, museums, archives, and storehouse are there to help you. But it is time consuming to do it.

With those bits found and collated, you do not attempt by your own free-roaming cognition to critique them. Your free-roaming cognition is too inextricably tied to that stuff in the attic I mentioned above. Instead, you create inferences about the past which did not survive by making those bits and pieces from the past which did survive critique each other. From that process you exclude every impulse to pursue any present purpose.

A process governed that way has potential to facilitate valid historical inferences. Those will at least remain mostly free of present-minded pitfalls which any different approach will encourage.

If you have followed this far, you will begin to understand that you must be content to work within daunting limitations. You must also resist frequent temptations to fill in interstices—which would, once again, too likely result in packing your would-be historical inferences with stuff smuggled in from that modern attic.

For instance, you critique my comment thus, "It's public understanding of what was adopted, not of what was specifically rejected." That sentence relies tacitly on two present-minded presumptions. First, existence of a state of public knowledge of what was adopted; and second, a rejection made purposefully for a reason known now. To support either presumption, historical survivals are either not available, or at least unknown to you. Any sense you may have that you know what to presume in either case is supplied to you from present-minded priors, and not at all from historical survivals.

Take the simpler case, of differing texts which have both survived. To avoid present-minded misinterpretation, you could be ready to accept them as contradictory bits of evidence, of comparable historical value. Even in the case of mutual impossibilities, historical reasoning is entirely content—and must be content—to let apparent contradictions stand unresolved, if that is what valid historical survivals suggest. There can be no valid historical pretense that choosing one or the other, absent some other historical survival to mediate the choice, is valid historical reasoning. The unresolved contradiction becomes the valid historical conclusion.

In this case, one historically unsupported assumption is that the plural meaning better captured contemporary public understanding of appropriate limitations on government search. A contrasting historically unsupported assumption is that the singular meaning better represented contemporary public understanding. There is no reason in sight to suggest Madison himself had either reason or knowledge to prefer either of those interpretations of the public mood. There is at least one example, in Madison's own historical record of the Convention, in which Madison disclaimed any ability for anyone in a nation so extensive as the United States to make that kind of estimation of the public mood.

Thus, in either case, we have no historical notion—barring discovery of some as-yet-unknown additional survival—what happenstance occasioned substitution of the singular for the plural. Perhaps more to the point, we do not know on the basis of historical survivals—if that substitution was indeed in any way purposeful—if it resulted in a more-accurate representation, or a less-accurate representation, of contemporary public understanding.

To get out of that pickle, your impulse is to reach for a present-minded principle of legal interpretation, and let it resolve that tension. That may be a legally valid method of reasoning. It is not historically valid. As a matter of history, you simply do not know whether Madison's original draft in the plural form better described the public's understanding of privacy rights, or whether a final draft in a singular form better described it. It may be a historical question you would like resolved for present purposes, but a modern standard of legal interpretation does nothing to accomplish that historically.

Thus, there is a historical contradiction of which you are only slightly aware. Your attempt to resolve it stems from present-minded purposes. It works by present-minded standards which you cannot show by evidence were in any way revelatory of the historical passage you wish to infer.

Whatever that process may be, it has nothing to do with history. If reasoning of that sort underlies, "originalism," then it is an ahistorical originalism without claim to any authority broader than the present-minded standards you bring to it. It is not intellectually helpful to suggest reasoning based on that kind of present-minded interpretation can somehow gain stature by reference to a historical past with which it does not seriously engage.

[David Nieporent]

That was a very long winded way of saying nothing.

[Stephen Lathrop]

It was long, Nieporent. I was dismayed as I wrote it to discover how much it took to get that one small bit of the historical reasoning process explained. So it was not, "nothing." It was a little thing to explain a larger idea. Re-reading it, I am convinced a smart guy like you could understand it if you tried.

[David Nieporent]

As a matter of history, you simply do not know whether Madison's original draft in the plural form better described the public's understanding of privacy rights, or whether a final draft in a singular form better described it. It may be a historical question you would like resolved for present purposes, but a modern standard of legal interpretation does nothing to accomplish that historically.

This is a completely confused expression of the question, and you manage to do it twice in this gibberish. The question is not the public understanding of privacy rights. The question is the public understanding of the text of the constitution that was adopted.

[Stephen Lathrop]

I have tried to explain this to you several times Nieporent. I will try another approach.

– If you know what the law says, you may say you know the law.

– If you know how the law has been interpreted, you may say you understand the law.

– If you wish to say you know what the law means, you must understand the activity the law purports to govern.

Would-be originalists are clueless unless they understand in context the historical activity which the laws in question purported to govern. Any attempt to infer the "public understanding of the text of the constitution," must begin by specifying—understanding then, or understanding now? If it is now you want to understand, your present-minded cognitive tools may prove adequate to the task.

If it is then you want to understand, you must practice different methods. Present-minded cognitive tools fail to provide legitimate insight into the activities the law then purported to govern. To apply present-minded tools frustrates any legitimate claim to say you know what the law meant. If it is your ambition to learn what the law meant historically, you have no choice except to learn and apply the specialized tools of historical inference.

[Dilan Esper]

It is Madison we are talking about, one of history's more discursive writers. He thought nothing of spreading some point of particular meaning across not only multiple clauses, but also multiple sentences, and even multiple paragraphs—all intended to be read for their mutual reflections and inflections, and considered all at once.

This is preposterous. Madison was putting forth whatever he thought could get ratified. And he's a terrible writer and that's one of the reasons why we have such a confusing Constitution with so much dumb stuff in it.

The first rule of construction of the Constitution should be "whatever James Madison thought should be completely ignored".

[Stephen Lathrop]

Trigger warning for you Esper. Don't try to read my reply to ducksalad above.

[Archibald Tuttle]

In my opinion, demise of the "reasonable expectation of privacy" would be welcome. The reason is that it results in the inevitable disappearance of privacy via erosion.

Violate privacy often enough, it become unreasonable to expect privacy. Such erosion happened over and over again in our history.

For example, the mass surveillance exposed by Edward Snowden. After that, it is only reasonable to presume that all phone calls, all Internet use are surveilled all the time.

We are rapidly coming to the point where a reasonable citizen must assume that he is on camera all the time except perhaps in the bathroom and his bedroom. That makes it very difficult for anyone to be a long term fugitive. It also erodes privacy.

We need a bill of rights for privacy that does not depend on the word reasonable.

[Orin S. Kerr]

The Fourth Amendment doesn't actually work this way, for the reasons explained in the article. (Also note that in Carpenter, the technology taking away the expectation of privacy was taken as a reason for the Supreme Court to *expand* the scope of the reasonable expectation of privacy.)

[Nick Kahn-Fogel]

Very interesting. A couple of years ago, I published an article with a related thesis: that the originalist framework Justice Gorsuch articulated in his Carpenter dissent replicates both the advantages and drawbacks of Katz. You can find that article here: https://www.harvard-jlpp.com/wp-content/uploads/sites/21/2020/03/Kahn-Fogel-FINAL.pdf

[Roman Moroni]

I’m not a lawyer or any kind of expert on originalism, but I’m curious what is the originalist take on “cruel and unusual”?

Is it about public understanding of what was considered cruel and unusual at the time? Or does it mean, whatever is considered cruel and unusual at whatever time you happen to be applying the law? I assume it’s the latter.

I don’t think it’s very controversial for originalists to view the 1st and 2nd amendment to include technological changes the founders couldn’t predict, so why not the 4th?

[Noscitur a sociis]

I believe the consensus is generally in line with Justice Gorsuch's recent explanation:

While the Eighth Amendment doesn’t forbid capital punishment, it does speak to how States may carry out that punishment, prohibiting methods that are “cruel and unusual.” What does this term mean? At the time of the framing, English law still formally tolerated certain pun- ishments even though they had largely fallen into disuse— punishments in which “terror, pain, or disgrace [were] superadded” to the penalty of death. 4 W. Blackstone, Commentaries on the Laws of England 370 (1769). These included such “[d]isgusting” practices as dragging the prisoner to the place of execution, disemboweling, quarter- ing, public dissection, and burning alive, all of which Blackstone observed “savor[ed] of torture or cruelty.” Ibid.

Methods of execution like these readily qualified as “cruel and unusual,” as a reader at the time of the Eighth Amendment’s adoption would have understood those words. They were undoubtedly “cruel,” a term often de- fined to mean “[p]leased with hurting others; inhuman; hard-hearted; void of pity; wanting compassion; savage; barbarous; unrelenting,” 1 S. Johnson, A Dictionary of the English Language (4th ed. 1773), or “[d]isposed to give pain to others, in body or mind; willing or pleased to tor- ment, vex or afflict; inhuman; destitute of pity, compassion or kindness,” 1 N. Webster, An American Dictionary of the English Language (1828). And by the time of the found- ing, these methods had long fallen out of use and so had become “unusual.” 4 Blackstone, supra, at 370; Banner 76; Baze, 553 U. S., at 97 (THOMAS, J., concurring in judgment); see also Stinneford, The Original Meaning of “Unusual”: The Eighth Amendment as a Bar to Cruel Innovation, 102 Nw. U. L. Rev. 1739, 1770–1771, 1814 (2008) (observing that Americans in the late 18th and early 19th centuries described as “unusual” governmental actions that had “fall[en] completely out of usage for a long period of time”).

Contemporary evidence confirms that the people who ratified the Eighth Amendment would have understood it in just this way. Patrick Henry, for one, warned that unless the Constitution was amended to prohibit “cruel and unusual punishments,” Congress would be free to inflict “tortures” and “barbarous” punishments. 3 Debates on the Federal Constitution 447–448 (J. Elliot 2d ed. 1891). Many early commentators likewise described the Eighth Amendment as ruling out “the use of the rack or the stake, or any of those horrid modes of torture devised by human ingenuity for the gratification of fiendish pas- sion.” J. Bayard, A Brief Exposition of the Constitution of the United States 140 (1833); see B. Oliver, The Rights of an American Citizen 186 (1832) (the Eighth Amendment prohibits such “barbarous and cruel punishments” as “[b]reaking on the wheel, flaying alive, rending asunder with horses, . . . maiming, mutilating and scourging to death”). Justice Story even remarked that he thought the prohibition of cruel and unusual punishments likely “un- necessary” because no “free government” would ever au- thorize “atrocious” methods of execution like these. 3 J. Story, Commentaries on the Constitution of the United States §1896, p. 750 (1833).

[TGGP]

It forbade novel punishments. So punishment via incarceration (which is common now, but was not then) would be out. Corporal punishment (common then, but not now) would be just fine. Capital punishment is explicitly mentioned as a potential punishment for treason.

[Spencer]

For an example of a hockey-stick graph, run google ngram on "privacy", "privacy right" and "right of privacy".

The very notion of privacy would have been laughable to anyone born before 1900, or born outside of a major city thereafter. (Trust me – I grew up in a farming town.) That it was somehow enshrined in the Constitution is a hilariously presentist anachronism.

Please don't confuse it with the Warren/Brandeis "Right to Privacy". The article's only relevance is its title. It proposes that one should be able to prevent publication of facts about oneself that one does not want published – a notion I assume that readers of this blog would not find attractive.

[TGGP]

The notion that a public phone booth is like a "home" seems laughable, particularly when you're relying on a founding-era case that held a carriage was not constitutionally protected from searches. The bigger issue is that early cases centered around physical property, and rights to that property being violated by people that could be sued like any other individual like violated your property rights. But Katz didn't sue any individual for the return of any property or compensation for damage. A professional law enforcement agency (which didn't exist at the founding) attached something on the outside of property he didn't own and obtained information. Any warrant (which didn't exist in that case) wouldn't protect any agent from suit because you can't sue somebody for eavesdropping on what you said in a booth.

Perhaps if legislators shared Kerr's view of the purpose of the amendment they could respond to technological changes, but that's not what they did. So instead we have judges long after the 4th was adopted coming up with new rules to compensate for a perceived deficiency among defendants in the face of law enforcement power, and as William Stuntz writes in "The Collapse of American Criminal Justice" the ultimate effect was not to actually assist defendants but instead to redirect the focus of law onto procedural hurdles (and away from actual guilt and whether a "crime" merited punishment). We have a criminal justice system so cumbersome that innocent defendants take plea bargains just to save time, just as medievals resorted to trial by combat as a workaround for their cumbersome system. Robin Hanson has a proposal ("crime vouchers") for reducing deadweight loss by having people decide for themselves how much legal protection they want, but instead the policy tug-of-war will continue with each step making the system more cumbersome.

[TGGP]

Also, if the sensitive nose of a dog detecting marijuana particles drifting out of a car in Caballes is not a "search" of the "inside", then why is a microphone outside of a booth detecting soundwaves? Or an infra-red camera detecting emissions?

[TGGP]

Regarding the hypothetical about a police car driving fast to apprehend a violator of a speed limit: it's not the car being chased which has a legal remedy against the speeding police car (unless that car runs into theirs), just as the speeder himself is not violating the rights of some specific other car on the road. The legal question is whether the driver of the police car is legally authorized to exceed the posted speed limit, and if that turns out not to be the case the result is not that the civilian speeder cannot be punished but that the officer CAN. The problem comes from assuming the exclusionary rule (which does not punish any violator, but only prevents punishment) is the proper remedy, when it did not exist at the founding and has instead been extrapolated from remedies involving the return of improperly seized property.