The Volokh Conspiracy

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What Would An Originalist Fourth Amendment Require?

A panel debate.


I was recently a panelist for a very interesting discussion of Fourth Amendment originalism hosted by the University of Virginia student chapter of the Federalist Society.  Our focus was the original public understanding of Fourth Amendment "searches," and the panel brought together a group of scholars that have written recently on the topic.

Here are the panelists, with a link to their relevant articles:

The moderator was Professor Richard Re, author of The Positive Law Floor in the Harvard Law Review Forum. 

The first two panelists were Daniel Epps and Danielle D'Onfro, co-authors of The Fourth Amendment and General Law, recently published in the Yale Law Journal.

I spoke next, making arguments that reflected my recent article Katz as Originalism in the Duke Law Journal.

Last up was James Y. Stern, co-author (with our own Will Baude) of The Positive Law Model of the Fourth Amendment in the Harvard Law Review.

I thought it was a really interesting discussion, with lots of respectful disagreement.  The panel also wins the 2023 Award for the Panel with the Highest Percentage of Former Kennedy Clerks, but from what I understand that is mostly just a reflection of who is writing on this topic.