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.

Comments

[Stephen Lathrop]

What Would An Originalist Fourth Amendment Require?

Maybe a historian to interpret it? Not all alone, mind you, but maybe among a lineup of would-be originalist law professors. How come that never seems to happen? Is it impossible that law professors could benefit from some expert insight founded on professional principles with which they are otherwise unfamiliar?

[MatthewSlyfield]

Maybe, if and only if the historian also has a law degree. We aren’t talking about general history here, but specifically the history of the law. There’s no particular reason to think that a generic historian has any relevant expertise.

[Stephen Lathrop]

Because what happened in the past is not relevant to originalism?

[Dilan Esper]

I am with Matthew. Historians generally know nothing about how law works, and often tend to be hackish and ideological (not that lawyers aren’t, but at least there are some professional norms). I wouldn’t want a historian to come anywhere near legal adjudication.

[Alpheus W Drinkwater]

Which is about reason 40 for why originalism should never be the sole interpretive method of constitutional issues. Dependant on an accurate understanding of history, but actual trained historians not welcome.

[Orin S. Kerr]

Stephen, you may have missed the most recent panel I blogged about, before this one, with legal historian Bill Cuddihy and myself with Andrea Roth. It’s worth watching.

But you raise an important point: Why don’t non-lawyer historians generally care about the Fourth Amendment? I think the reason is that the Fourth Amendment was enacted against a backdrop of 18th century (and earlier) common law decisions. If you don’t have a legal background, or at least an interest specifically in legal history, you’re not likely to be able to make much sense of that or have any interest in it.

[gVOR08]

Same reason conservatives distrust experts generally. They can’t be trusted to come up with the right answer.

[Longtobefree]

Here’s my wild guess:
No searches except upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.

[Magister]

The originalist question is what the various terms used there meant at the time written. But it would not address advances in technology that nobody in the 18th century could have imagined.

[Brett Bellmore]

But I don’t think the term “no” has particularly changed, so this approach would be fatal to the various excuses to permit warrantless searches.

[Magister]

The question often seems to be whether something is a search, not what “no” means.

[Noscitur a sociis]

Excuses like… the plain text of the fourth amendment?

[Bob from Ohio]

“except upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.”

You quoted the warrant clause, not the search clause.

[Brett Bellmore]

That’s deliberate, obviously. He’s objecting to the modern idea that the warrant clause dictates when warrants for searches can be issued, but doesn’t imply you have to bother to get a warrant. The position being advanced is that the reason they lay out the basis for getting a warrant is that you have to have one to do a search, that they’re not optional.

The necessity of getting a warrant is how the unreasonable searches and seizures are prevented, by requiring a judge to agree that the proposed search is, indeed, reasonable.

[Bob from Ohio]

Well, the “modern” idea is correct. Not all searches require a warrant.

The search clause is not like the militia clause in 2A, it actually discusses a right separate from the warrant requirement.

[Brett Bellmore]

No, that’s true: Not all searches require a warrant, you don’t need one if you’re admitted voluntarily. Just if you want to do one despite the property owner objecting.

Would that genuinely voluntary access were the only exception the courts permitted…

[Michael P]

One assumes that “unreasonable searches and seizures” was written that way for some reason. Unfortunately, courts give the executive branch far too much credence as being reasonable.

[Noscitur a sociis]

Suppose a police officer sees me on a busy city street walk up to another person, shoot them back in the head, and conceal the gun under my shirt. It’s your position that, if I don’t consent, the police can’t stop me or secure the gun without getting warrants to do so?

[Brett Bellmore]

It’s my position that we’re discussing search warrants, not arrest warrants.

[Noscitur a sociis]

I’m not sure where you find support for that distinction in the text, but okay, the police can seize me. Once they do, it’s your position that they can’t secure my gun?

[Brett Bellmore]

Seriously, are you under the impression that warrantless searches are restricted to genuinely exigent circumstances?

I’d require a warrant the moment the cop does something an ordinary citizen couldn’t legally do. Because that’s what the warrant is: Judicial permission to do something that would otherwise be a crime.

[Noscitur a sociis]

You just said, “Would that genuinely voluntary access were the only exception the courts permitted…”! How was I supposed to know that you meant that there should also be an exception for existent circumstances?

I’d require a warrant the moment the cop does something an ordinary citizen couldn’t legally do.

1. Are there any exceptions? Or is this now a third position you’re staking out?

2. A police car is chasing a dangerous criminal down the highway. The officer illegally changes lane without signaling (and without obtaining a warrant). Has an illegal search occurred?

[Noscitur a sociis]

No searches except upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.

That seems like a somewhat surprising conclusion to me, since it’s plainly inconsistent with the text of the fourth amendment.

[Orin S. Kerr]

That would be wild indeed, given that the text of the Fourth Amendment is so different from that.

[Krayt]

King: This guy is a thorn in my side, but I just can’t whack him as that would look bad at the next meeting of the Landsraad. Start looking through his stuff for something to tag him with. Don’t worry, he’s rich and powerful — you’ll find something.

[Á àß äẞç ãþÇđ âÞ¢Đæ ǎB€Ðëf ảhf]

If I, an ordinary person, can’t do it to a police officer or judge or prosecutor, they need a warrant detailing exactly what they intend to search for and where.

If their search violates the terms of the search warrant, or if they don’t find it, or even if they do find it but lose the case, then I get one year to replay that search against them at a time of my choosing, with as much warning as they gave me.

[Magister]

“get one year to replay that search against them”

The judge’s chambers, the police station or FBI office, or their individual residences, or their persons? Would you be limited to searching for the same things they searched for? Would you have to persuade a judge that the search was improper, asserting so by oath or affirmation? Do they get another search of your person, house, papers or effects if you do an improper search?

I can’t decide if this is crazier than sovereign citizen stuff.

[ducksalad]

When he said “even if they find it but lose the case” it’s pretty clear that he meant a search that was found to improper by a court. And his “replay” search is intended to teach them a lesson, not to find anything, so your last question doesn’t make sense.

Personally I don’t believe in the repay-in-kind theory of justice, I’m more into deterrence and prevention. I would say the penalty for a known-or-should-have-known illegal search should have two parts:

(a) the same penalty that would be applied to an ordinary citizen who did the same physical act carrying the same weapons (e..g typically penitentiary time for forcibly entering someone’s house carrying a handgun, but with the possibility of probation or a suspended sentence), and

(b) permanent disqualification from being an officer of the government, in any form.

How’s that? And allowing a private special prosecutor as Bellmore says. Of course the accused officer would still be entitled to full due process, and if that prosecutor couldn’t persuade a grand jury up front then the officer wouldn’t be inconvenienced at all.

[Magister]

From the context, it seems more likely that “find it but lose the case” means they found the evidence but it was insufficient to convict, not that they lost a case brought against the legitimacy of the search. If the latter, then the court that so found could order appropriate compensation, but probably not a retaliatory search.

There would have to be some limits for the retaliatory search, although it’s entirely possible it was endorsing “any number of eyes for an eye” payback. Having no limits on the search would permit a search that smashes everything that might conceal something incriminating.

I would be satisfied with a significant scaling back if not elimination of qualified immunity.

Executing a flawed search warrant is really very different from breaking and entering, so (a) as a general principle seems excessive. The people responsible for the flaw may not be the ones who execute the search warrant. Certainly intentionally creating a bad search warrant should be a serious crime all by itself.

I would agree with a limited form of (b) for law enforcement specifically: some mechanism for disqualifying abusive police dismissed from one position for cause from getting a law enforcement job elsewhere would be welcome. The current system seems to resemble the Catholic church shuffling sexual abuser priests around.

[Á àß äẞç ãþÇđ âÞ¢Đæ ǎB€Ðëf ảhf]

Thank you for that, a more polite explanation that I was about to give 🙂

Your answer, and Brett’s similar answer, are probably a better long term solution, but the real problem is that government prosecutors don’t like prosecuting government cops, and government judges don’t like convicting government cops. They have to live with each other once all the temporary visitors have concluded the trial and gone away. I imagine that if warrant abuse were taken seriously enough as you and Brett suggest, judges would recognize a lot less warrant abuse.

[Magister]

Just venting, then. Hard to tell in comments how serious someone is. Sorry for a bit of an overreaction.

There may be penalties for the most egregious violations by police, but they generally aren’t imposed or even attempted, except for lawsuits that at best result in monetary awards that punish a bunch of taxpayers. Beyond that, problems include over-militarized police, police closing ranks to protect the worst among them, and the abuse of qualified immunity. I’d prefer to try fixing those things before opening the private prosecution can of worms.

[Brett Bellmore]

I think a better approach might be permitting private prosecution for the break in and robbery. Since a ‘search’ that doesn’t legally qualify IS just the government committing a crime against the subject of the search.

My understanding is that one of the original purposes of the warrant was actually to demonstrate to the target of the search that the search actually was legally sanctioned, so that they couldn’t just treat the attempt as burglary and shoot the officer.

[Á àß äẞç ãþÇđ âÞ¢Đæ ǎB€Ðëf ảhf]

What is lacking from most judicial systems is any kind of personal responsibility for everyone except the criminals. My quick description is just one of many schemes possible for restoring individual accountability. Cops who propose warrants, judges who approve them, cops who execute them, and prosecutors who encourage or refuse to prosecute warrant abuse — none have any real personal liability. Even is absolute and qualified immunity were eliminated, governments pay civil suit restitution, not judges and cops and prosecutors.

Treating my scheme as any kind of detailed actual plan is seeing trees where the forest hasn’t been planted yet. There are lots of versions possible, plenty of imaginable variations, and a zillion other ideas. More than anything else, I was trying to point out the lack of personal accountability, and that incentives matter. Getting rid of QI and AI, or just weakening them, would be a good step, but won’t make a lot of difference if the results do not apply personally. Requiring prosecutors, judges, and cops to have malpractice insurance is another idea, and the high cost of premiums for bad actors puts some personal liability into the judicial system. Allowing private prosecution eliminates a lot of cronyism. Loser pays, for all reasonable costs, including travel expenses, lost wages, hiring investigators, and everything which would not have been spent absent the case, and applicable to government prosecutors too, would go a long way towards eliminating bogus charges. Requiring all charges to be prosecuted, with acquitted charges subtracting from convicted charges, would make plea deals a lot fairer.

The list goes on and on.

Brainstorming works best when ideas are tossed out as fast as possible, without rebuttal distractions. Those whose first reaction is “how stupid! give me details!” don’t understand brainstorming.

[Noscitur a sociis]

Is this your suggestion of the correct originalist interpretation? If so, what’s your basis for concluding that the probable cause requirement in the text of the fourth amendment amounts to a requirement for absolute certainty not only that the evidence will be found, but that someone (the owner?) will be convicted of a crime—a standard never otherwise required in American law, including in a criminal trial itself?

[ducksalad]

Seem to remember reading about cases in the 19th century where lawmen were charged assault for frisking someone without probable cause. Hard to imagine that happening now.

[MaddogEngineer]

As actual originalists have pointed out (as represented by Michael Rappaport’s blog), returning to an originalist understanding of important aspects of constitutional jurisprudence is sometimes complicated by a long series of precedence embedded in law and practice. It’s unreasonable to expect a (textual) originalists to apply that philosophy to every case that comes before a court. I think that’s certainly the case with Fourth Amendment precedent (as it is with the First).

Even Rehnquist caved to this reality when he wrote the opinion in Dickerson reaffirming Miranda warnings, despite his opposition to the original decision.

I’m not opposed to thinking about an originalist Fourth Amendment. I also think it is of limited value beyond historical insights.

[Brett Bellmore]

Yeah, I’ve made this point occasionally: The real problem with originalism is that it came to power too late: It was a reaction to living constitutionalism, but the living constitutionalists piled up so much precedent before the originalists were in a position to start rolling things back, that most of the originalists have suffered failures of nerve.

So now you get faint hearted originalists inventing excuses for not doing what their doctrine clearly says they ought to. “Liquidation”, for instance. And with every excuse, the formerly clear difference between originalism and living constitutionalism gets harder to make out.

[Sarcastr0]

Reactionary movements don’t have a very good reputation. There’s a reason originalism doesn’t sell itself like that.

[Brett Bellmore]

“Reactionary movements don’t have a very good reputation.”

Not unless they succeed, no. The losers always get bad press.

[Artifex]

“Reactionary movements don’t have a very good reputation.”

This is sort of a tautology isn’t it ? Why are they labeled as reactionary in the first place ? This is probably because some dishonest sleezebag thinks a tagging nice disparaging label settles the narrative nicely and since he can’t actually argue concepts, it’s best just to throw shade and claim victory. It goes right along with other words that generally indicate dishonesty like “red baiting”, “conspiracy” or “telepathy”. So a claimed “bad reputation” should come as little surprise.

Consider some concepts that are considered reactionary: Equality under the law. A colorblind society. Traditional negative rights. Being able to discern a man from a woman. Honesty.

Doesn’t seem like a bad list to me !

[Sarcastr0]

How to tell if something is reactionary? Here’s a clue: “It was a reaction to living constitutionalism.”

My telepathy is *incredible.*

[Artifex]

“It was a reaction to living constitutionalism.”

More to the point it is a motte and bailey. On one hand the dishonest can claim it is the utterly trivial “reaction to something”. In case why is it necessary to even mention it ?. On the other hand it can be used as a simple slur. Do you see any discussion of “why” it is a bad thing ? Nope. Therefore, pretty clearly a simple slur.

My telepathy is *incredible.*

Indeed ! Everyone on this blog is amazed at how accurately you represent their opinion. 100% accuracy with everyone noting that Sarcastro perfect explained their position. Your accuracy is truly indicative of your honesty !

[Sarcastr0]

A movement that is defined as a reaction to something, good bad or other, is a reactionary movement, by some definitions.

By others, a movement that is defined as a reaction to political or social liberalization or reform is reactionary.

Either way, Brett’s stumbled into calling originalism reactionary.
There is no motte and baily, there are Brett’s words, and definitions.

[post hoc ergo propter hoc]

The real problem with originalism is that it came to power too late: It was a reaction to living constitutionalism,

originalism was always used, since john marshall. see gibbons v ogden, original meaning of ‘commerce’ in commerce clause. it’s not new at all. what is new is saying it’s the best and only tool a court ever needs to use. it’s a good tool sometimes and a terrible one at other times, depending on the case and the legal question.

[Brett Bellmore]

What I mean is “originalism” as an explicit doctrine with a name. Prior to living constitutionalism, it didn’t have to be an explicit doctrine, since nobody had yet advanced the idea that it was legitimate to just pull new meanings for the law out of your ass. It would have been just called “reading”.

But that idea took the judiciary by storm, since the people selecting the judges really liked what the judges they picked pulled out of said orifice. Organizing the pushback against the interest of politicians took a long while.

[Sarcastr0]

Originalism’s history:

-Started as a nameless hostility to the Warren Court.

-Became a reactionary political movement, disguised as an academic movement. “Oh, we have to end this popular precedent – it’s our newfound legal principle of orignalism!”

-That academic movement became a real thing, but of course utterly out of step with the reactionary political movement, but with a much deeper connection to our actual legal history and procedure, versus arriving fully formed in the 1980s full of overdetermined Founders’ intents.

[bernard11]

You left out, “Started as ‘strict constructionism,’ but changed its name because the phrase was, accurately, associated with segregation and general opposition to civil rights.”

The change was a marketing move.

[Rev. Arthur L. Kirkland]

Originalism — still less popular, less interesting, less useful, less scholarly, and less consequential than Kim Kardashian (with roughly the same lifespan), but, as conservatives love to mention . . . probably a few months older than Kim Kardashian!

[David Nieporent]

It wasn’t clever — or correct — the first 1,500 times you said it.