Lawrence Rosenthal is a professor at Chapman University’s Dale E. Fowler School of Law.

The late Justice Antonin Scalia was, famously, an originalist; he believed that the Constitution should be applied today as it would have been understood in the founding era. Like most originalists, he argued that any effort to attribute evolving meaning to constitutional text enmeshed the judiciary in what were essentially policy judgments. Although he acknowledged that the Constitution contained much that is “abstract and general rather than specific and concrete,” his view was that “the abstract and general terms, like the concrete and particular ones, are meant to nail down current rights . . . . [T]hey are abstract and general references to extant rights and freedoms possessed under the then-current regime.” Justice Scalia’s approach to the Fourth Amendment’s prohibition on “unreasonable searches and seizures” provides a useful illustration.

Prior to Justice Scalia’s service on the Court, perhaps the high-water mark of Fourth Amendment originalism was the 1928 decision in Olmstead v. United States. In that case, evidence of a conspiracy to distribute illegal liquor during Prohibition was obtained by wiretapping, “without trespass upon any property of the defendants.” The Court held that the wiretap did not violate the Fourth Amendment because it involved no search or seizure of Roy Olmstead’s person, house, papers, or effects. Chief Justice William Taft’s opinion of the Court reasoned: “The language of the amendment cannot be extended and expanded to include telephone wires, reaching to the whole world from the defendant’s house or office.” He added, quoting his earlier opinion in Carroll v. United States: “The Fourth Amendment is to be construed in the light of what was deemed an unreasonable search and seizure when it was adopted, and in a manner which will conserve public interests, as well as the interest and rights of individual citizens.”

Justice Louis Brandeis’s Olmstead dissent, in contrast, is a classic example of Fourth Amendment originalism’s methodological rival – Fourth Amendment pragmatism. Justice Brandeis wrote: “Clauses guaranteeing individual protection against specific abuses of power, must have a similar capacity of adaptation to the changing world.” He concluded: “[E]very unjustifiable intrusion by the Government upon the privacy of the individual, whatever the means employed, must be deemed a violation of the Fourth Amendment.” Justice Brandeis concluded that wiretapping Olmstead’s phone violated the Fourth Amendment.

In the Warren Court, Fourth Amendment pragmatism was triumphant. In Katz v. United States, for example, the Court overruled Olmstead, holding: “The Government’s activities in electronically listening to and recording the petitioner’s words violated the privacy upon which he justifiably relied while using the telephone booth, and thus constituted a ‘search and seizure’ within the meaning of the Fourth Amendment.”

The Warren Court’s Fourth Amendment pragmatism, however, did not always produce expanded constitutional protection. After all, Justice Brandeis’s conception that only “unjustifiable intrusion” violated the Fourth Amendment implied that the Court had to balance privacy against law-enforcement interests, and sometimes the latter could justify an expansion of search-and-seizure authority. For example, in the 1968 decision in Terry v. Ohio, Chief Justice Earl Warren’s opinion blessed investigative stop-and-frisk absent probable cause to arrest, based on a reasonable-suspicion standard without founding-era precedent.

By 1985 – the year before Justice Scalia joined the Court – Fourth Amendment originalism was in full retreat. That year, in Tennessee v. Garner, the Court held that the founding-era rule permitting the use of deadly force against all fleeing felons, regardless of dangerousness, violated the Fourth Amendment. After “balancing the extent of the intrusion against the need for it,” Justice Byron White concluded: “It is not better that all felony suspects die than that they escape.”

Justice Scalia abhorred the ahistorical character of pragmatic balancing. In his 1993 concurring opinion in Minnesota v. Dickerson, for example, Justice Scalia complained that Terry “made no serious attempt to determine compliance with traditional standards, but rather, according to the style of this Court at the time, simply adjudged that such a search was ‘reasonable’ by current estimates.” Justice Scalia argued for a Fourth Amendment jurisprudence that made founding-era practice the touchstone for assessing constitutionality, with considerable success. By 2008, eight Justices joined his opinion in Virginia v. Moore, which stated: “In determining whether a search or seizure is reasonable, we begin with history. We look to the statutes and the common law of the founding era to determine the norms that the Fourth Amendment was meant to preserve.”

Fourth Amendment originalism encounters serious objections. Founding-era practice and understandings are inevitably a function of historical context. Olmstead was correct that nontrespassory surveillance was generally not regarded as a search or seizure with the Fourth Amendment’s ambit in the founding era, but, of course, neither the telephone nor the wiretap had been invented. If they had existed, perhaps the Framers would have regarded a physical intrusion on property as unnecessary for constitutional protection. Trying to apply founding-era rules outside their context created problems that Justice Scalia tried – with limited success – to overcome.

In 2001, for example, in Kyllo v. United States, Justice Scalia wrote an opinion concluding that the use by federal agents of a thermal imaging device to scan the exterior of a house to identify “the relative heat of various rooms in the house” was a “search” of the house within the meaning of the Fourth Amendment, using an originalist argument: “[T]here is a ready criterion, with roots deep in the common law, of the minimal expectation of privacy that exists, and that is acknowledged to be reasonable. To withdraw protection of this minimum expectation would be to permit police technology to erode the privacy guaranteed by the Fourth Amendment.” He concluded: “[O]btaining by sense-enhancing technology any information regarding the interior of the home that could not have otherwise been obtained without physical intrusion . . . constitutes a search.”

There is reason to doubt the soundness of this approach. In the founding era, a search or seizure required a physical trespass, which necessarily involved healthy doses of both force and coercion not present in covert electronic surveillance. Perhaps, in the founding era, acquiring information about “the relative heat of various rooms in the house” through covert surveillance would have been regarded as innocuous, as Justice John Paul Stevens argued in his Kyllo dissent. One can agree or disagree with the outcome in Kyllo, but consulting the expectations of the founding generation offers little meaningful guidance. The founding generation never faced any fairly analogous problem.

Or, consider the 2012 decision in United States v. Jones. Justice Scalia wrote an opinion holding that attaching an electronic tracking device to the undercarriage of a vehicle to track its movements was a “search” within the meaning of the Fourth Amendment, reasoning that the government undertook a “search” because, in the founding era, attaching the tracking device to the vehicle would have been regarded as a “trespass” involving “an attempt to find something or to obtain information.” In his concurrence, however, Justice Samuel Alito rightly observed that “it is it is almost impossible to think of late–18th-century situations that are analogous to what took place in this case” except, perhaps, “a case in which a constable secreted himself somewhere in a coach and remained there for a period of time in order to monitor the movements of the coach’s owner.” Even then, he added, “this would have required either a gigantic coach, a very tiny constable, or both.” In the face of this onslaught, Justice Scalia could only disclaim reliance on founding-era practice or understandings: “[I]t is quite irrelevant whether there was an 18th-century analog.”

As Jones makes clear, when founding-era understandings are divorced from their context, Fourth Amendment originalism devolves into a kind of libertarianism that endeavors to limit the powers of government to those extant in the late eighteenth century. Those hostile to governmental power may find this outcome pleasing, but one cannot pretend that it is based on a founding-era judgment about the use of thermal imagers, electronic tracking devices, or the like. We have no reliable way of knowing what the founding generation would have made of any of these techniques, unaccompanied as they were by the kind of force and coercion that inhered in founding-era search and seizure.

And, consider Terry. In the founding era, there was nothing like stop-and-frisk absent probable cause to arrest, but the relevant historical evidence is complex. For one thing, “nightwalker” statutes authorizing the arrest of “suspicious” persons were ubiquitous. For another, in the founding era, there was nothing resembling modern police forces with investigative responsibilities. They emerged in the nineteenth century only when it became clear that the traditional constabulary was inadequate to the demands of an urbanizing nation. Did the founding generation understand the Fourth Amendment to prohibit the development of preventative policing in light of changing conditions? We cannot know.

Justice Scalia’s Fourth Amendment originalism hangs by a thread. Only a bare majority joined Justice Scalia’s opinion in Jones, and one of the five, Justice Sonia Sotomayor, wrote a concurrence expressing sympathy for the view that the Fourth Amendment should apply to investigative techniques that expand the government’s ability to undertake surveillance, without reference to founding-era practice or understandings. Sometimes Justice Scalia himself seemed to acknowledge the difficulty of applying founding-era doctrine to contemporary contexts, as when, in 2014, he joined a unanimous Court in Riley v. California in holding that information in cellphones could not be retrieved without a warrant, despite the traditional rule that permitted police to search an arrestee’s person and effects incident to arrest.

Fourth Amendment jurisprudence is at a crossroads. If Justice Scalia’s replacement adheres to originalism, a narrow majority may continue along that path, and the Court will struggle with the difficulties of applying founding-era rules outside their historical context. A replacement sympathetic to Justice Brandeis’s pragmatism, however, would follow a far different course.

Notably, this split is not along conventional liberal/conservative lines. Justice Scalia’s originalism could produce what seemed like liberal results, as in Kyllo and Jones, or what seemed like conservative ones, as when he wrote an opinion in Whren v. United States holding that racial discrimination in traffic stops did not violate the Fourth Amendment. A liberal pragmatist, conversely, might sometimes produce what seem like conservative results. For example, liberal pragmatism might conclude that imposing an invariable requirement that the government obtain a warrant based on probable cause before it can review records of financial institutions might cripple the government’s regulatory powers and insulate broad swaths of white-collar crime from detection, or that a retreat from Terry might produce an unacceptable risk of an urban crime wave.

Whether a future Court embraces Fourth Amendment originalism portends less for how any particular case will be decided than it does for the methodology of constitutional adjudication. The next Justice will decide whether the Court will struggle overtly with the difficult balance between liberty and order, or continue the even more fraught business of trying to apply eighteenth-century legal doctrine and expectations to twenty-first-century problems.

Posted in The Court after Scalia, Featured

Recommended Citation: Lawrence Rosenthal, The Court after Scalia: Fourth Amendment jurisprudence at a crossroads, SCOTUSblog (Sep. 9, 2016, 5:31 PM), http://www.scotusblog.com/2016/09/the-court-after-scalia-fourth-amendment-jurisprudence-at-a-crossroads/