An Original Fourth Amendment Based on Property not Privacy
The Fourth Amendment jurisprudence today is a mess. Based on the subjective “reasonable expectation of privacy” standard, the Supreme Court’s decisions in Fourth Amendment cases over the past half-century have been a hodgepodge of confusing and inconsistent rulings.
The main issue is that the Fourth Amendment should not be a question about privacy but rather about property. Privacy is merely the effect of the Fourth Amendment, not the question to be asked during a Fourth Amendment decision. Instead, we need to reign in the living constitutionalist Court and reason about the Fourth Amendment from first principles.
Fortunately, originalism gives us clear “neutral principles” that show that the Fourth Amendment is grounded in property. We first illustrate the problems with a Fourth Amendment based on privacy, including issues of judicial restraint and clarity of precedence in rulings. We then explain the history behind the original intent and meaning of the Fourth Amendment based on the English experience, the colonial experience, and the drafting of the Fourth Amendment. Finally, we detail several recent Supreme Court cases that are more grounded in the original meaning of the Fourth Amendment.
The problem with privacy
The present-day Fourth Amendment jurisprudence stems from the landmark 1967 Supreme Court case Katz v. United States. The case concerned the FBI attaching a recording device to the exterior of a phone booth in order to eavesdrop on the conversation of suspected illegal gambler Charles Katz. In a 7–1 decision, the Court ruled that the wiretap counted as a search that required a warrant under the Fourth Amendment.
But more importantly, the Court’s majority opinion extended the Fourth Amendment protection from unreasonable searches and seizures to protect individuals with a “reasonable expectation of privacy.” Katz was the first case that introduced the notion of privacy into the Fourth Amendment jurisprudence, despite the fact that the word “privacy” never appears in the Fourth Amendment or even the entire Bill of Rights and Constitution. (Later we’ll show how privacy is also not a reasonable inference from the text of the Fourth Amendment.)
Katz epitomizes the living constitutionalist excess of the Warren court. First, it is unclear whether “reasonable expectation of privacy” is supposed to pose an empirical question (what privacy expectations people actually have) or a normative question (what privacy expectations people should have). Second, in the half century since Katz, the subjective “reasonable expectation of privacy” standard has eroded judicial restraint and created inconsistencies in rulings.
Separation of powers and judicial restraint
From the standpoint of constitutional theory, legislatures should be making the laws while courts should be interpreting the laws.
Legislators are responsive to their constituents and have institutional resources designed to help them discern and enact majoritarian preferences. Politically insulated judges come armed with only the attorneys’ briefs, a few law clerks, and their own idiosyncratic experiences. They are hardly the representative group one would expect to be making empirical or normative judgments for hundreds of millions of people. At best, courts could bring in expert witnesses about the habits and tastes of the general public, like in trademark or antitrust cases, but the courts have shown no desire to do so in privacy cases.
Unsurprisingly, judicial judgments often fail to reflect public views. Over the years, judges have constructed a freestanding notion of “reasonable expectation of privacy” based on their own subjective judgements.
Take Florida v. Riley, for instance, which ruled that a helicopter hovering 400 feet above a person’s property invades no reasonable expectation of privacy. Try doing that on one of your neighbors. Or California v. Greenwood, which ruled that a person has no reasonable expectation of privacy in the garbage he puts out for collection. Yet most people spotting a stranger rummaging through their garbage wouldn’t think they lacked reasonable grounds to confront the rummager.
Prominent judges have called for legislative definitions of privacy rights. Justice Alito has repeatedly called for legislative guidance in light of new technologies, saying in United States v. Jones that:
In circumstances involving dramatic technological change, the best solution to privacy concerns may be legislative. A legislative body is well situated to gauge changing public attitudes, to draw detailed lines, and to balance privacy and public safety in a comprehensive way.
Clarity and adaptability
But when courts are forced to construct a freestanding law of privacy based on the “reasonable expectation of privacy” standard, it is difficult to figure out how to apply this standard to new situations.
For example, is it a search to eavesdrop on a conversation with a long-range microphone? Tap a phone line? Trick someone into revealing information? Examine the contents of a garbage bag left on the street for pickup? Monitor the heat emitted from a person’s house from the street with a thermal-imaging device? Observe the activities in a person’s backyard from a helicopter or airplane? Surreptitiously follow a car around in public? Install a GPS tracking device on a car to monitor its movements? Test the chemical composition of a substance? Use a trained dog to sniff out whether there are illegal drugs inside a suitcase, a car, or a house?
In each of these cases, the Supreme Court decided to rule narrowly based on the specific scenario. But the problem with these narrow rulings is that the Supreme Court would have to keep on taking new cases in light of new surveillance technologies or techniques — such as license plate readers, facial recognition cameras, and DNA scanners — since there aren’t clear precedence for lower courts to defer to. A hodgepodge of narrow decisions undermines the whole judicial principle of stare decisis.
Thus, in the words of Robert Bork, we need a consistent and deterministic “neutral principle” for the Fourth Amendment. It is clear that the “reasonable expectation of privacy” standard is not such “neutral principle.” Instead, we turn to originalism as a method of interpreting the Fourth Amendment in order to find such “neutral principle.”
Fourth Amendment originalism
There are two theories of originalism: original intent and original meaning. The original intent theory holds that the interpretation of the Constitution should be consistent with what was meant by those who drafted and ratified it. The original meaning theory holds that the interpretation of the Constitution should be based on what reasonable people living at the time of its adoption would have understood the ordinary meaning of the text to be.
Original intent
The original intent of the Fourth Amendment was not to protect one’s privacy. It was meant to protect one’s property from unreasonable searches and seizures, not to prevent the disclosure of personal secrets.
The English experience
The English common law embraced the premise that an Englishman’s home was his castle. The English Jurist Sir Edward Coke famously wrote in 1604 that “a mans house is his castle, & domus sua cuique est tutissimum refugium [and each man’s home is his safest refuge].”
For centuries, the common law prohibited the Crown from forcibly entering a home to conduct a search or seizure without a specific warrant, outside of narrow circumstances. In the pursuit of a known felon, officers could search the felon on the spot and seize any weapons or stolen goods to ensure the safety of those making the arrest and preserve evidence for trial. Alternatively, should the felon flee, then officers could breach the walls of the felon’s house and seize him.
The Crown’s efforts to get around the common law by drafting general warrants for indiscriminate searches and seizures were met with objection. General warrants lacked specificity — the person to be arrested, the place to be searched, or evidence of the crime for which the individual or information was being sought. General warrants stood as the foremost example of the infringement of individual rights. The right to property could not be secure if the Crown could subject any property to search and subsequently construct charges against the owner.
The English cases Wilkes v. Wood (1763) and Entick v. Carrington (1765) are often cited in understanding the original intent of the Fourth Amendment.
The First case, Wilkes v. Wood, concerned the Crown ordering the search of John Wilkes’s home, who was suspected of publishing a series of seditious papers. Wilkes sued the King’s messengers for trespassing on his property. The Chief Justice Charles Pratt ruled in Wilkes’s favor. Pratt condemned the Wilkes search as “totally subversive of the liberty of the subject” and likely to “affect the person and property of every man in this kingdom.”
The second case, Entick v. Carrington, also concerned the Crown sending messengers into a person’s home to look for evidence of sedition. Like Wilkes, John Entick sued and prevailed before the English court. The common law rejected the proposition that the Crown could enter its subjects’ homes at will. Pratt observed that “the great end, for which men entered into society, was to secure their property. Every invasion of private property, be it ever so minute, is a trespass.” Moreover, the protection of private property extended to letters, papers, and documents. As Pratt explained, “Papers are the owner’s goods and chattels; they are his dearest property; and so far from enduring a seizure, that they will hardly bear an inspection.” This power to search would “destroy all the comforts of society; for papers are often the dearest property a man can have.”
It’s important to recognize that these cases dealt with the infringement on property, not privacy. These cases contributed to the longstanding common law that trespass on one’s property was the central test for a search, and that the Crown needed a specific warrant in order to search and seize one’s property.
Both incidents were widely discussed in America and are thought to have played a pivotal role in the drafting of the Fourth Amendment. The Supreme Court even claimed in the 1886 case Boyd v. United States that:
As every American statesmen, during our revolutionary and formative period as a nation, was undoubtedly familiar with this monument of English freedom, and considered it the true and ultimate expression of constitutional law, it may be confidently asserted that its propositions were in the minds of those who framed the Fourth Amendment to the Constitution, and were considered as sufficiently explanatory of what was meant by unreasonable searches and seizures.
The colonial experience
During the colonial era, officials of the Crown increasingly used writs of assistance to intrude on the sanctity of the home, which spurred the colonists to resist British rule. Writs of assistance were a form of general warrants in which government officials did not need to specify the precise place or person to be searched nor provide evidence of the particular crime suspected.
For instance, the Townshend Act of 1767 included a provision that gave customs officers the authority “to enter houses or warehouses, to search for and seize goods prohibited to be imported or exported or for which any duties are payable, or ought to have been paid.” The Act provided courts the authority to issue writs of assistance to customs officers, which gave them “a continuous license and authority” to break and enter “wherever they suspected uncustomed goods to be.”
Writs of assistance gave customs officers a sweeping legal privilege. Anyone served with a writ was forced to comply, and officers could force third-parties to help them in their search. Because the writs acted as legal instruments, no officers could be held accountable in court. The number of promiscuous searches and seizures increased drastically, with violence frequently accompanying the exercise of the powers.
The colonists rebelled against the abuses of customs officers and the violation of their most basic English right: that a person is to be secure in his home. The legitimacy of the writs was attacked most famously by the Massachusetts lawyer James Otis, who argued that the “writ, if it should be declared legal, would totally annihilate” the “freedom of one’s own house.” Directed against all persons, “everyone with this writ may be a tyrant.”
In response to the controversies over the writs of assistance, Delaware, Maryland, Massachusetts, New Hampshire, North Carolina, Pennsylvania, Vermont, and Virginia later explicitly prohibited general warrants in their state constitutions during the Articles of Confederation era. For instance, Part I Article XIV of the Massachusetts Constitution stated:
Every subject has a right to be secure from all unreasonable searches, and seizures of his person, his houses, his papers, and all his possessions. All warrants, therefore, are contrary to this right, if the cause or foundation of them be not previously supported by oath or affirmation; and if the order in the warrant to a civil officer, to make search in suspected places, or to arrest one or more suspected persons, or to seize their property, be not accompanied with a special designation of the persons or objects of search, arrest, or seizure: and no warrant ought to be issued but in cases, and with the formalities, prescribed by the laws.
The state constitutions played a critical role in the early American republic. First, they made it clear that the use of general warrants ran contrary to the common law. Second, they turned the generalized grievances into a written guarantee against unreasonable searches and seizures of one’s property. Third, they elevated the status of general warrants as contrary to the common law to a constitutional tenet, ensuring that any subsequent evolution of the common law would refrain from infringing upon such right.
Drafting the Fourth Amendment
A prohibition on unreasonable searches and seizures was widely discussed during the ratification debates after the Constitutional Convention. Brutus explained that “for the security of liberty, it has been declared … that all warrants, without oath or affirmation, to search suspected places, or seize any person, his papers or property, are grievous and oppressive.” He further argued that the right against unreasonable searches and seizures was “as necessary under the general government as under that of the individual states.”
Many of the states ratified the Constitution on the condition that it would later be amended to include a Bill of Rights. In 1789, James Madison was tasked with drafting the initial text of the Bill of Rights. Madison’s first draft of the Fourth Amendment generally followed the contours of the Massachusetts Constitution:
The rights of the people to be secured in their persons, their houses, their papers, and their other property, from all unreasonable searches and seizures, shall not be violated by warrants issued without probable cause, supported by oath or affirmation, or not particularly describing the places to be searched, or the persons or things to be seized.
The Committee of Eleven, chaired by Delaware’s John Vining, and the House of Representatives made several revisions to the text during the debates. Most notably, the Committee changed Madison’s language that protected “persons, houses, papers, and other property,” to “persons, houses, papers, and effects.” Although the word “property” never appears in the final text of the Fourth Amendment, it is explicitly clear that Madison intended for the protection of one’s property. (In the next section on original meaning, we’ll also see how “effects” implies “property.”)
The major debates over the passage of the Fourth Amendment were centered on property and its protection from unreasonable searches and seizures. There is no evidence in the Congressional records of any discussion about privacy being an integral part of the Fourth Amendment.
Thus, the framers’ original intent — including common law from the English and colonial experience — of the Fourth Amendment was to prevent government officials from intruding upon one’s property unless officials could present evidence, under oath to a magistrate, of a suspected crime. The court would then have to issue a warrant, particularly describing the place to be searched and the individual on whom the warrant would be served.
Original meaning
The original meaning theory of originalism also leads to a Fourth Amendment interpretation based on property, not privacy. A reasonable person living in the eighteenth century would have found property implied in particular places and things — “persons, houses, papers, and effects” — and against particular threats — “unreasonable searches and seizures.”
For property implied in particular places and things, Justice Scalia explained in his majority opinion in United States v. Jones that:
The text of the Fourth Amendment reflects its close connection to property, since otherwise it would have referred simply to “the right of the people to be secure against unreasonable searches and seizures”; the phrase “in their persons, houses, papers, and effects” would have been superfluous.
The key word in the phrase “persons, houses, papers, and effects” is “effects.” The term “effects” carried a broader connotation of property during the eighteenth century, as it was commonly used to denote commercial goods. Dictionarium Britannicum from 1730 defined “effects” as “the goods of a merchant, tradesman, &c.” and A Dictionary of the English Language from 1755 defined “effects” as “Goods; moveables.”
In addition, during the debates over boycotting British imports in 1769, the imports were usually referred to as “goods,” “wares,” “manufactures,” “merchandizes,” or “commodities,” but were occasionally referred to as “effects.” Similarly, in a 1782 Pennsylvania statute authorizing seizures of “Goods, Wares, and Merchandize” or “Goods and Property” imported from Britain during the Revolutionary War, one provision in the statute referred to the above items as “the Goods or Effects seized.”
Thus, the available linguistic evidence suggests that “persons, houses, papers, and effects” was understood to provide clear protection for not only personal property and possessions, but also commercial items and goods.
For property implied against particular threats of “unreasonable searches and seizures,” the key word in such phrase is “unreasonable.” What “unreasonable” meant in the eighteenth century was “against reason,” which translated into “against the reason of the common law.” A New Law-Dictionary from 1751 defined “common law” as “founded upon Reason; and is said to be the Perfection of Reason. … It has been observed [that Reason] is the very Life of the Law; and that what is contrary to it, is unlawful.”
Thus, by leading with the word “unreasonable,” the “unreasonable searches and seizures” clause invoked a broader prohibition against general warrants and warrantless trespass of one’s property, which was recognized as against the common law from the English and colonial experience.
A Fourth Amendment based on property
As we have seen so far, there is plenty of historical evidence to show that the original intent and meaning of the Fourth Amendment was to protect property, not privacy.
Given how much the “reasonable expectation of privacy” standard has caused the Fourth Amendment jurisprudence today to deviate far from its original intent and meaning, several recent Supreme Court decisions over the last few years have suggested a property renaissance in the Fourth Amendment jurisprudence, holding that property can operate as a supplement to the Katz standard.
The first example of the Court’s strong stance on property was United States v. Jones (2012), which held that the surreptitious installation of a GPS tracking device on a car was a search. Justice Scalia’s majority opinion for the Court concluded that affixing the GPS device to the car was a physical intrusion, that a physical intrusion was a trespass-like act, and that the Fourth Amendment protects against trespass-like acts:
For most of our history the Fourth Amendment was understood to embody a particular concern for government trespass upon the areas (“persons, houses, papers, and effects”) it enumerates. The Government physically occupied private property for the purpose of obtaining information. We have no doubt that such a physical intrusion would have been considered a “search” within the meaning of the Fourth Amendment when it was adopted.
To arrive at such conclusion, Scalia quoted the English case Entick v. Carrington, which we explained earlier as an important precedence in the English common law, in his decision:
In that case, Lord Camden expressed in plain terms the significance of property rights in search-and-seizure analysis: “Our law holds the property of every man so sacred, that no man can set his foot upon his neighbour’s close without his leave; if he does he is a trespasser, though he does no damage at all; if he will tread upon his neighbour’s ground, he must justify it by law.”
In the second property case, Florida v. Jardines (2013), the Court again concluded that a search occurred when a police officer entered the front porch of a Florida home with a drug-sniffing dog and used the dog to detect drugs inside the home. According to Scalia’s majority opinion, the key was the physical intrusion onto the homeowner’s property without permission. While the public generally had an “implied license” to come onto one’s porch for neighborly purposes, the license did not extend to poking around with a dog. Again, Justice Scalia turned to originalism to explain his reasoning:
At the Amendment’s “very core” stands “the right of a man to retreat into his own home and there be free from unreasonable governmental intrusion.” When “the Government obtains information by physically intruding” on persons, houses, papers, or effects, “a ‘search’ within the original meaning of the Fourth Amendment” has “undoubtedly occurred.”
The most interesting part of Scalia’s opinion was his critique of the “reasonable expectation of privacy” standard. He explained that an originalist interpretation of the Fourth Amendment based on property avoided the difficulty of deciding on a subjective notion of privacy:
We need not decide whether the officers’ investigation of Jardines’ home violated his expectation of privacy under Katz. One virtue of the Fourth Amendment’s property-rights baseline is that it keeps easy cases easy. That the officers learned what they learned only by physically intruding on Jardines’ property to gather evidence is enough to establish that a search occurred.
The last case centered on a property was the landmark decision Carpenter v. United States (2018) just this past year, which held that the police could not seize more than five months of a suspect’s historical cellphone location data without a warrant.
The majority opinion, written by Chief Justice Roberts and joined by the four liberal justices, epitomized the notion of a living constitution and how “the Court is obligated — as ‘subtler and more far-reaching means of invading privacy have become available to the Government’ — to ensure that the ‘progress of science’ does not erode Fourth Amendment protections.” Yet in doing so, he conceded that the decision was a very narrow ruling and did not affect other scenarios such as “real-time [cell site location information],” “conventional surveillance techniques and tools such as security cameras,” “business records that might incidentally reveal location information,” or “collection techniques involving foreign affairs or national security.” Thus, Carpenter merely adds to the hodgepodge of narrow decisions based on the “reasonable expectation of privacy” standard.
Although the Court split 5–4, Gorsuch’s dissent was actually similar to a concurrence because he agreed with the majority’s decision but strongly disagreed with the majority’s reasoning. Instead, Gorsuch argued that cellphone location records are the property of cellphone owners and cannot be searched without a warrant.
Gorsuch also believed that Katz was incorrectly decided because the original meaning of the Fourth Amendment did not provide for a “reasonable expectation of privacy.” He advocated that the Court should overturn the “reasonable expectation of privacy” standard as it was not consistent with the original meaning of the Fourth Amendment and led to confusion and inconsistencies in the lower courts:
The Amendment’s protections do not depend on the breach of some abstract “expectation of privacy” whose contours are left to the judicial imagination. Much more concretely, it protects your “person,” and your “houses, papers, and effects.” Nor does your right to bring a Fourth Amendment claim depend on whether a judge happens to agree that your subjective expectation to privacy is a “reasonable” one. Under its plain terms, the Amendment grants you the right to invoke its guarantees whenever one of your protected things (your person, your house, your papers, or your effects) is unreasonably searched or seized. Period.
Conclusion
These three cases — United States v. Jones, Florida v. Jardines, Carpenter v. United States — suggest that the Supreme Court is slowly realizing that a half-century of very narrow decisions based on the “reasonable expectation of privacy” standard set by Katz has gradually eroded the common law principle of stare decisis over time. To correct this growing issue, the Court has turned to originalism recently as a method of interpretation in order to find a better standard more consistent with the original meaning of the Fourth Amendment. Fortunately, there is a preponderance of historical evidence — from both the common law and the public meaning of the document — that shows that the Fourth Amendment was grounded in the protection of one’s property from government trespass in unreasonable searches and seizures.
Every so often, a constitutional law scholar will boldly declare that “Originalism is Dead!” Yet history has repeatedly shown that the mantra should rather be “Long Live Originalism!” — whenever a cloud of inconsistent rulings looms over the Court, it turns to originalism in order to restore faith and integrity in the Constitution. The Court is slowly doing so right now in the Fourth Amendment jurisprudence, and there is no doubt that an originalist Court will continue to restore the original meaning in other areas of the law. Hence, Justice Kagan was absolutely correct when she proclaimed: “We are all originalists.”
