Katz as Originalism: The Fourth Amendment & Privacy

Katz as Originalism: The Fourth Amendment & Privacy

Tuesday, November 15, 2022 | Room 105, Berkeley Law

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The “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.


Orin Kerr

Orin Kerr is one of the country’s foremost scholars of the Fourth Amendment and criminal procedure. He helped found the field of computer crime law, which studies how traditional legal doctrines must adapt to digital crime and digital evidence.

Kerr has authored more than seventy law review articles, over half of which have been cited in judicial opinions (including eight different articles that have been cited in U.S. Supreme Court opinions). He is regularly listed as among the most cited and most influential law professors in the United States. In addition to writing law review articles, Kerr has authored popular casebooks, co-authored the leading criminal procedure treatise, and published countless blog posts. These days he also wastes a lot of time on Twitter.

Kerr has briefed and argued cases in the United States Supreme Court and three federal circuits. He has testified six times before Congressional committees. From 2013-2019, Kerr served on the Advisory Committee for the Federal Rules of Criminal Procedure by appointment of Chief Justice Roberts. In 2015, the Chief Justice appointed him to serve on the Judicial Conference’s committee to review the Criminal Justice Act.

Before attending law school, Kerr earned undergraduate and graduate degrees in mechanical engineering. He has served as a law clerk for Judge Leonard I. Garth of the U.S. Court of Appeals for the Third Circuit and Justice Anthony M. Kennedy of the United States Supreme Court. He has also served as a trial attorney in the Computer Crime and Intellectual Property Section at the U.S. Department of Justice and a Special Assistant U.S. Attorney in the Eastern District of Virginia.

Prior to joining the Berkeley Law faculty, Kerr was a professor at the George Washington University Law School and later at the University of Southern California Gould School of Law. He also has been a visiting professor at the University of Pennsylvania and the University of Chicago.

Andrea Roth

Andrea Roth joined the Berkeley Law faculty in 2011, after 3 years as a Grey Fellow at Stanford and 9 years as a trial and appellate public defender in Washington, D.C. Her research focuses on how pedigreed concepts of criminal procedure and evidentiary law work in an era of science-based prosecutions. Her recent articles and book chapters include “The Use of Algorithms in Criminal Adjudication,” in The Cambridge Handbook on the Law of Algorithms (Barfield, ed., 2021); “Admissibility of DNA Evidence in Court,” in Silent Witness (Erlich, Stover, & White, eds., Oxford Univ. Press 2020); “‘Spit and Acquit’: Prosecutors as Surveillance Entrepreneurs,” 107 Cal. L. Rev. 405 (2019), and “Machine Testimony,” 126 Yale L.J. 1972 (2017). She is also a co-author on a leading Evidence casebook (Sklansky & Roth) and a Scientific Evidence treatise (Imwinkelried, Moriarty, Roth, & Beety). In 2021, she was appointed chair of the Legal Resource Task Group of the National Institute of Standards and Technology’s Organization of Scientific Area Committees and is one of several faculty co-directors of the Berkeley Center for Law and Technology. She is also an elected member of the American Law Institute.

In 2019 Roth was one of four recipients of the campus-wide Distinguished Teaching Award. In 2017, she received the campus-wide Prytanean Faculty Award, given to one pretenure woman faculty member. In 2016, she received the law school’s Rutter Award for Teaching Excellence. She has also received teaching awards from Women of Berkeley Law and the Berkeley Criminal Law Journal.

William J. Cuddihy

Author of The Fourth Amendment. The Fourth Amendment’s protection against unreasonable search and seizure provides the bulwark for police regulation and many other government functions in the United States. One of the most controversial rights in the Bill of Rights, this amendment is also among the most frequently adjudicated provisions of constitutional law. Yet its meaning has remained deeply contested, and the story of its origins is largely unknown. This book tells the full story of the Fourth Amendment’s complex lineage, including its intellectual roots in England. This book has particular relevance today given the long list of controversial new surveillance measures undertaken by the government in recent years, including the USA Patriot Act and the NSA wiretapping program. The preface has been written by privacy expert Daniel Solove.

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Episode Transcript


[BRAD BARBER] Welcome everyone.  I’m Brad Barber, executive director of the Public Law and Policy Program here at the law school it’s my pleasure to welcome you all to our program today, which is one of a continuing series in the Bill of Rights. Today’s program is titled Katz as Originalism. Perhaps there should be a question mark after that. The subject is the Fourth Amendment and Privacy. I’d like to thank our co-sponsors for today the American Constitution Society (ACS) and the student Federalist Society. We’re also co-sponsored by the Anglo-American law and policy program as we will be going into some of the history of the Fourth Amendment and of searches generally. We have a very distinguished panel today speaking first will be Professor Orin Kerr who is the William G Simon professor of law. I knew Bill Simon, he was the special agent in charge of the FBI office in Los Angeles which gave him jurisdiction over Hollywood and related matters. I can’t help but think that Bill Simon might actually have been interested in today’s program. Orin is one of the country’s foremost Scholars of the fourth amendment in criminal procedure. He helped found the field of computer crime law he is authored over 70 law review articles, regularly listed as among the most cited and most influential law professors in the United States. He’s authored popular case books and co-authored the leading criminal procedure treatises, published countless blog posts and, as he says, he wastes a lot of time on Twitter.
[KERR] Not yet [unintelligible]..
[BARBER] Well that’s that’s right uh we can ask we can go into that later. Orin earned his undergraduate degree and graduate degree in mechanical engineering, clerked for judge Leonard Garth of the U.S. court of appeals for the third circuit and Justice Anthony M Kennedy of the Supreme Court. Orin was a professor at George Washington University School of Law later at the University of Southern California School of Law and has been a visiting professor at Penn and the University of Chicago. Our second speaker is Bill Cuddihy who is a full Adjunct professor at the Los Angeles City College where he teaches history but is one of the foremost uh authorities on the history of the Fourth Amendment. His doctoral dissertation, “The Fourth Amendment Origins and Original Meaning” was turned into this small Tome which is available on Amazon. It was four volumes in its form as a doctoral dissertation and is the longest of any dissertation in the history of the Claremont Graduate University from which Bill uh received his PhD. He’s the author of numerous law reviews generally on the subject of the Fourth Amendment including the title uh “A Man’s House is Not His Castle: origins of the Fourth Amendment” and “From General to Specific warrants”. We’re pleased that bill could join us and I’m particularly looking forward to hearing about the origins of the Fourth Amendment which Bill traces uh to its Beginnings in the year 602 which uh of course in England was before there was even a unified monarchy so we’ll see how uh Royal warrants were issued in those days. Our final speaker is Professor Andrea Roth of the law school here she teaches criminal law and procedure and criminal justice has been on the faculty at the law school since 2011 after three years as a Grey fellow at Stanford and nine years as a trial and appellate public defender in Washington D.C her research focuses on how pedigreed concepts of criminal procedure and evidentiary law work in an era of science-based prosecutions. She the author of works such as the “Admissibility of DNA evidence in court” the article “Split, Spit, and Acquit” and the co-author of leading evidence case book. Professor Roth is one of four recipients of the distinguished teaching award in 2019. In 2017 she received the campus-wide Prytanean faculty award and in 2016 she received the law school’s distinguished Rutter award for teaching excellence. So please welcome our panelists and with that I’ll turn the program over to Professor Kerr.
[KERR] Thank you Brad. Thank you all for coming it’s great to see a good uh turnout and I’m particularly delighted to have our uh guest Professor Cuddihy from uh coming up from Los Angeles for this. His PhD thesis was passed around in mimeographed form among Fourth Amendment nerds for years before it was published kind of like Grateful Dead bootleg cassettes um in in the 80s and 90s you guys don’t understand. It means it was really cool uh among a set of people particularly interested uh and uh and it’s great to have him here given his knowledge of the Fourth Amendment history. So here’s the basic topic and I wanted to offer a thesis about it that we’ll be discussing uh and here’s here’s the question. As you might have heard the U.S. Supreme Court uh has a number of justices on the court who are originalists they are deeply interested in the original public meaning of the Constitution and look for ways in way which prior decisions of the Court have deviated from that original public meaning and are interested in returning to that original public meaning. And for those of us who spend a lot of time focused on the fourth amendment the prohibition on unreasonable searches and seizures one really important question is whether the court will target Fourth Amendment law and how that might go when the court does turn to Fourth Amendment law. Not an issue this term the Supreme Court has not granted any Fourth Amendment cases for this term and actually had no Fourth Amendment cases granted for last term either which depending on how you look at it is a disturbing uh inability to focus on the most important questions in constitutional law or is a glorious pause as the court focuses on other issues. But there have been signs that several of the justices uh think the way the court uh prior precedence of the Supreme Court have approached uh the Fourth Amendment are misguided uh really focused on the Katz test from the Supreme Court’s decision in caps versus the United States a test for what is a search under the Fourth Amendment. The Constitutional tax uh the right of the people uh uh uh uh to be secure against unreasonable searches and seizures in their uh persons houses papers and effects shall not be violated the big question being what counts as a search of persons houses papers and effects and in 1967 in the Supreme Court’s decision in Katz Justice Harlan wrote a concurring opinion that was then later adopted by the court which focused on what gets known as the “reasonable expectation of privacy test” uh justice Harlan says the inquiry essentially is whether a person has manifested a subjective expectation of privacy that Society is prepared to recognize as reasonable. And that actually is the first formal test that any Supreme Court Justice had used to articulate just what is a search under the Fourth Amendment uh and the court has used this test used it until uh United States versus Jones in 2012 where the court said well there’s this pre uh of pre-Katz test for uh based on trespass and then in 2014 the court rephrased it as physical intrusion uh and so currently the black letter law of what is a search under the fourth amendment is we have this trespass-intrusion test from Jones and Cardinas on one hand and then most of the precedents of the Court are based on this Katz test so there are two different ways of figuring out what is a search and if you listen to the originalist justices talk about the Katz test uh essentially the claim is that this was just made up by the Warren court and it really has nothing to do with the true constitutions let me quote a couple passages uh of making this argument first this is Justice Scalia concurring in Minnesota versus Carter the test “the Katz test “he says “bears an uncanny resemblance to or the expectations that Society is prepare to recognize is reasonable he says Bears an uncanny resemblance to those expectations of privacy that this court considers reasonable when that self-indulgent test is employed to determine whether a search or seizure within the meaning of the Constitution has occurred it has no plausible foundation in the text of the fourth amendment. That provision did not guarantee some generalized right to privacy and leave it to this court to determine which particular manifestations of the value of privacy society is prepared to recognize as reasonable. That is up to the good judgment not of this court but of the people through their representatives in the legislature.” And we see that same basic critique more recently in Carpenter versus United States let me just focus on Justice Thomas And Justice Gorsuch writing about the Katz test Justice Thomas has a passage in Carpenter suggesting essentially that the reasonable expectation of privacy test was made up by the lawyer for Katz and this is this is what Justice Thomas writes: “Justice Harlan did not cite anything for his expectation of privacy test and the parties did not discuss it in their briefs. The test appears to have been presented for the first time at oral argument by one of the defendant’s lawyers. That if the lawyer a recent law school graduate apparently had an epiphany while preparing for oral argument” citing an argument that this lawyer wrote a law-review article that this lawyer wrote. “He conjectured that like the reasonable person test from his torts class the fourth amendment should turn on whether a reasonable person should have expected his communication to be private. The lawyer presented his new Theory at the to the court at oral argument and then the court accepted it.” That was what Justice Thomas says and then Justice Gorsuch largely repeating the critique from Justice Scalia suggests in his own dissent in Carpenter we don’t know what the Katz test is is if it’s descriptive what expectations do people have why would the Supreme Court know what people have they’re not well answered well well situated to answer a descriptive question and if it’s normative why should the judges be engaged in a normative policy Enterprise that should be up to the legislature essentially echoing Justice Scalia concurring in Minnesota versus Carter. So uh the critique is there coming from uh originalist justices that this Katz test essentially was made up raising the question of how long is it going to be one of the tests for what is a fourth amendment search and and my claim is that these critiques these originalist critiques misunderstand what the Katz test is they misunderstand where the test is coming from and that if you take an originalist approach if you focus on the original public meaning of the Fourth Amendment if you focus on the text of the Fourth Amendment you actually end up largely recreating the Katz test that the test is consistent with the language of the fourth amendment is consistent with the history of the Fourth Amendment it’s a different way of phrasing that textual language but it’s substantively the same so I think what should happen if the Supreme Court Originals justices want to revisit the Katz test they might rephrase the test in more in different language using more explicitly the text of the Constitutional provision but the substance will be the same that’s that’s my my basic argument so let’s go back and talk a little bit about the fourth amendment’s history one natural question is uh what was the public understanding of what is a search of persons houses papers in effect at the time that the fourth amendment was ratified and there was a series of disputes about a search and seizure that led to the enactment of the Fourth Amendment and Tech versus Carrington Wilkes versus wood uh the writs of assistance case in Boston most of these were from England the Boston case of course was from the colonies but the basic dispute involved physical Invasion into people’s houses the Kings officials would break into people’s houses and take stuff away so the paradigmatic example of a search would have been a physical Invasion breaking into someone’s house a seizure would have been taking their stuff so that’s the the most uh the paradigmatic example that in 1791 everyone would have been familiar with here’s the challenge I think there was no particular under understanding of what level of generality the word search or persons houses and papers effects would apply to at the time of 1791 there was no broader Theory or test for what counts as a search because the issue just didn’t come up at the time it wouldn’t have come up because the focus in the 18th century was on General warrants it was on the scope of how broad a warrant could be when a warrant was used to justify an intrusion into someone’s home and taking away their their stuff so the question of what’s the test for what is a search was something that just didn’t come up and also in part because the notion of professional police officers or or law enforcement officials whose job it is to investigate cases gather evidence and the like that role didn’t really exist until the 19th century when you start getting professional police in in New York City or London and New York City and Boston and other other places that’s really a 19th century creation and it’s not until the 20th century that you start getting significant case law on what exactly is a search there’s sort of hints of this question in the 19th century but if not until the 20th century that you really start getting a the Supreme Court in particular focused on this question of what is a fourth amendment search and leading up to Katz in 1967 there had been cases in the 1950s and 60s well 20s through the 60s early 60s I suppose which is suggested that maybe the test was just physical intrusion so just the fact pattern that had animated the enactment of the Fourth Amendment like Entick versus Carrington Wolf versus Wood breaking into someone’s house and taking away their stuff and the question that the justices were grappling with in Katz was whether something Beyond physical intrusion could also count as a search and that was an issue because technology had evolved to the point where it was possible to engage in sort of the equivalent of a physical Invasion without actually engaging in a physical Invasion and that was pretty much what had happened in the Katz uh case so the facts of Katz were a public phone booth uh sort of hard to remember those uh today but for those of you that are like I don’t know what a public phone booth is you know the little enclosed boxes with glass and wood and metal and you would go in and you’d make your phone call in a world before cell phones and you would close the door and put in your coin and place your call well caps was placing unlawful bets from a public pay phone on a street corner in Los Angeles where the special agent in charge was William G Simon to that and so uh uh uh the uh Katz was placing these bats the FBI then there was a row of three phone phone booths they marked out two of them as uh out of order to make because they only had one microphone and they taped a microphone to the top of the phone booth when Katz would go into places legal bets they would turn on the microphone and there was a wire that was then going from the top of the phone booth over to the FBI listening post you know some some distance away and the question was that was that a search or not and it wasn’t a obviously a physical intrusion there was no breaking into a house there was a microphone taped to the top of a phone booth and the majority concludes that that was in fact a search of course reasoning is kind of murky which leads Justice Harlan to step in and say Here’s why I think this was a search he starts off his opinion by saying I think this majority decision stands for three principles first principle a phone booth is a protected area under the fourth amendment I think what that means is a phone booth used by a person an enclosed Booth is covered by that person’s houses papers and effects language whether it’s kind of a virtual home for some short-term period of time or maybe it’s in effect doesn’t quite matter I think how you categorize it but it’s within that category second Heartland says the electronic listening in that is the microphone taped on the on the top of the phone booth is a one way of searching that protected area so the fact that they had attached a microphone and weren’t actually listening hadn’t sort of broken into the phone booth didn’t make any difference they were able to get that that information and then third a warrant was required for the surveillance which was the reasonlist aspect of the of the Katz uh test not part of the search inquiry and and then Harlan says uh very short opinion one page he’s just summarizing what he says uh his understanding of the current case law is first a person has to manifest a subjective expectation uh and second Society has prepared to recognize that expectation as reasonable what did he mean by that I think natural understanding if you read that concurring opinion as a whole is that Harlan did not intend to enact some sort of constitutional Revolution he did not intend to create some newfangled test some freestanding two-part test for what is a search he meant something very simple first subjectively attack manifest a subjective expectation of privacy all that meant was that a person had to conceal the uh what they were doing from outside View uh Katz have done that by going into the phone booth and closing the door in a way that made it hard to hear what his private conversation was and in fact there had been a long list of uh of Supreme Court decisions from the 40s and the 50s and the 60s including just the term before Katz versus United States dealing with undercover agents where the Supreme Court had said listen if if someone talks to an undercover agent or an informant that’s not a violation of their fourth amendment rights they’ve exposed that to someone and that actually that idea goes back uh to a 19th century a a decision uh Henry Jackson where the ex parte Jackson sorry which uh was dealing with Fourth Amendment rights in postal mail where the Supreme Court says if you submit your postal mail in a form that is open intending it to be observed you don’t have Fourth Amendment rights in that which have you have exposed to the post office so that’s like 1877. that idea is just consist assistant with the undercover agent cases and that’s all Harlan had in mind with his subjective test what did the reasonable expectation of privacy tests mean I think all that was designed to do was try to capture this notion of what is how what are houses and what are effects in a world in which technology is changing here’s the problem in the common law era in the 18th century for example the idea of what would be your private space was relatively fixed and the ways of invading your private space were relatively fixed fast forward to the 20th century the places that you might treat as your home are now different from what they were in the 18th century and the ways of invading the privacy of the home are different from what they were in the 18th century and I think what Justice Harlan was trying to do was simply come up with a technological equivalence idea that when Society has changed to the point where people have different private spaces we should recognize those spaces as the modern day equivalent of 18th century homes or effects and we should recognize modern day technological ways of invading privacy in those spaces so the phone booth was simply a home or in effect it was Katz’s private place once he went inside placed the coin it’s almost like he rented like a hotel room or something like that you know for for the period of that call it was temporary but it was a temporary private space as Harlan puts it and he had made that his own and listening from the microphone um was a way of invite invading the privacy of that space and that understanding of the Katz test it’s not some sort of free form what a society you know judges figure out what you want to do from a policy standpoint it’s really just trying to ask what in our technological world is the modern day equivalent of a home or of a person’s effect recognizing that houses how technology and Society changes means we have to sort of uh uh be ready to change the answers to that as Society treats different spaces differently there was no phone booth in uh 18th century America that was very much a 20th century idea of a private space where you could sort of treat it as your home if you place that coin and made that call and so the idea of I think what Society is prepared to recognize as reasonable is not just sort of like okay judges do whatever you want it’s where what is society treating as the equivalent of a home what is society treating as the equivalent of their private space and in 1967 that was a public phone booth given the way people treated phone booths so you didn’t need um you know a fee simple title in the phone booth and you didn’t need a lease agreement on the phone booth it was how people use the phone booth was the inquiry ultimately that uh that judges needed to work to look at and I think essentially the point here is to get some sort of a technologically neutral uh approach to the Fourth Amendment where as technology shifts as you get new technologies the fourth amendment can maintain its role you see a great example of this in Kyllo versus United States the case involving thermal imaging where the government from outside Kyllo’s house uses the thermal imaging device to scan the side of Kyllo’s house and figure out what’s hot and what’s not hot on the walls which then the government uses to get a search warrant using the heat emanating from the sides of the house as probable cause for a warrant and Justice Scalia writing for the court says we need to preserve the amount of privacy that existed at common law and these new tools are being used in invasive ways to get information from the inside of the home and therefore we recognize that as a search under the Fourth Amendment that’s the basic idea of Katz Justice Scalia even though he is critical of Katz in the in the Carter opinion he’s actually very much applying this notion in the Kyllo case where he’s focused on how do we maintain the role of the Fourth Amendment against technological changes which might change how we invade privacy but don’t alter the substance of that which is done so the fourth amendment should be sort of focused on that question of technological change one last point I want to make uh uh the word privacy um uh to to sort of I think I think a lot of the originalist opposition to Katz is based on that one word uh privacy reasonable expectation of privacy why are they talking about privacy a lot of originalist uh judges and justices see that word and they think of Roe versus Wade and they think of the um uh Warren Court sort of being creative and constitutional interpretation and the burger Court afterwards and and it it gets sucked into a lot of debates over uh constitutional privacy and Roe and all the like so you know it’s it’s a little bit a little bit like waving a red flag in front of a bowl it’s sort of like wait a minute this you know danger here the word privacy well not so uh you have to go back and look at how courts and uh particularly courts but also legislatures talked about the Fourth Amendment uh and Fourth Amendment protections long before Katz this idea of using the word privacy was not a novel Innovation it wasn’t the creation of the Warren court and so a couple examples here one example uh Jones versus Gibson this is a New Hampshire case from 1818. so long long before the Katz uh case uh and that was a case involving a 1799 federal statute that had largely echoed the fourth amendment that prohibited warrantless searches of a ship vessel dwelling house store building or other place and the court had to figure out um uh that was actually there was a search of a stage coach uh and they had to figure out does it fall within that statute which was very much drafted uh in ways similar to the Fourth Amendment uh and here’s what the New Hampshire Court said the prohibition of entering certain places for the purpose of searching for and seizing Goods without a Magistrate’s warrant was clearly intended to guard individuals against improper intrusion into their buildings where they had the exclusive right of possession and privacy and the words other place because that was of course the question is other place including a stagecoach meant where the occupant has this exclusive right of possession and privacy and the court ultimately concludes based on 1818 New Hampshire life I suppose that stage coaches were not places of privacy and therefore the the statute did not apply another example uh the Missouri Supreme Court’s 18 1880 ruling and ex parte Brown which is an interpretation of the state equivalent of the Fourth Amendment which uh the question in brown was whether the government could subpoena private messages uh private telegram messages sort of like the email of the day and the court concluded that using the subpoena to get people’s private messages was a violation of the state equivalent of the Fourth Amendment because it’s subjected to exposure the Private Affairs of persons to the prying curiosity of idol gossips or the malice of malignant Mischief Makers wow that’s a good alliteration for you and they also applauded the dissent and the decision below which had said that the state equivalent of the Fourth Amendment protected a right of privacy with respect to one’s personal affairs um and and this notion of privacy was very much in play in discussions of the Fourth Amendment Fourth Amendment equivalents Fourth Amendment inspired statutes and then in 1886 the U.S. Supreme Court uh in Boyd versus United States picks up this language talks about how you can’t have a literal a a close and literal construction of the text deprives it of half its efficacy and leads to gradual depreciation of the right and that the fourth amendment applies to all invasions on the part of the government and its employees of the sanctities of a man’s home and the privacies of life there’s that word again privacy 1918 the court talks about in Feldman versus United States also talks about the Fourth Amendment and is focused on an invasion of the person’s privacy and then in the 1930s you start getting cases where the court summarizes what is the Fourth Amendment about it is must be construed liberally to safeguard the right of privacy the court says of course says this in the 1930s almost like uh uh they say this in 1946-47 48 50 there’s like almost every term there’s a case where they refer to just the standard discussion of the Fourth Amendment as being about the right of privacy so when Justice Harlan in 1967 is talking about a reasonable expectation of privacy he’s not talking about predicting Roe uh he’s not talking about sort of other forms of intimate privacy or anything like that he’s talking about Fourth Amendment privacy which is a concept that had been around from the beginning with courts using that term in a way that had never been controversial so it was not a a an innovation it was applying the phrases and the concepts that the court had long developed to try to understand what is a search of persons how houses papers and effects in a way that was consistent with the history and trying to make sense of how the fourth amendment should apply in an age of new technologies so the court should maintain the Fourth Amendment they should maintain the Katz test not overturn it. Thank you. [BARBER] Thank you. [APPLAUSE] Bill do you want to speak?
[CUDDIHY] Yeah before I forget this uh Orin, you cited um uh the Jones case you know there’s an earlier one? Sailly versus Smith are you familiar with that uh uh that’s in 11 Johnson that’s uh Kent’s New York Supreme Court replaced they searched a sleigh uh in 1812 um both incidents occurred at the same time but the uh slay case reached the courts first and then the Jones case cited that.
[ORIN] Okay great…
[CUDDIHY] My memory is not perfect but I think it’s a 11 Johnson 500. You might check that. I’m disturbed by originalism because I think the original meaning of the rights should not apply but the way they are being misused. In the Armstead case in 1928 Justice Taft who is an eminently reasonable man, a former president, a reforming Progressive president reasoned as follows: they didn’t enter the house they just tap the wires leading out of the house fourth amendment protects houses. Outside the house doesn’t matter right? if you take that opinion to its logical implication you render All Rights obsolescent by implying that the right only endures against its original violations all subsequent violations are not protected. All rights are technologically essentially circumvented by time and and in his dissent Brandeis said wait a second what if they can invent a device that can read your mind and you said yeah yeah I saw um I don’t watch the the movies that you kids watch uh The Matrix that’s it I’ve heard about it I haven’t seen it. What if you watched The Matrix and you literally get you think well that’s that’s science fiction that’s just right now they can measure the regions of your brain that are active they can’t tell what you’re thinking but they can take they can identify the exact neurons in your brain that are conducting thought it’s only one step away from that to reading the thought. And another thing that bothers is history be careful how you use it. My students go to sleep because they assume well if it happened more than the day before yesterday it’s dead and they’ve all seen uh what was that movie um Clueless with his students are crying wanting of two of their teachers from about 25 and one says why are you crying she says well I always cry when really old people fall in love so you know 25 to 30 is old. The reason I say that just one example all mentioned the Wilkes cases the Wolfs cases are political Dynamite unless you use them carefully. Exhibit A: the meaning of the Wilkes cases does not correspond to its residence. What people thought were the Wolf’s cases is not their real content. Pratt was the lower court judge in common pleas. Mansfield was the king’s bench and judge that’s chief Justice Superior to him. Completely lost in this argument was that the general search warrant was one of only about 17 different categories of promiscuous General search or person with a writ of assistance in the customs or the excise or censorship or recruitment for the Army or press gangs in the Navy or the pursuit of vagrancy could enter and search any house he wanted arrest anybody he suspected for any reason and Pratt went ballistic he says if this is allowed his man’s house is not his castle Magna Carta is dissolved then Mansfield came along in the Enfield case and said wait a minute the reason this warrant is invalid is because it has no statutory Foundation I don’t give a damn if you could give me precedence going back to Rome those precedents are not founded on statute I strike it down for that reason and the final hearing of Entick Pratt pulled in his horns and said I strike this down because it’s not authorized by Statute people thought that the British had categorically extinguished the general search warrant they continue to use General search warrants for vagrancy it’s only 1830s it is common for sheriffs to go into a what we would call a motel which is usually a de facto house of prostitution the rest every woman in sight grab 40 or 50 in prison and just let them rot or many of them will die the Writ of assistance is a general search warrant that is what James Otis challenged the Los Angeles Times which I pay to read said 10 years ago the British repealed the writ of assistance and encountered it by the way they did it no they did not in 1979 the customs and excise act continues the Writ of assistance with the power to enter and search any house and the same words in which it originated in 1662. It’s still there if you want to play with the carnival be careful how you lose history you do that and what’s going to happen next I told a friend of mine I won’t say home be careful how he is because Tom Davies is going to take everything you said out of context and say this is what kind of he say he’s done it to me and he’ll do it to you um history is a weapon and I you know what always bothers me about the originalists and I consider myself to be one of them is this we want to butcher privacy privacy is not there they hate privacy the vexed exposition of their attack on privacy is what Orin did I love it so I’ll tell you what I’ll give you my child I’ll put my fourth amendment up on your Champion altar let us kill privacy the only meaning of the Fourth Amendment are the violations of the Fourth Amendment contemporary of its writing it’s open season on essentially electronic searches come and get it okay but hey wait a second this goes both ways let’s turn to the Second Amendment shouldn’t we have the same originalist literalism and the understanding of arms what does the Second Amendment say time I see it it’s misquoted my students will tell me the right to keep and bear arms shall not be infringed no a well-regulated militia not a bunch of pot smoking idiots on the 6th of January a well-regulated militia be necessary to the security of the Free State not the overthrow of the free state the right of the people to keep and bear arms shall not be entrenched the First Amendment explicitly is a militia right and in her critique of Heller that is what RBG said and I agreed with her she cited the earlier case in which they had restricted it the second Clause says what the right of the people to keep and bear arms you and my my own arms in our private in our public capacity but you only bear arms when you’re in the Army so okay I’ll give you the sacrifice of the Fourth Amendment you may join the militia anytime you want and each and every one of you may have a blunderbuss that takes 45 seconds to load on on these in March of 1770 in the um Boston Massacre the British don’t know what the hell to do one of them is just pelted a hit in the head with a stone a Paving Stone the British soldier who was stationed in front of the hated Customs commissioners of customs and this kid is 17 year old Ensign he doesn’t know what the hell to do he’s not trained in crowd control nor my I had it’s the 82nd Airborne and he goes through the separate command there are 70 to 100 commands “remove your ramrod you have to ram the ramrod remove it replace it insert the powder ram it a second time remove it and replace the second time insert the bullet ram that remove that second dose of power” they have to be powder on both sides “you have to Ram that remove it replace it” now you’re almost halfway there now you have to cock the weapon take your powder horn for the fourth time and lay a careful trail of powder from the touch hole to the flint then you have to take out the Flint and put it in now this kit is giving these commands watching these people howling and screaming and finally you know what the hell else to do Hillar B Zobel the Boston Massacre takes you through it beautifully he they assume “hey go ahead what are you gonna do shoot me hey you put the bullet here yeah go ahead do it” and suddenly he’s down to the last remove your ramrod ready wait a minute aim what’s left fire they do it twice people fall dead in the snow I’ll give you the Fourth Amendment you give me the original meaning of the Second Amendment you can join the militia or you can have a Flintlock that takes 40 seconds to load in Fire and takes months to learn how to do and I’ll give you I’ll give you an original meaning of the Second Amendment if you’ll — the Fourth Amendment — if you’ll give me the original meaning of the second all of this is absurdity this is the use — childish misuse of history now one other second point I’m a little winded here you know if you could
[BARBER] If you could wrap it up we’ll make sure we’ve got time for Andrea
[CUDDIHY] Yeah a second time I don’t want to cut it on we’re they’re here to hear Orin not me so um what about the only critique I have of Warren is he doesn’t go far enough the way in 1960 your Dean William Prosser wrote a famous article on privacy in the California law review he went after Brandeis and Warren and their epic seminal article on privacy in the Harvard Law review of 1890. And in it he said uh privacy is basically four torts and I will boil those torts down to two intrusion and essentially divulgement divulgement comes in three forms and he was answered by um Blaustein the dean of NYU and he said no it’s not a tort at all it’s a sensibility. What about the trajectory of the Fourth Amendment before the Wolf’s cases exhibit hey I don’t this is not in my book he won’t find it here this will be in the second edition if I live long enough to publish it in 1783 um the understanding of an unreasonable search is a general warrant but then we on the 19th of October 1781 we defeated the British at Yorktown the war’s over everybody knows for practical purposes it’s it’s done from 1781 to 1791 is the essentially the doorstep of the fourth amendment that is the cauldron in which it is fused that same time but nocturnal search of a home not just simply a search an entrance you can’t go into the guy’s house after the sun sets now they all Define the sunning of the sun differently but the principle is the same and that law endures all the way past the Civil War when the in the period of the Articles of Confederation the only Power that Congress has is to collect taxes now in 1783 George McKean is the great exponent of the right against unreasonable search it was he who had struck down General search warrants of ships when ships were always subject to General search without warrant he struck that down and he was the great hero in here who struck down the general search for Quakers when the British reoccupied Philadelphia in 1777 he struck it down and they denied his habias Corpus yet a few years later Robert Morris the Secretary of Finance wrote to him and he said look I’m fed up and the Battle of Utah Spring is we honest to God have American soldiers fighting naked because those SOBs in the state legislatures were depending on for our funds will not send us the appropriation that we meet our men are fighting naked give me the means to collect those taxes he said I’ll give it to you I hereby draft this law that says you may enter and search any house to collect the tax and anyone who resists will be put in the Navy and shot of the desserts immediately New York Massachusetts erupted first Massachusetts and virtually all the other states restricted all federal searches for taxes to a warrant only even though many of them retain the general search weren’t for themselves what about the momentum of the evolution of the right diplomacy I’m now searching the ancient Roman statutes I Define both privacy and general searches but most importantly E-40 tells me to shut up um in um saucer the word privacy appears 14 times not with our modern spelling 14 times
[BARBER] Bill uh if it’s if it’s possible uh perhaps we could hold off on this um and let Andrea uh speak and then we can return I know you’ve got uh more to say on this subject and in fact you told me about Marcus Aurelius the emperor and this subject so if time permits we’ll get back to Imperial Rome.
[CUDDIHY] Can we leave Donald Trump there?
[ROTH] Well it is such an honor to be up here with two such uh prominent Fourth Amendment Scholars and historians and and um uh Orin is a dear colleague and and Bill it’s just such an honor to hear from you…
[CUDDIHY] well thank you.
[ROTH] so uh it’s wonderful to meet you um I’m on the panel because I’ve lost more Fourth Amendment motions than anybody else on the faculty uh so I really know what’s not protected um so it’s great to put a part of this conversation uh I really enjoyed and and learned a lot from Orin’s paper and from hearing from bill um and he thoroughly persuaded me of two things first that this that Katz is not free-floating in circular it’s got a historical and legal pedigree that uh the originalist conversation has not given full due to and uh that’s um uh wonderful uh didn’t come out of nowhere and second in his paper which he wasn’t able to get into too much today the positive law model at least is an exclusive means of interpreting the fourth amendment has little to recommend it and he has persuaded me in that but I remain also skeptical of Orin’s Central thesis that Katz is consistent with originalism and let me explain briefly why I’m only going to speak for nine more minutes uh by going through his three arguments first his discussion of Katz itself um and second is discussion of history and the general warrant cases inspiring the Fourth Amendment um and third his claim that originalist alternative tests are just Katz Redux or Katz in Disguise so back to Katz itself so Orin argues in his paper and from today that what the court was really doing was entirely originalist friendly exercise which he says is to try to find modern technologically advanced equivalents of the four categories houses persons papers and effects but I think there are two problems with that first is Justice Hugo Black argued in his descent in Katz which uh Orin talks about at length in the paper uh I don’t think it’s obvious this was a search of a tangible place or object it was interception of incriminating sound waves emanating from a phone booth that could be felt on the exterior it did not require going into the phone booth and now Orin argues that we could creatively think of the recording device as actually entering and searching the phone booth rather than the conversation um but that argument number one proves too much I think it would presumably Make Every Act of eavesdropping an actual search of the home uh under the eaves of which the person the eavesdropper is um standing and the problem I would assume from an originalist perspective with viewing all eavesdropping as a physical search of the place where the conversation is being held is that as Justice black pointed out and as I’m sure Bill knows more than I do about eavesdropping has been a word since the 15th century it was well known to the framers it was a constable tactic in Worcestershire it’s uh they could have put it in there if they wanted to and yet they didn’t and so Orin might say that uh that means the question since they didn’t put it in there that means the question of what to do with eavesdropping is ambiguous but I think he’s giving the originalism discourse too much credit there I think a textualist or an originalist would say that means the amendment doesn’t protect against it the framers knew about it and they didn’t put it in there period if you want a law against eavesdropping call your Congressman uh — that is legislation not the Constitution so uh second the idea that the searching Katz was of the booth itself also doesn’t seem physically accurate and again the device didn’t have to penetrate the booth the waves were emanating uh on the exterior and sensed on the exterior and in that sense it’s like Kyllo which as Orin points out is oddly written by a purported originalist Justice Scalia Now The Descent the four dissenters in Kyllo pointed out that the heat waves in that case observed from across the street of the house also were detectable on the outside and uh required no entry into the home physical or otherwise and while those four dissenters didn’t win the day in Kyllo Kyllo does not suggest to me that Justice black uh from an originalist or textualist perspective was wrong in cat it suggests to me that originalism is malleable and that Justice Scalia was results oriented in Kyllo in order to protect the lady of the house in her sauna okay the second problem is I see it with Orin’s attempt to reconcile Katz with originalism is that even if Katz involved a search of a phone booth a phone booth I think it’s a stretch to say it’s a modern equivalent to the house uh except in a very more metaphorical sense that goes back to the broader principle that we think underlies the amendment which sounds a lot to me like purposivism so I agree with Orin that originalists should have no problem uh with the idea of extending Fourth Amendment protections to Modern equivalents of those four categories so for example electronically stored private writings as papers I agree originalists likely would not have any problem with that and that’s why I don’t agree with Bill that from this originalist very narrow perspective uh over time the fourth amendment has no meaning I think Justice Gorsuch would say it does have meaning it’s just that we’re looking for the equivalence of those four things if you want more call your congressman so uh but so a phone booth can only fairly be called a house if the definition of a house is as follows anywhere that is just as important to privacy and technological neutrality in the modern era as one of the places list in the amendment now that definition may be logical and principled and desirable and not free-floating or circular but it’s not originalist it’s using house as a metaphor for privacy Guided by the broader principle underlying the amendment so just to be clear I think there’s a subtle but important difference between simply identifying the technological equivalent of these four categories which I think is an originalist Enterprise and what I think Orin is doing and his important work on equilibrium adjustment which is interpreting the fourth amendment to maintain technological neutrality so that the police don’t have significantly more power in 2022 than they had in 1791 Orin makes a very strong case in previous work uh both a descriptive and normative case for this kind of equilibrium adjustment but I don’t see it as an originalist theory of constitutional interpretation I think Orin has shown today and in his paper instead that you can have a principle theory that is not free-floating in circular without being an originalist okay uh Orin’s point might have more force in other contexts um you can have the Fourth Amendment you can have the Second Amendment I’d like the sixth amendment confrontation clause machine Witnesses let’s have new technological neutrality in the confrontation clause um I would love to look at the broader principle underlying the Sixth Amendment which is to ensure meaningful adversarial scrutiny of the government’s proof and the fact that the sixth amendment doesn’t even list four things they don’t say you have a right to cross-examination the oath and physical confrontation they just say confrontation there’s way more wiggle room there than in the Fourth Amendment and yet I would be pleasantly surprised if I had five votes on this court for the idea that the confrontation clause extended to machine Witnesses I’m excited to be proven wrong on that um okay so I also think for the record that if you want to preserve in Amber the ratio of police to Citizen power that existed in 1791 you need to look far beyond technological neutrality and and simply think about neutrality so yes we didn’t have wiretapping in 1791 but we also didn’t have terry stops and frisks we didn’t have police departments and Highway patrols incentivized to do pretextual traffic stops to generate revenue for the city and to help with Federal DEA investigations this federal state Partnerships are new or simply to engage in racial profiling as in Prince George’s County’s driving while the black case involving a D.C Circuit Judge if we care about maintaining the status quo through constitutional interpretation I think we need to do a lot more than adjust for x-ray vision and if the originalists are ready to say that all that stuff is not okay sign me up okay uh really two very quick points the second of orange three overarching points is that Katz is consistent with history and the common law um I think his use of History here is very different from Gorsuch’s use of History Gorsuch points to those three cases says that they involve physical invasions of the house and now I have a better understanding of them because of what Bill said um but says they weren’t thinking about physical invasions which Orin actually agrees with but they just come to two very different conclusions Gorsuch says and therefore you’re lucky that the Fourth Amendment says anything but houses you’re lucky it says persons papers and effects but don’t think it goes any farther than that and Orin is saying well it doesn’t say anything about eavesdropping so I guess it’s ambiguous and I don’t think that’s an originalist perspective. The 1818 New Hampshire case that was interpreting a statute that ended with the words other places it had a catch-all it’s very different from the Fourth Amendment and I think that their analysis in that case was purpose of this yes we can look to other cases that used the word privacy but I think that just shows that Katz has a wonderful pedigree and that it’s not free-floating and circular it doesn’t show that it’s originalist or textualist. Finally I want to discuss Orin’s argument that he wasn’t able to get fully into today but he does this wonderful thing in the paper of going to eat these prominent originalists who have allegedly come up with new tests you know like physical trespass or positive law and says you know this looks quite a bit like Katz and I just wanted to say a couple of things about that in case it comes up in the Q&A um uh his evidence for this is that all the cases finding physical Invasion or property rights invasions also have a legitimate expectation of privacy so there isn’t much daylight between the two and I don’t think that’s true you have cases like Hester versus United States the Open Fields case that involved a physical trespass but not a legitimate expectation of privacy California versus Greenwood the trash case it involves a violation of property law under California at the time uh maybe not property law but like a statute that said that looking at trash was illegal um but it didn’t involve a legitimate expectation of privacy because of the so-called third party Doctrine which I believe Orin is in favor of um so I I think um uh you know Orin himself I think believed that Carpenter was wrongly decided although maybe I’m wrong about that that was my understanding um and justice court system is descent and Carpenter he’s wondering and this is where I’ll end whether the government can get all your Google emails without a warrant or can get your DNA through 23andMe and Gorsuch says exactly I mean channel you know uh paraphrasing “that kind of creeps me out” and uh and and and yet um you know that’s that’s what the 30 third party Doctrine would do. So last sentence is um uh I don’t think Orin has made the case the Katz is originalist but I think he has made the case the Katz is not free-floating in circular and uh is a decently good test and that technological neutrality is a decently good goal um but I think ironically Orin has shown us why you don’t have to be an originalist to find a theory of constitutional interpretation that is principled and that takes judicial restraints seriously.
[BARBER] Thank you very much I’d like to save time for questions but Orin would you like to reply to anything either of our speakers have said? Yeah that’s probably good anyway.
[ORIN] well first of all thank you very much for my fellow panelist for the engagement awesome stuff I guess I’ll focus on Professor Roth’s um actually we’ve got both of them I think together are really getting at the question of what is originalism? Is originalism based on um public original public understanding is it based on inferences from the original public understanding what’s the level of generality that you should apply um uh and and the like so to some extent I think um these questions of what is a true originalist interpretation of the Fourth Amendment are gonna go back to questions of what exactly is originalism rather than whether or not these interpretations are right or wrong I think we all all of the different comments I think are um there’s a fundamental question here which you have to grapple with whether you’re an originalist or not which is do you stick to the original application that animated the enactment of the Fourth Amendment physical intrusion into the home taking away a property or do you start looking at what do you do with all the technological equivalents that are modern era raises one possibility would be to say Well only going to stick with that original application we’re only going to do physical intrusion we will only do the actual house but I don’t think originalism requires that I think originalism can take a broader view of for example what is in effect uh what is property you know that that belongs to someone what is a house it doesn’t need to be an actual house it can be an apartment it could be a tent it could be you know different things that could could possibly count as the house I don’t think it has to be you know the 17 any one definition of what is a house and so to some extent what we’re dealing with is okay to what how far from that original expected application are we willing to go and what do we do when new technology changes that application do we maintain the values maintain that functional role is that originalist or not um versus stick with that original application my my um I think my my fundamental idea is that we can we can interpret searches persons houses papers and effects not just based on physical Invasion we can take a broader View and look at what is functionally achieving the same as that what is functionally treated as an effect what is treated as a home that metaphorical approach is uh consistent with originalism in my view and that can maintain that technological neutrality over time consistently with an originalist methodology.
[BARBER] Yeah we have time for just a few questions uh Rebecca has the microphone so uh if you have a question she will come to you. Are there are there any questions?
[AUDIENCE QUESTION] So Professor Kerr in your framework what do you do with the third-party Doctrine which takes a pretty well maybe it takes a fairly mechanical view of what reasonable expectation of privacy means and doesn’t look too kind of what you’re describing in terms of expansion of the effect of these houses etc?
[ORIN] Yeah so I think the third party Doctrine is just the subjective expectation of privacy tests that’s all Justice Harlan was trying to do so if you you can’t reveal something to people and then say you have Fourth Amendment rights against people knowing it uh and so that idea had been going back to 1877 and ex parte Jackson and it had been in the undercover agent cases I think that’s all Justice Harlan had in mind so that that rule is retained there’s questions how it applies to the technological setting and that’s um you know the kinds of issues you get into a carpenter but I think that is correct it just got morphed into the reasonable expectation of privacy test really inadvertently when people read Justice Harlan’s paragraph with the two-part test and mistaken they didn’t think he says actually this is a summary of prior cases but he doesn’t add citations if you go back and you know read all the 1960s cases it’s pretty– to my mind it’s clear that he means undercover agents he means actual exposure not a reasonable expectation of privacy idea and that’s that’s I think why the the third party doctrine has kind of a bad rap because it wrongly morphed into a different part of the test and then you say like well what is that doing there that doesn’t seem to make sense it makes sense as just an exposure idea that if you share you know if I tell you something and someone asked you what I said you’re allowed to say what I said because I exposed that to you and so there’s no there’s no Fourth Amendment search involved.
[BARBER] Other questions? None appearing. Well please join me in thanking our panelists oh wait wait one more question
[ORIN] I think it’s about Marcus Aurelia.
[BARBER] It is about the emperor the last enlightened emperor.
[AUDIENCE QUESTION] Is it bad if it’s not? If you look at the common law, in Britain they do have reasonable expectation of privacy test but they they apply it to press law and they say that if you should have a reasonable expectation of privacy the Press cannot reveal that information and so I wonder with your historical analysis of where the expectation of privacy test comes from in the United States um would you say there was an influence from Britain? Do you think there was an influence to Britain? I don’t know is there any is there any any indication that U.S. has looked to that kind of common law at all when developing their own tests? [ORIN] Yeah so the question of influence in terms of the reasonable expectation of privacy tests my sense is that it’s it’s emerged in a couple of different doctrinal settings that were not intended to actually connect to each other. So they’re sort of privacy tort expectation of privacy there’s Fourth Amendment expectation of privacy there’s legal ethics expectation of privacy and they’re all kind of doing different things with similar phrases and the phrase seems to have actually originated um contrary to uh Judge Schneider’s article he was the lawyer who had argued Katz he basically credits himself having come up with a test as I listen to the oral argument in Katz it was Justice Fortis’s characterization of the case law where they’re trying to figure out kind of what’s the home or effective equivalent it’s something private like home-like where you have a reasonable expectation of privacy like you’d have in the home or in effect. So so I think it kind of just emerged in the Katz litigation that that phrase emerged in the cast litigation mostly from Justice Fortis and is trying to figure out like it’s it’s not just physical intrusion into a home what is it and they were just grappling for words to try to capture that concept.
[BARBER] Want to add anything to that, Bill?
[CUDDIHY] No uh I think we probably exhausted our students and uhh–
[BABRER] We’ve also exhausted our time so thank you all for for coming and please join me in thanking our panelists.