Fourth Amendment Textualism
The Fourth Amendment’s prohibition of “unreasonable searches” is one of the most storied constitutional commands. Yet after decades of Supreme Court jurisprudence, a coherent definition of the term “search” remains surprisingly elusive. Even the justices know they have a problem. Recent opinions only halfheartedly apply the controlling “reasonable expectation of privacy” test and its wildly unpopular cousin, “third-party doctrine,” with a few justices in open revolt.
These fissures hint at the Court’s openness to a new approach. Unfortunately, no viable alternatives appear on the horizon. The justices themselves offer little in the way of a replacement. And scholars’ proposals exhibit the same complexity, subjectivity, and illegitimacy that pervade the status quo.
This Article proposes a shift toward simplicity. Buried underneath the doctrinal complexity of the past fifty years is a straightforward constitutional directive. A three-part formula, derived from the constitutional text, deftly solves the Fourth Amendment “search” conundrums that continue to beguile the Court. This textualist approach offers clarity and legitimacy, both long missing from “search” jurisprudence. And by generating predictable and sensible answers, the proposed framework establishes clear boundaries for police investigation while incentivizing legislators to add additional privacy protections where needed.
*Professor of Law and University Professor for Teaching Excellence, William & Mary Law School. Thanks to Evan Caminker, Bennett Capers, Adam Gershowitz, Rachel Harmon, Orin Kerr, Jamie Macleod, Erin Murphy, and Chris Slobogin for comments on an early draft, and to Fred Dingledy for research support.