The Federalist Society produced a webinar recently that I found fascinating, not only because I was a panelist. There was a marked divergence of opinion on Fourth Amendment law. I believe I know where the law is headed. We should and will use the text of the Fourth Amendment to interpret it.
Stanford Law Professor Orin Kerr offered a fascinating and, for me, troubling defense of the status quo in Fourth Amendment methodology. Brent Skorup from the Cato Institute moderated. Watch the whole thing or read on to whet your appetite.
Several years ago, I had a strange and concerning debate with litigator colleagues about the Fair Credit Reporting Act (FCRA). I believe the FCRA preempts state law causes of action because the statute says it does (in annoyingly complex terms).
“The FCRA doesn’t preempt state law!” brayed my litigator friends assertively, like litigators. “There is no case that holds that!”
That debate matters because I believe federal preemption blocks alternatives to administrative regulation that might more effectively tighten up practices in the credit reporting industry. For example, defamation actions against those spreading false and derogatory information could do better than the baroque regulatory superstructure we now have around credit reporting.
But the debate obviously went to a different level. Do you really need case law when you have a statute? I was surprised and confounded to find people believing that the text is not really the law until a court says it is.
There’s a reason that text should be a reliable account of what the law is: Law guides individuals in conducting themselves and arranging their affairs. It’s a strange kind of scam, serving a parasitic legal industry, if people can’t read a legal text and know what it means. These are ideas I expounded upon decades ago in a defense of student-run law reviews.
Textualism is also the most democratic way of doing law. Justice Antonin Scalia preferred textualism because of the “danger” that “judges will mistake their own predilections for the law.” Keith Whittington has written that “the ideal of popular sovereignty would be meaningless if others could set the actions of the sovereign aside” in favor of new interpretations that diverge from their original meaning. This penchant for democracy is no conservative or Federalist Society jag, at least not any more. At her confirmation hearings, Justice Ketanji Brown Jackson said, “I am focusing on original public meaning because I’m constrained to interpret the text.”
We have court decisions now affirming my view of the FCRA, so I’m right. Nyah, nyah, nyah-nyah, nyah. But that divergence between text and court decisions inhabited my discussion with Professor Kerr in a similar way. (A different way, too—he’s not a brusque litigator.)
Kerr is the author of the theory in Fourth Amendment law of “equilibrium-adjustment.” When the Supreme Court grapples with new technology, Kerr says, it “adjusts the scope of Fourth Amendment protection in response to new facts in order to restore the status quo level of protection.”
That’s a pretty good description of how the Court vamps when it doesn’t know what to do. But I don’t think we should embrace that as a methodology. It leaves lower courts—and us all! —reading tea leaves from nine different cups to try to figure out what our constitutional rights are. And it has produced, among other things, a doctrine holding that any information we transfer to another cannot enjoy constitutional protection, no matter what pledges of confidentiality, contracts, or property rights might protect our information. That does not seem to be in equilibrium.
My preference would be for the Court and advocates before it to apply the Fourth Amendment according to its terms. This may be challenging in modern contexts, but textualism can be done here, too. I articulated a way to interpret the Fourth Amendment in light of modern problems several years ago in an article aptly titled, “Administering the Fourth Amendment in the Digital Age.”
You would ask:
- Was there a search?
- Was there a seizure?
- Was any search or seizure of “persons, houses, papers, [or] effects”?
- Was any such search or seizure reasonable?
These questions have answers, even when it comes to seizures and searches of communications and data. Kerr’s own past writings articulate fairly well when data is seized and when it is searched. You can deal with high-tech challenges like facial recognition with a textual approach.
The webinar is an interesting one, I think. Not far beneath the surface is the question of what the law is. Should we really look at a written Constitution and wonder what our Supreme Court’s adventurous doctrines have added or subtracted?
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