The first area in need of work is what qualifies as a “search.” In the 20th century, the Court took two distinct approaches to the question, but neither was satisfying either doctrinally or in the breadth of protections they offered our persons and property. In large part, that is because both the physical trespass approach and the “reasonable expectations of privacy” test attach unnecessary preconditions on government actions before they are considered a search for constitutional purposes. Under the trespass test, for instance, an officer must physically enter one of the four areas enumerated in the Fourth Amendment, while under the “reasonable expectations of privacy” test, courts must decide that the government’s actions infringed on a claimed expectation of privacy that society, in the judge’s view, would deem reasonable.
There is a far simpler approach, one that is faithful to both to the Fourth Amendment’s text and the Framers’ original understanding. Back when the Fourth Amendment was first enacted, the term “search” was not some unknown legal term of art, but a common word everyone understood. Dictionaries from the time show that “search” meant the same thing back then that it does now: “‘[t]o look over or through for the purpose of finding something; to explore; to examine by inspection.’”
So to the Framers, the government conducted a “search” whenever it or its officers undertook “a purposeful, investigative act” with respect to your person or property. This “original meaning” test keeps simple things simple. Unlike the trespass test, the original meaning test doesn’t require the government to physically intrude on you or your things to trigger the Amendment’s protections. And unlike the “reasonable expectations of privacy test,” it doesn’t ask judges to ponder whether the government’s actions infringed on an expectation of privacy that society would deem reasonable. All it asks is whether the government has investigated you or your property so it could gather information.
By keeping things simple, this “original meaning” test provides benefits over both the “trespass” and “reasonable expectations of privacy” tests. First, it retains the baseline protections that Americans currently receive under both existing tests. If the government trespasses onto private property to obtain information, the original meaning test says that’s a search subject to Fourth Amendment scrutiny. And if the government undertakes non-physical investigative techniques like tapping a phone conversation, using a thermal imaging device to look inside someone’s home, or accessing their phone’s location data to learn where they have gone, the original meaning test would say those are searches too, since in those situations the government investigated them and their property to learn things.
Second, the “original meaning” test makes Fourth Amendment law more objective and predictable. Under the “reasonable expectations of privacy” test, judges must act as weathervanes of society’s expectations about the degree of privacy people can “reasonably” expect. This is a hopelessly subjective and circular task in the best of times given that society isn’t a monolith. And as technology grows, the “reasonable expectations of privacy” test weakens our constitutional rights just at the same time the government’s ability to acquire information grows. By contrast, the “original meaning” test is both easy to administer and technologically neutral. It simply asks whether the government conducted a purposeful investigative act towards you or your property no matter how the government accomplished that search.21 By focusing on a simple historic fact, the original meaning test makes answering whether a search occurred a simple matter that does not require judges to make policy judgments about the degree of privacy society is willing to accept.
Lastly, the original meaning test is an intuitive standard that both officials and the public can easily understand. All it asks is whether the government took a concrete investigative act toward you or your property. And by asking that question, the original meaning test puts less weight on the initial question of whether the government conducted a search, and instead focuses on the substantive question of whether the government’s investigative act was a “reasonable” one.
How to determine whether a “search” is “reasonable”
The Court has repeatedly stated that it strives to preserve “that degree of privacy against government that existed when the Fourth Amendment was adopted,” Kyllo v. United States, 533 U.S. 27, 34 (2001). But in recent years the Supreme Court has strayed from that mission by judging whether a government search or seizure is “reasonable” by “balancing its intrusion on the individual’s Fourth Amendment interests against its promotion of legitimate governmental interests.” In other words, to decide what is “reasonable,” modern day judges put themselves in the position of deciding not just how important your constitutional rights are, but whether those rights should yield in the name of efficient law enforcement.
This approach elevates judges into philosopher-kings, deciding what in their mind should be reasonable, and then imposing that decision upon the body politic. Moreover, this interest-balancing approach invariably diminishes our right to be secure. When judges inspect the government’s side of the ledger, they opine about the broad societal harms that would flow from holding the government’s search unreasonable. But when those same judges consider the people’s right to be secure, few think beyond the rights of the particular defendant before them. That’s why scholars have said that “the case-by-case and balancing tests lack objective criteria as guides and . . . [have] steadily expanded the permissibility of governmental intrusions and deprecated individual liberty.”
The Framers would be shocked by judges’ modern interest-balancing method of deciding whether a government search or seizure is “unreasonable.” Today, English speakers see the word “unreasonable” and tend to think of it as something is “not guided by or based on good sense.” So it’s understandable that many judges would see themselves as the arbiter of whether the government’s search and seizure made “good sense” by weighing the expected social benefits and costs of its action.
But to the Framers, the term “unreasonable” had a far different meaning, one rooted in the common law. To them, whether a search was reasonable or not didn’t turn on any subjective weighing of costs and benefits, but on whether the government’s actions were consistent with the common law as established in England and the American colonies. Searches and seizures that exceeded the common law’s boundaries were deemed “unreasonable” and unenforceable.
The Framers’ conception of “reasonableness” as turning on the common law was well grounded. Almost two hundred years before the Fourth Amendment, courts in England struck down statutes that went against “Common Right and Reason”—a term used for basic principles of the common law. So when a statute was “against reason,” it was contrary to the common law and therefore void.
Writers in both England and America shortened the phrase “against Common Right and Reason” to “unreasonable,” but the meaning did not change. These writings, along with dictionaries from the time of the Fourth Amendment’s enactment, show that the Framers understood “unreasonable” laws to be those that fell outside the boundaries of the settled rules of the common law. This includes John Adams, who repeatedly stated both it was “Reason of the Common Law to control an Act of Parliament” and that the Stamp Act England imposed on the colonies was void because it was “against reason.” Framing-era cases confirm this understanding. See, e.g., Clark v. Litchfield County, 1 Kirby 318, 319–20 (Conn. Super. Ct. 1787) (citing Coke’s Rep. 4th part, 84; 1 Stra. 429).
So when the Framers inserted the word “unreasonable” into the Fourth Amendment, they were tying the scope of government’s search and seizure power to the bounds of the common law of 1791. And under the common law, government officials generally had to get a warrant from a judge, along with all the particularities that that entailed, before they could enter and search private property. Adams specifically wrote that requirement into Article 14 of the Massachusetts Declaration of Rights, which James Madison used as the template for the Fourth Amendment.
This history shows that whether a given search or seizure is reasonable does not turn on what a modern-day judge might think, but on whether the search or seizure ran afoul of common-law precepts. It shows that the term “unreasonable” has a definite meaning—contrary to the common law of 1791—that stands fixed in time. Indeed, Supreme Court Justice Joseph Story wrote in his commentaries that the Fourth Amendment “seems indispensable to the full enjoyment of the rights of personal security, personal liberty, and private property. It is little more than the affirmance of a great constitutional doctrine of the common law.” Joseph Story, Commentaries, at § 1005.
How We’re Fighting Back
Our right to be secure deserves better than its current treatment. So IJ’s Project on the Fourth Amendment will demonstrate to the public the importance of the Fourth Amendment for exercising and enjoying our property rights. And it will persuade courts to get rid of the confusing and contradictory Fourth Amendment rules that currently exist. In their place, the Project is offering courts a fresh approach to search-and-seizure law that is simple to understand, consistent with original understanding, and broadly protective of our right to be secure.
IJ’s Project on the Fourth Amendment will take aim at the doctrines that allowed for the horror stories that both IJ clients and others have experienced. And in so doing, IJ will convince courts that all purposeful investigative acts by government officials are “searches” and that whether those searches are “reasonable” turns not on judges’ personal beliefs, but on whether they are consistent with the protections the Framers intended. These reforms are critical to ensure that Americans can feel secure in our persons and property for generations to come.