The weak link in this system was the judge. If judges were too lax, then warrants would be too easy to get[8], and weak judges were a concern for the framers. Under British rule judges had been appointed by the Crown, and by the time of the Revolution, the Crown was the enemy. Having seen much abuse of the power to issue warrants, the framers were not keen to give judges control in determining whether the government’s searches were reasonable.
In particular (as I described in Chapter 2), the framers had in mind some famous cases in which judges and the executive had issued “general warrants” giving government officers the power to search generally for objects of contraband[9]. In modern terms, these were “fishing expeditions.” Because the officers had warrants, they could not be sued; because the judges were largely immune from suit, they could not be sued. Because no one could be sued, there was a temptation for abuse. The framers wanted to avoid just such judge-made abuse. If there was to be immunity, it would come from a jury, or from a successful search.
This is the origin of clause (b) of the Fourth Amendment. The framers required that judges, when issuing warrants, name particularly “the place to be searched, and the persons or things to be seized”, so that judges would not be able to issue warrants of general power. The immunity of the warrant would be limited to particular people and places, and only when probable cause existed to issue the warrant.
This constitutional regime was designed to balance the people’s interests in privacy against the legitimate need for the government to search. The officer had an incentive to get a warrant (to avoid the risk of personal liability); the judge had a rule that restricted the conditions under which he could issue a warrant; and together these structures limited official invasions of privacy to cases that presented a strong reason to invade.
That much is background. But notice what follows.
The original regime presupposed a great deal. Most obviously, it presupposed a common-law system of trespass law — it was the threat of legal liability from trespass law that created the incentives for officers to seek warrants in the first place. This presupposition placed property at the core of the Constitution’s original protections.
Equally important, the regime presupposed much about the technology of the time. The Fourth Amendment focuses on trespass because that was the primary mode of searching at the time. If it had been possible simply to view the contents of a house without going inside, the restrictions of the Fourth Amendment would have made little sense. But the protections of the amendment did make sense as a way to draw the balance between government’s power to search and the people’s right to privacy given the regime of trespass law and privacy-invading technologies that prevailed at the end of the eighteenth century.
Presuppositions — what is taken for granted or considered undebatable — change[10]. How do we respond when such presuppositions change? How do we read a text written against a background of certain presuppositions when those presuppositions no longer apply?
For Americans, or for any nation with a constitution some two hundred years old, this is the central problem for constitutional interpretation. What if state governments, for example, were simply to abolish rights against trespass? Would the amendment be read any differently[11]? What if technologies for searching were to change so dramatically that no one would ever need to enter another’s property to know what is kept there? Should the amendment then be read differently?
The history of the Supreme Court’s treatment of such questions lacks a perfectly clear pattern, but we can identify two distinct strategies competing for the Court’s attention. One strategy is focused on what the framers or founders would have done — the strategy of one-step originalism. The second strategy aims at finding a current reading of the original Constitution that preserves its original meaning in the present context — a strategy that I call translation.
Both strategies are present in the Olmstead wiretapping case. When the government tapped the phones of the defendants without any warrant, the Court had to decide whether the use of this kind of evidence was permissible or consistent with the principles of the Fourth Amendment. The defendants said: The government must get a warrant to tap phones. The government said: The Fourth Amendment simply does not apply.
The government’s argument was quite simple. The amendment presupposed that the government would be trespassing to search, and it was regulating the conditions under which officers could trespass. But because wiretapping is an invasion of privacy without a trespass, the government is able to tap the defendants’ phones without ever entering their property; the amendment therefore does not apply. It simply does not reach to protect invasions that are invasions without trespass.
The Supreme Court agreed. In an opinion written by Chief Justice (and former President) William Howard Taft, the Court followed the government.
The amendment does not forbid what was done here. There was no searching. There was no seizure. The evidence was secured only by the use of the sense of hearing and that only. The language of the amendment cannot be extended and expanded to include telephone wires reaching to the whole world from the defendant’s house or office[12].
This conclusion was received with surprise and shock. Already much of life had moved to the wires. People were beginning to understand what it meant to have intimate contact “online”; they counted on the telephone system to protect their intimate secrets. Indeed, telephone companies, having strongly fought the authority that the government claimed, pledged not to assist the government except as required by law[13]. This resistance notwithstanding, the Court concluded that the Constitution did not interfere with invasions of this sort. It would not have done so when the Constitution was written; it did not do so at the time when the case was decided.
But the dissent written by Justice Brandeis (there was also a dissent by Justices Holmes, Stone, and Butler) had a different view. As with Taft’s opinion, the focus was fidelity. But his fidelity was quite differently conceived.
Brandeis acknowledged that the Fourth Amendment, as originally written, applied only to trespass[14]. But it did so, he argued, because when it was written trespass was the technology for invading privacy. That was the framers’ presupposition, but that presupposition had now changed. Given this change, Brandeis argued, it was the Court’s responsibility to read the amendment in a way that preserved its meaning, changed circumstances notwithstanding. The aim must be to translate the original protections into a context in which the technology for invading privacy had changed[15]. This would be done, Brandeis argued, by applying the Fourth Amendment’s protection to invasions that were not themselves trespasses.
These two opinions mark two different modes of constitutional interpretation. Taft finds fidelity by simply repeating what the framers did; Brandeis finds fidelity by finding the current equivalent to what the framers did. If we followed Taft, Brandeis argued, we would defeat the protections for privacy that the framers originally set; if we followed Brandeis, Taft implied, we would be adding something to the Constitution that the framers had not written.
8.
Indeed, as Professor William Stuntz argues quite effectively, one danger with warrants in general is that judges become lax and yet the product of their work (the warrant) receives great deference in subsequent proceedings; "Warrants and Fourth Amendment Remedies,"
10.
See
11.
See Lawrence Lessig, "Fidelity in Translation,"
15.
"Translation" is not Brandeis's term, though it is a term of the courts. The idea is best captured by Justice Robert H. Jackson in