[Orin Kerr] The Challenge of Fourth Amendment Originalism and the Positive Law Test

My friend and co-blogger Will Baude argued recently that his Positive Law test of the Fourth Amendment is an originalist approach. I find that position intriguing, in part because it brings up the difficulty of identifying what it means for a view of the Fourth Amendment to be originalist. It seems to me that if the Positive Law test of searches is originalist, then all of my writings on what is a Fourth Amendment search are also originalist, or at least are perfecty consistent with originalism. Indeed, I have a hard time thinking of any proposed Fourth Amendment search tests that aren't consistent with originalism. And most of them seem more plausibly correct from an originalist perspective than the Positive Law test.

That raises an interesting question for a Supreme Court Justice who is a committed originalist: Does the method of originalism provide any guidance in interpreting what is a Forth Amendment search? The practical answer may be "no," or at least "not all that much." And the Positive Law test seems particularly hard to reach from an originalist perspective. This post will explain why.

I. The Challenge of Fourth Amendment Search Originalism

As I have written before, the big challenge of Fourth Amendment origialism is that the framing-era materials are very sparse. Here's most of what we know. First, the enactment of the Fourth Amendment was largely a response to a few high-profile English cases on general warrants, such as Entick v. Carrington and the Wilkes cases. The Fourth Amendment was largely a response to those cases, as it specifically prohibits general warrants in the warrant clause. We know that there was a body of English law covering certain aspects of search and seizure at the time of the framing, most of it focused on the standard for a lawful arrest (see, for example, 4 Blackstone's Commentaries Ch. 21), although we don't know how much of that English law would have been understood to be adopted by the Fourth Amendment's enactment.

We also know that several states had enacted search and seizure restrictions in their state constitutions before the Fourth Amendment was proposed, and we have good reason to think that the federal Fourth Amendment was designed to do more or less what they did. But we don't have much of a sense of what those state constitutional provisions did beyond ban general warrants. Finally, we have the text of the Fourth Amendment, the first clause of which states: "The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated[.]"

That's at least a modest amount of history to go on, so there are some Fourth Amendment questions that originalism can shed some light on. For example, if someone proposed that the Fourth Amendment allows general warrants, we could confidently say that was inconsistent with an originalist approach.

But here's most maddening thing about trying to be a Fourth Amendment originalist. The existing historical materials shed almost no light on the original public meaning of what today is the most important issue, the scope of "searches." (I'll base this discussion in large part on this article, which you should consult if you want more details.) That specific issue didn't come up for a bunch of reasons, among them that there was no independent cause of action for unreasonable searches and seizures. The scope of law enforcement privilege in investigations generally came up as affirmative defenses to liability for other causes of action, such as civil trespass suits (where a proper warrant could justify the trespass of a house search) or a civil suit for false imprisonment (where proper cause could justify an arrest that had seized a person). Given that, it just wasn't necessary to define what counted as a search or seizure. It didn't matter.

And then as now, "searches" can mean a range of things. A search could mean physically breaking into and rummaging through a place. But then it might just mean scrutinizing something closely. Or maybe it means just looking for something from afar. Which of those definitions might have been assumed by the public at the time of the Fourth Amendment's enactment?

Based on my research, I think we just don't know. On one hand, the few cases and the occasional framing-era discussion of the Fourth Amendment involved and referred to phys