by Todd Bowen
This post is part of the student blogger project from the summer session of Space Security Law.
Todd Bowen is a 3L from Southaven, MS. He is pursuing a certificate from the National Center for Remote Sensing, Air and Space Law.
Justice Alito begins his concurrence to U.S. v. Jones by writing, “This case requires us to apply the Fourth Amendment’s prohibition of unreasonable searches and seizures to a 21st-century surveillance technique . . . Ironically, the Court has chosen to decide this case based on 18th-century tort law.” Justice Scalia, author of the majority opinion and self-proclaimed Originalist,1 responds to this by claiming, “What we apply is an 18th-century guarantee against unreasonable searches, which we believe must provide at a minimum the degree of protection it afforded when it was adopted.” While this method of interpretation worked in this case (as is evident by the 9-0 ruling), an Originalist method of interpretation will prove to be more difficult in future cases.
According to Justice Scalia, an Originalist is someone whose “manner of interpreting the Constitution is to begin with the text, and to give that text the meaning that it bore when it was adopted by the people.”2 This method of interpretation was depended on to form the majority opinion. For example, Justice Scalia writes, “ . . . our Fourth Amendment jurisprudence was tied to common-law trespass . . . ” He later quotes the case of Kyllo v. United States stating, “At bottom, we must ‘assure preservation of that degree of privacy against government that existed when the Fourth Amendment was adopted.’”
The alternative to Originalism is the concept of the Living Constitution. In the 1931 case of Bain Peanut Co. v. Pinson, Justice Oliver Wendell Holmes, Jr. wrote, “The interpretation of constitutional principles must not be too literal. We must remember that the machinery of government would not work if it were not allowed a little play in its joints.” Justice Alito criticizes the majority opinion in U.S. v. Jones in writing, “But it is almost impossible to think of late 18th-century situations that are analogous to what took place in this case.”
Justice Alito’s criticism highlights the difficulties an Originalist interpretation will face in the future. He comically asks, “Is it possible to imagine a case in which a constable secreted himself somewhere in a coach and remained there for a period of time in order to monitor the movements of the coach’s owner?” While funny to picture, this is perhaps the best way to show how the evolution of technology presents a challenge to the Originalist method. Additionally, Justice Sotomayor’s concurrent opinion hints to problems the Originalist method might face in the future. “And because GPS monitoring is cheap in comparison to conventional surveillance techniques and, by design, proceeds surreptitiously, it evades the ordinary checks that constrain abusive law enforcement practices: ‘limited police resources and community hostility.’”
Justice Alito refers to a Michigan Law Review article by Professor Orin S. Kerr which “aims to reorient current thinking about how the legal system should regulate criminal investigations,” pushing for a focus on legislative rules.3 While this seems to be the ideal answer to problems arising from fast-paced technological changes, the Supreme Court will likely hear another case similar to U.S. v. Jones at some point in the future. The concurrent opinions make it clear that, absent legislative changes, a Living Constitution method of interpretation will soon be necessary to answer Fourth Amendment challenges involving new technology.
1 From Justice Scalia’s March 14, 2005 speech at the Woodrow Wilson International Center for Scholars in Washington, D.C., http://www.cfif.org/htdocs/freedomline/current/guest_commentary/scalia-constitutional-speech.htm
3 Kerr, Orin S., “The Fourth Amendment and New Technologies: Constitutional Myths and the Case for Caution,” 102 Mich. L. Rev. 801, 805-6.