up the Fourth Amendment a number of times in our conversation, and
I would like to talk a little bit more about the Constitution and
whether it's meaning changes and so
I'd like to go back to the Fourth Amendment topic you brought up
in my office. You said I think that Origen and correct me if I'm
this summarizing your position, you said that originalism wouldn't
have much to say about the Fourth Amendment because the founding
fathers never conceived of a tool, a piece of telecommunications
equipment like this, And so I think during our conversation, you
said that the original meaning of the Fourth Amendment won't tell
you much about what to do with the new technology.
My guess is that originalists and Scalia in particular would disagree.
So what? What do you do if the text of the Fourth Amendment doesn't
answer a question? Where do you go next?
Well, Senator just to clarify what I intended to say. And I may well
have misspoken. Um
There is an originalist take. I think on the question of what happens
with a cell phone, Um as the Supreme Court held in the Riley case,
there was a way in which you
Assess.
Principles of the Constitution the text of the constitution and apply
it to modern technology. And you have to
Because there's no question that cell phones didn't exist at the
time of the founding. So if the originalist principle is we look
only at the Constitution as it relates to things.
That existed at the time of the founding, There would be no answer
to what to do about a cell phone. And so what the Supreme Court has
said and done is
To determine
That the principle of the Fourth Amendment with respect to searches
is to determine whether there is a reasonable expectation of privacy.
They also have looked at property interests with respect to whether
or not there is an invasion of privacy.
And then determined from history.
What that reasonable expectation of privacy related to back at the
time of the founding.
And analogized.
Two current circumstances related to things like cellphones. It's
It's a method of interpretation that allows you to instead of
The alternative, which would be
Don't worry about the history. Just look at the words in the Constitution
and say, What do I think is reasonable or unreasonable, with respect
to police officers searching cellphones?
That's not the way the Supreme Court handles it. They try to determine
What was unreasonable.
Historically.
And then given those principles Historically, it would be unreasonable
for police officers to enter someone's home to rifle through their
papers and documents.
They then analogized to current circumstances and the fact that a
cell phone is like your personal file cabinet and they say, Okay,
given what we understood the framers to have intended about the need
for a warrant or the need for protection against unreasonable searches.
We're going to apply that
To modern circumstances. It's still an originalist way of analyzing.
The current dispute.
So are there non originalist ways.
To wrestle through that same question. And what would they be?
One could imagine that rather than referencing history at all that
the court would look at the Constitution, it says no one reasonable
searches and seizures.
And would just ask in the in, you know, in light of modern sensibilities,
in light of what we would think would be reasonable today or what
the court itself would think would be reasonable today.
We replied that that modern understanding
Two.
The cell phone situation.
And the danger. I think Justice Scalia would say is that that's a
kind of framing.
That permits judges.
To make a determination based on their own views, rather than
Hewing themselves as as Senator, Lee said. Before that, justice,
Barrett pointed out, hewing themselves to the text of the Constitution.
And does Breyer have a different view?
You know, I haven't um
I'm just trying to think I My understanding of the living constitutional
principle is that it's closer to
Looking at the needs of modern society. But I'm not well versed in
it, in part because the Supreme Court has now so clearly taken the
historical perspective.
Ah, the originalist perspective in its