Forgotten "People": Reviving Textualism in the Fourth Amendment

For more than a century, the Supreme Court has struggled to develop a coherent and sustainable theory of the Fourth Amendment. Before the ink is dry on a new Fourth Amendment opinion, it is cabined, abrogated, or outright overruled. As one scholar has commented, the “evolution of Fourth Amendment doctrine over the past century bears a striking resemblance to Hamlet’s descent into insanity.” While the Court vacillates between “theories” of the Fourth Amendment that might bring clarity to a difficult body of constitutional law, the rights it bespeaks lie vulnerable and unprotected. This Article argues that the problem flows from a failure to honor those textualist and originalist principles the modern Court espouses.

But there is hope. By honoring the full text of the Fourth Amendment—which speaks in both communitarian and atomistic terms—jurists can discover principled solutions to vexing Fourth Amendment puzzles. Beginning with a theoretical framework, this Article outlines how a construction of the Fourth Amendment that is grounded in text and history can lead to practical, tangible answers for courts struggling to adapt to the “seismic shifts” brought on by rapidly evolving technologies.