How Definitive is Fourth Amendment Textualism?

Professor Jeffrey Bellin’s excellent article advances a comprehensive and straightforward textual approach to determining what policing activities constitute “searches” triggering the protections of the Fourth Amendment. Bellin’s thesis is that a text-based approach to interpreting the Amendment is superior to the Supreme Court’s current approach, which ever since Katz v. United States has defined “search” primarily by reference to a non-textual “reasonable expectation of privacy” standard. After soundly criticizing the ungrounded and highly subjective nature of the Katz test, Bellin declares that the Court should instead simply follow where the text leads: the Amendment protects people from a search, meaning an “examination of an object or space to uncover information” of their own “persons, houses, papers, and effects.” No more, no less. Such a textual approach generates new doctrinal rules that would replicate Katz’s outcomes in many respects and provide either more or less protection in others.