Katz as Originalism
Kerr, Orin S.
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Abstract
The “reasonable expectation of privacy” test of Katz v. United States is a common target of attack by originalist Justices and originalist scholars. They argue that the Katz test for identifying a Fourth Amendment search should be rejected because it lacks a foundation in the Constitution’s text or original public meaning. This is not just an academic debate. The recent ascendancy of originalists to the Supreme Court creates a serious risk that the reasonable expectation of privacy test will be overturned and replaced by whatever an originalist approach might produce.
This Article argues that originalist opposition to Katz is misplaced. Properly understood, the Katz test is consistent with both originalism and textualism. The reasonable expectation of privacy framework both accurately tracks the constitutional text and reflects a sound interpretation of its original public meaning. Instead of creating a constitutional free-for-all, the test merely preserves the original role of the Fourth Amendment against the threat of technological change.
Ironically, the alternatives that originalist and textualist critics have proposed are either Katz in disguise or are less rooted in text and original public meaning than Katz itself. An originalist might want to restate Katz using the constitutional text. But that is a matter of form, not substance.