The Fourth Amendment Categorical Imperative

The vast majority of current Fourth Amendment doctrine is unfounded, incoherent, and dangerous. The culprit is the Supreme Court’s 1967 decision in Katz v. United States, which defines “search” as government conduct that violates subjectively manifested expectations of privacy “that society is prepared to recognize as ‘reasonable.’ ” This is pure applesauce. Nowhere will you find a standard dictionary that defines “search” in these terms. Neither will you hear a native speaker of the English language use “search” in this sense unless her mind has been polluted by a semester of studying criminal procedure.

The Court created this definition of “search” out of whole cloth with disastrous consequences for “the right of the people to be secure . . . against unreasonable searches and seizures.” This Essay explains why and offers an alternative that takes seriously the original public meaning of the text.