At Volokh Conspiracy, Orin Kerr: Three Reactions to the Oral Argument in Byrd v. United States. (For earlier discussion of the case, see here). From the introduction:
Unsurprisingly, the Justices were grappling with what kind of test to articulate for when a person has Fourth Amendment rights in a rental car. I hope the Court focuses on the fundamental textual and functional question of when a car is sufficiently that person's that he should have standing to challenge the search. The text of the Fourth Amendment gives people rights in "their" effects, and the century-plus-old doctrine is that Fourth Amendment rights are personal and cannot be vicariously asserted. So the question should be identifying when the car is sufficiently theirs such that they have rights in the car.
As I've noted, that seems like the right originalist question to me. But Professor Kerr continues:
Justice Gorsuch again repeatedly emphasized the property view of the Fourth Amendment. Exactly what he had in mind wasn't clear to me, though. …
At one point, Gorusch suggested that he was applying the [William] Baude and [James]Stern approach, even naming them as a possible standard (see the transcript page 24). This struck me as odd. Baude and Stern expressly reject the trespass-property view of the Fourth Amendment (see pages 1834-36 of their article). Instead, they favor an all-positive-law approach to the Fourth Amendment. They can correct me if I'm wrong, but it seems to me that Baude and Stern do not envision their proposal as an originalist standard that looks to the original public meaning of the text. Rather, they crafted their test from first principles, devising a a new nonoriginalist test that they see as attractive for a range of policy reasons.
Professor Baude intervenes: Yes, the Positive Law Model of the Fourth Amendment is Originalist.
Orin refers here to our article, of The Positive Law Model of the Fourth Amendment, an approach I've also blogged about recently here and here and which Orin has previously criticized on other grounds.
I won't speak for James, but I do think that our view is an originalist one, derived from what we know of the original law of the Fourth Amendment. In our article, we discuss both the original history of the Fourth Amendment and the original remedial structure, and I will let interest readers judge those arguments for themselves. But originalists should have no qualms about subscribing to it.
It is true that our article also contains other arguments in favor of our view, but at least for my part there are two good reasons for that. One is that you need not be an originalist to accept our view for the other reasons we give. The other is that even an originalist might think the historical evidence is equally consistent with more than one view, and might look to other arguments to decide which of the historically-permitted possibilities to adopt. In any event, consider this a correction of the record. We make an originalist argument, even if we also make some non-originalist arguments too.
At least originalism makes a case about searching rental cars interesting.
Posted at 6:57 AM