Matthew Tokson (University of Utah – S.J. Quinney College of Law) has posted Fourth Amendment Originalism and the Trespass Test (55 pages) on SSRN. Here is the abstract:
The trespass test provides that any physical intrusion on personal property for investigative purposes is a Fourth Amendment search, presumptively requiring a warrant. The Supreme Court established the test in 2012, describing it as a restoration of original Fourth Amendment law, grounded in text and history. This Article challenges the Court’s originalist account of the trespass test, showing how it diverges from Founding-era understandings and practices. More broadly, the Article draws on the extensive historical literature of the Fourth Amendment and identifies the original public meaning of “unreasonable searches,” illuminating the original Amendment’s scope and power.
Equally important, the Article contends that this originalist interpretation of the Fourth Amendment’s meaning is normatively and practically undesirable in the modern era. The unsuitability of the original Fourth Amendment for present-day application reflects the radically different paradigm of law enforcement that prevailed in the Founding era, when professional police departments did not exist, and most investigations were conducted by crime victims rather than government officials. When the circumstances surrounding a constitutional provision have changed to a sufficient extent, following the provision’s original meaning may not only undermine its original purpose but also produce exceptionally arbitrary results. In these situations, originalism can become so normatively unacceptable that even originalists may seek alternative approaches
Posted at 6:05 AM