When words fail, so does protection

The National Review piece puts the difficulty plainly: the Court's Fourth Amendment doctrine has come to rest on the question of whether a citizen holds a "reasonable expectation of privacy" — a standard that sounds measured but proves, on inspection, to be a moving target. That is precisely the kind of construction a careful jurist should resist. A standard that expands and contracts with changing judicial sentiment is, functionally, no standard at all.

I wrote in the Federalist that the courts must say what the law is — and say it steadily. The original constitutional text offers something more stable than judicial estimates of reasonableness: it prohibits unreasonable searches and seizures against persons, houses, papers, and effects. These are concrete nouns. They describe things that can be located and described with particularity. The moment we replace them with a judge's intuition about social expectations, we have substituted the opinion of the court for the will of the constitution.

This is not a partisan observation. Whether the matter concerns the police reading a citizen's correspondence, or — by reasonable inference to modern conditions — accessing the digital records that serve the same function as correspondence once did, the constitutional question is the same: was the interest invaded one that the text was written to protect? That question can be answered carefully, with discipline. The "reasonable expectation" test, as National Review suggests, too often substitutes a sociological guess for a legal answer.

I am no stranger to the difficulty of applying settled principles to unsettled circumstances. The treaty I negotiated with Britain in 1794 required precise language precisely because vague language invites each party to read its own convenience into the text. The same hazard confronts a court that relies on shifting social expectations: every party reads the precedent to suit the moment.

What should be done? The Court would serve the Republic better by returning, deliberately and without haste, to the text's concrete categories. Let the justices ask not "what does society expect" but "what does the Constitution protect, and was that protection violated?" This is the more demanding question, but it is the honest one. Judicial restraint does not mean judicial timidity; it means the discipline to resolve only the question properly before the court, and to resolve it with language that will bind tomorrow as firmly as today.