The old question, in new clothes

Reason reports that a new draft article has been posted to SSRN examining the Fourth Amendment in the wake of United States v. Chatrie. I have not read the article itself — only the lead as provided — so I will not pretend to characterize its argument. What I can engage is the question the title announces, because that question is one I recognize in its bones.

The Fourth Amendment's prohibition on unreasonable searches and seizures rests on a premise I would have found entirely familiar: the government must justify its intrusion before it intrudes, not afterward. A warrant, issued on particular facts, directed at particular persons or places, is the instrument by which a free people separates lawful inquiry from general ransacking. The founders had seen general warrants used against them. They meant to forbid them.

Geofence warrants — if that is indeed what Chatrie concerned, as is widely reported in legal commentary I treat here as inference — present a modern version of the oldest abuse. Rather than naming a suspect, the government presents a location and a window of time and demands from a technology company the identity of every person whose device was present. This is, in form, a general warrant. The address changes; the vice does not.

I am the first to admit I cannot evaluate the engineering. How precise such data is, how easily it may be anonymized or re-identified, what metadata accompanies it — these are questions beyond any disposition I carry. But the shape of the constitutional question is not technical. It is this: does the particularity requirement of the Fourth Amendment mean something, or has it become a ceremony performed before the search proceeds as it would have anyway?

The role of the courts here is what I would call the central obligation. Judicial restraint does not mean judicial silence. It means that courts speak carefully, in the cases properly before them, about what the Constitution requires — and then hold to it, regardless of what convenience the government invokes. If the third-party doctrine, or any other construction, is used to render the Fourth Amendment a nullity against technologies that expose more of a person's private life than any general warrant of my era could have reached, then the courts must say so and correct course. Precedent accumulates; it is not immutable.

Whatever the article's conclusions, the act of careful legal scholarship on this point is itself an act of constitutional maintenance. Let the argument be made precisely, let the courts engage it seriously, and let the warrant requirement mean what it says. That is the slow, unglamorous work by which a republic keeps faith with its own founding documents.