Orin Kerr on WaPo: New draft article: ‘The Effect of Legislation on Fourth Amendment Interpretation’

Orin Kerr on WaPo: New draft article: ‘The Effect of Legislation on Fourth Amendment Interpretation’:

I have posted a new draft article, “The Effect of Legislation on Fourth Amendment Interpretation,” which is forthcoming in the Michigan Law Review. Here’s the abstract:

This Article addresses a recurring question that has divided courts: When judges interpret the Fourth Amendment, and privacy legislation regulates the government’s conduct, should the legislation affect the Fourth Amendment’s meaning? Courts are split three ways. Some courts argue that legislation provides the informed judgment of a co-equal branch that should influence Fourth Amendment interpretation. Some courts contend that the presence of legislation should displace Fourth Amendment protection to prevent constitutional rules from trumping the legislature’s handiwork. Finally, some courts treat legislation and the Fourth Amendment as independent and contend that the legislation should have no effect.

This Article argues that courts should favor interpreting the Fourth Amendment independently of legislation. At first blush, linking the Fourth Amendment to legislation seems like a pragmatic way to harness the experience and skills of the legislature to help implement constitutional values. A closer look reveals a different picture. Investigative legislation offers a surprisingly weak indicator of constitutional values. Linking the Fourth Amendment and statutes raises novel and complex theoretical questions of what links to draw. Linkage also threatens to weaken the system of statutory privacy law by turning the legislative process into a proxy battle for Fourth Amendment protection. Interpreting the Fourth Amendment independently of legislation helps to avoid arbitrary decisionmaking, provides a clear standard, and helps to protect the benefits of legislation.