Volokh Conspiracy: Yes, the Positive Law Model of the Fourth Amendment is Originalist by Will Baude
Orin asked me to correct the record; I’m correcting it.
I have not had much to say about the Supreme Court’s pending case of Byrd v. United States, which asks whether a rental car driver can object to the search of a car when he is permitted to drive by the renter, but not authorized by the rental car contract.
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The originalist argument for the positive law model is falsifiable if somebody else presents a better account of Entick, Wilkes, and other founding-era cases, and of the role positive law played in enforcing the Fourth Amendment. But ultimately, I’m not sure why all of this matters to Orin, since my understanding is that he is not an originalist himself and has non-originalist reasons for rejecting our view.