Volokh Conspiracy: The Challenge of Fourth Amendment Originalism and the Positive Law Test

Volokh Conspiracy: The Challenge of Fourth Amendment Originalism and the Positive Law Test by Orin Kerr:

If the Positive Law test is originalist, then what isn’t? A close look at Fourth Amendment history and some recent scholarship.

My friend and co-blogger Will Baude argued recently that his Positive Law test of the Fourth Amendment is an originalist approach. I find that position intriguing, in part because it brings up the difficulty of identifying what it means for a view of the Fourth Amendment to be originalist. It seems to me that if the Positive Law test of searches is originalist, then all of my writings on what is a Fourth Amendment search are also originalist, or at least are perfectly consistent with originalism. Indeed, I have a hard time thinking of any proposed Fourth Amendment search tests that aren’t consistent with originalism. And most of them seem more plausibly correct from an originalist perspective than the Positive Law test.

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