New Law Review Article: Fourth Amendment Textualism by Jeffrey Bellin, posted on SSRN. Abstract:
The Supreme Court’s inability to coherently define the term “search” plagues its Fourth Amendment jurisprudence. Even the Justices know they have a problem. Recent opinions only half-heartedly apply the controlling “reasonable expectation of privacy” test and its reviled cousin, “third-party doctrine,” with a few Justices in open revolt.
These fissures hint at the Court’s openness to a new approach. Unfortunately, no viable alternatives appear on the horizon. The Justices themselves offer little in the way of a replacement. And scholars’ proposals exhibit the same complexity, subjectivity, and illegitimacy that pervades the status quo.
This Article proposes a shift toward simplicity. Buried underneath the doctrinal complexity of the past fifty years is a straightforward constitutional directive. A simple three-part formula, derived from the constitutional text, deftly solves the Fourth Amendment “search” conundrums that continue to beguile the Court. This textualist approach offers clarity and legitimacy, both long missing from “search” jurisprudence. And by generating predictable and sensible answers, the proposed framework establishes clear boundaries for police investigation, while incentivizing legislators to add additional privacy protections where needed.