By 5-4, the U.S. Supreme Court ruled in Carpenter v. United States on June 22 that the government needs a warrant issued under probable cause to obtain third-party cellphone site records of an individual.
In his majority opinion, Chief Justice John Roberts was joined by the court’s four liberal justices. Most Americans probably agree with the outcome because “it feels right,” which is not a constitutional standard but a populist one.
Justices Anthony Kennedy, Clarence Thomas, Neil Gorsuch and Samuel Alito each filed dissenting opinions. Normally, a conservative and originalist like me would see such an alignment on the court as a loss for some important constitutional principle. But in Carpenter, this alignment only shows the dysfunctional state of judicial interpretation and precedent for the Fourth Amendment.
The dissenting opinions written by Justices Thomas and Gorsuch are reliably grounded in the original public meaning of the Fourth Amendment. Both justices criticized a 20th-century judicial interpretation that the Fourth Amendment protects an “expectation of privacy,” which, of course, is found nowhere in the text, and instead articulate the original bases of the Fourth Amendment as grounded in property rights and notions of trespass.
Justice Gorsuch’s dissent seems to side more with the outcome reached by the majority in Carpenter, but he finds his way there through originalism not argued by Carpenter’s lawyers themselves, an oversight Gorsuch rightfully laments.
Justice Alito’s dissent complains that the majority opinion “guarantees a blizzard of litigation, while threatening many legitimate and valuable investigative practices upon which law enforcement has rightfully come to rely.”
The genius of the Fourth Amendment lies in its dual, if not competing, purposes of protecting society from miscreants, while protecting our right of security in our persons, houses, papers and effects. I wish Justice Alito would consider the law enforcement abuses particularly demonstrated by the administration of President Barack Obama, which the public has come to know.
Related: Privacy Rights of Cellphone Users Affirmed by Supreme Court
Justice Alito’s dissent invokes arguments based in originalism, but his analysis, however, is ultimately stuck in the judicial activism of an egregiously bad New Deal Supreme Court decision, Oklahoma Press Publishing v. Walling.
The court in that opinion created a substitute for “probable cause” by creating a standard of “a purpose authorized by Congress.” That activist judicial override of the Fourth Amendment opened the door to a new breed of law enforcement searches and perusal of private papers under the coercive threat of fines or jail, which was a method of law enforcement not used even by King George III.
That New Deal court opinion weaponized the administrative state, and subsequent expansion on that judicial abomination by Congress, the courts, and even state and local governments was presciently predicted by Justice Frank Murphy in a brief but noteworthy dissent.
Justice Alito traces the history of probable cause-free subpoenas in litigation between parties back to their 14th century English roots, and notes how grand juries were used in England before our Bill of Rights enshrined them.
But subpoenas issued in litigation during a case and controversy between two parties are clearly not the same as government agencies’ using such powers unilaterally to search private records. And grand juries are a right protected by the Fifth Amendment, not a power of government authorized by the Constitution.
They are a check on prosecutors before subpoenas are issued. There is no such antecedent protection in place when administrative agencies and law enforcement officials issue their administrative subpoenas. Carpenter will not upend grand jury or litigation subpoenas, which existed at the founding.
Justice Alito claims “there is no evidence that these [probable cause-free] writs were regarded as “searches” at the time of the founding.” But there is no evidence of these unilateral, probable cause-free writs to search because they did not exist at the time of the founding.
Even the Writs of Assistance were issued by judges, but the process involved entry onto premises to collect papers and effects. “Search” subpoenas compelling production of documents did not develop until many decades later. Miscreant government obviously thought it may have found a loophole in the Fourth Amendment.
The common law governing search and seizure began its development long before the abuses under the Writs of Assistance. In the 1760s, English Chief Justice Pratt gave a history lesson about how the crown had come to usurp and abuse powers to search and seize in violation of “ancient” principles and the separation of powers inherent in that process.
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In Entick v. Carrington, Pratt explained grounds for why a “search” includes the mere examination of papers by the government: “Papers are the owner’s goods and chattels; they are his dearest property; and are so far from enduring a seizure, that they will hardly bear an inspection; and though the eye cannot by the laws of England be guilty of a trespass, yet where private papers are removed and carried away, the secret nature of those goods will be an aggravation of the trespass, and demand more considerable damages in that respect.”
The Oklahoma Press Publishing opinion on which Justice Alito relies employs claims that probable cause-free administrative subpoenas are acceptable under what’s known as the doctrine of visitation. But Justice Antonin Scalia’s 2009 opinion in Cuomo v. Clearing House Association notes this common-law doctrine is not the “power to enforce the law” of the community, a legal principle, which entirely upends the New Deal court’s judicial activism to weaponize the administrative state.
Justice Alito has been a champion of sound constitutional interpretation recognizing the proper limits of power among the respective branches of government. On the Fourth Amendment, however, he has a blind spot that aids the dangerous administrative state and abusive law enforcement.
Mark J. Fitzgibbons is president of corporate affairs at American Target Advertising and co-author with Richard Viguerie of “The Law That Governs Government.”
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