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December 13, 2019|Antonin Scalia, Fourth Amendment, Katz v. United States, Kyllo v U.S., Riley v. California

Applying the Fourth Amendment’s Original Meaning to Cell Phones and Heat Sensors

by Mike Rappaport|

A group of NYPD officers making an arrest (A Katz/Shutterstock.com).
A proper understanding of the Fourth Amendment can accommodate modern technology, even though that technology was not known at the time.

December 6, 2019|Fourth Amendment, Katz v. United States, Kyllo v U.S., Riley v. California

Originalism, the Fourth Amendment, and New Technology

by Mike Rappaport|

Image: Ivan Smuk/Shutterstock.com.
To determine the content of the common law right in such unclear cases, one must put oneself in the position of a common law judge at the time.

June 5, 2018|Collins v. Virgnia, Exclusionary Rule, Fourth Amendment, Justice Clarence Thomas, Originalism, Qualified Immunity

The Original Meaning and The Exclusionary Rule

by Mike Rappaport|

The U.S. Supreme Court in March 2015 (Stock Photo World/Shutterstock.com).
Lawsuits against the state or the exclusionary rule itself might be the best path to reining in state officials who violate the Fourth Amendment.

December 7, 2017|Fourth Amendment, Originalism, Third Party Doctrine

The Original Meaning and the Carpenter Case: Establishing Joint Ownership of Customer Records

by Mike Rappaport|

Striking an agreement with your cell phone company could increase privacy protections for your records.

December 5, 2017|Carpenter Case, Fourth Amendment, Originalism, Third Party Doctrine

The Original Meaning and the Carpenter Case: Congress’s Protection of Customer Information

by Mike Rappaport|

In my last post, I discussed the Fourth Amendment, the third party doctrine, and the Carpenter case (which involved information secured from a cell phone company about a consumer’s cell phone location).  In that post, I discussed the third party doctrine generally and applied it to Carpenter as an illustration.  But Carpenter has an important feature, noted by other bloggers and commenters, that goes beyond the narrow question of the third party doctrine: Congress has passed a statutory provision that protects against the disclosure of information about cell phone customers.

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November 30, 2017|Carpenter v. United States, Fourth Amendment, U.S. v. Miller

The Original Meaning and the Carpenter Case: “Their Papers”

by Mike Rappaport|

The Carpenter v. United States case, which was argued before the Supreme Court earlier this week, may turn out to be one of the most important Fourth Amendment cases. 

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September 7, 2017|Fourth Amendment, James Madison, Originalism

The Legislative History of the Fourth Amendment: Unreasonable Searches and General Warrants

by Mike Rappaport|

The Fourth Amendments has two main clauses: a rights clause and a prohibition on certain types of warrants clause (the prohibition clause):

The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no warrants shall issue, but upon probable cause, supported by oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.

Significantly, the two clauses are separated by an “and.”  This “and” has led to an uncertainty about the relationship between the two clauses.

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September 5, 2017|Cuddihy, Fourth Amendment, Originalism, textualism

The Original Meaning of the Fourth Amendment: What Does “the Place to Be Searched” Mean?

by Mike Rappaport|

Lately, I have been exploring the original meaning of the Fourth Amendment, which I am finding to be a fascinating subject.  The text of the Fourth Amendment is filled with significant interpretive questions.

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August 3, 2017|Bob Natelson, Fourth Amendment, Gary Lawson, Geoffrey Miller, Language of Law, Laura Donohue, Michael Ramsey, Natural Born Citizens, Necessary and Proper Clause, original methods, Originalism

Originalist Scholarship Relying on the Language of the Law–Part II

by John O. McGinnis, Mike Rappaport|

In our last post, we provided some examples of recent scholarship that rely on the view, which we have defended, that the Constitution is written in the language of law. They are not consistent with the view that the Constitution is written in ordinary language. In this post we provide some other important examples.

Scholars have even shown the language that looks most ordinary is better understood as part of the language of the law.  The Fourth Amendment provides: “the right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.” The word “unreasonable” is sometimes used as an example of a vague word in ordinary language that renders the meaning of a constitutional provision indeterminate.   But Laura Donohue has argued that the word “unreasonable” should be instead read with the legal meaning of “against the reason of the common law.” As a result, the Fourth Amendment does not incorporate some free-floating reasonableness test, but a set of specific prohibitions of searches that violated the common law. 

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February 24, 2014|Fourth Amendment, Liberty, Privacy, Probable Cause

Predictive Policing and Probable Cause

by Josh Blackman|

The Verge has an insightful article on how the Chicago Police Department is using predictive policing as a means to identify individuals who are likely to be involved in a violent crime–they are placed on the so-called “heat list” and monitored closely.

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Book Reviews

A Mirror of the 20th-Century Congress

by Joseph Postell

Wright undermined the very basis of his local popularity—the decentralized nature of the House—by supporting reforms that gave power to the party leaders.

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The Graces of Flannery O'Connor

by Henry T. Edmondson III

O'Connor's correspondence is a goldmine of piercing insight and startling reflections on everything from literature to philosophy to raising peacocks.

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Liberty Classics

Rereading Politica in the Post-Liberal Moment

by Glenn A. Moots

Althusius offers a rich constitutionalism that empowers persons to thrive alongside one another in deliberate communities.

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James Fenimore Cooper and the American Experiment

by Melissa Matthes

In The American Democrat, James Fenimore Cooper defended democracy against both mob rule and majority tyranny.

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Podcasts

Stuck With Decadence

A discussion with Ross Douthat

Ross Douthat discusses with Richard Reinsch his new book The Decadent Society.

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Can the Postmodern Natural Law Remedy Our Failing Humanism?

A discussion with Graham McAleer

Graham McAleer discusses how postmodern natural law can help us think more coherently about human beings and our actions.

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Did the Civil Rights Constitution Distort American Politics?

A discussion with Christopher Caldwell

Christopher Caldwell discusses his new book, The Age of Entitlement.

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America, Land of Deformed Institutions

A discussion with Yuval Levin

Yuval Levin pinpoints that American alienation and anger emerges from our weak political, social, and religious institutions.

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About

Law & Liberty’s focus is on the classical liberal tradition of law and political thought and how it shapes a society of free and responsible persons. This site brings together serious debate, commentary, essays, book reviews, interviews, and educational material in a commitment to the first principles of law in a free society. Law & Liberty considers a range of foundational and contemporary legal issues, legal philosophy, and pedagogy.

The opinions expressed on Law & Liberty are solely those of the contributors to the site and do not reflect the opinions of Liberty Fund.
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