The Supreme Court has now heard oral arguments in Carpenter v. United States, a case that may determine some much-anticipated boundaries and explanation of the Fourth Amendment’s protection of cell phone data.
The newest Supreme Court Justice, Neil Gorsuch, is an originalist in his jurisprudential views of the Constitution, much like the late Antonin Scalia whom he succeeded. Gorsuch was active in his questions at oral argument in the Carpenter case. Gorsuch’s focus on the “property interest” at stake “seems to have surprised and concerned some observers,” writes fellow originalist, Professor Will Baude.
The Fourth Amendment comprehends a lot of scenarios in relatively few words, and is great intellectual candy for both legal scholars and more casual observers. Its lodestar is “the right of people to be secure” in four objects: persons, houses, papers, and effects. Nowhere does it mention a right of privacy, though that predominates most discussions of the Fourth Amendment these days.
Understanding the property interests of the Fourth Amendment, as Justice Gorsuch does, not only helps clarify why the Amendment naturally extends to a sense of privacy, but demonstrates the Amendment’s amazing importance in the constitutional fabric of our society, and why it is a key protection against a police state.
The Fourth Amendment’s genius lies in its competing objectives of keeping us and our property safe from bad people – which is a major reason why we have government in the first place – and protecting the right of security from unlawful intrusions by our own government. History taught the Founders that government could be extremely oppressive unless shackled and governed by a law over government itself. Hence, we have our Constitution and Bill of Rights to not only structure government, but govern and limit it by a fundamental and paramount law.
In the decade of the 1760s, lawsuits in both England and colonial America addressed government abuses of searching authority over businesses, homes, persons, papers, and people’s possessions. The principles articulated in that important decade tell us that while the Fourth Amendment expressly protects four objects, it also acts as a shield against government invasion on other liberties, whether expressly stated in the Bill of Rights, such as speech, religion, and ownership of arms, or other natural rights, such as our livelihoods and, yes, privacy.
Property interests relate back to what John Locke and particularly James Madison articulated as “every thing to which a man may attach a value and have a right; and which leaves to every one else the like advantage.” And, “a man is said to have a right to his property, he may be equally said to have a property in his rights.” Our property, in other words, is something we may share with or deny to others at our discretion. The government may take private property only under certain conditions, and usually only after a judicial determination.
Part of the progressive assault on the property interests of the Fourth Amendment came when Justice William Brennan wrote in 1967 “that the ‘great end, for which men entered into society … to secure their property’” can be dismissed as merely the “political thought of [Madison’s] time.”
Justice Gorsuch, though, understands why principles of property articulated in the 18th century relate to the cell phone data at issue in the Carpenter case. His questioning at oral argument hits the mark: “[S]ay a thief broke into T-Mobile, stole this information and sought to make economic value of it. Would you have a [property claim]?”
One may ask why Gorsuch would raise the issue of private theft of cell phone data held by a third party as context for the Fourth Amendment. In his 1787 essay, Anti-Federalist Brutus wrote:
“[R]ulers have the same propensities as other men; they are as likely to use the power with which they are vested for private purposes, and to the injury and oppression of those over whom they are placed, as individuals in a state of nature are to injure and oppress one another. It is therefore as proper that bounds should be set to their authority, as that government should have at first been instituted to restrain private injuries.”
Gorsuch brilliantly wraps this originalist principle of the need for legal restraint on government into the Fourth Amendment property interest analysis with his cutting question to the government’s lawyer: “[S]o the government can acknowledge a property right but then strip it of any Fourth Amendment protection. Is that the government's position?”
Justice Gorsuch’s display at oral argument of his knowledge of history and the vital role of the Fourth Amendment right of security at issue in the Carpenter case may be best summed up when he said to the government lawyer:
“[I]t seems like your whole argument boils down to if we get it from a third-party we're okay, regardless of property interest, regardless of anything else. But how does that fit with the original understanding of the Constitution and writs of assistance? You know, John Adams said one of the reasons for the [Revolutionary] war was the use by the government of third parties to obtain information forced them to help as their snitches and snoops. Why – why isn't this argument exactly what the framers were concerned about?”
John Adams was a young lawyer when he witnessed the 1761 oral arguments against the Writs of Assistance. His 1780 Massachusetts Constitution precursor may be worthy of labeling him the Father of the Fourth Amendment. To obtain papers or effects, the government needs a warrant “previously supported by oath or affirmation,” he wrote. The judicial warrant is the reasonable justification to invade the right of security. This protects the community against miscreants, yet protects us from miscreant government.
The Carpenter case may not be decided on the property interests articulated by Justice Gorsuch, but it is clear that the Supreme Court now has another powerful intellect to articulate those important principles.
Mark J. Fitzgibbons, Esq. is an attorney and co-author with Richard Viguerie of "The Law That Governs Government."