Thursday, November 22, 2018
In 1967, in Katz v. United States, the Supreme Court adopted a privacy-based framework for determining whether government conduct constitutes a Fourth Amendment search. Under that standard, a search occurs when the government infringes on an expectation of privacy that “society is prepared to recognize as ‘reasonable.’” Although the Court qualified its commitment to Katz in 2012 by asserting that an older, property-based approach survived Katz and remains the first-line test for identifying Fourth Amendment searches, most of the Court today is committed to preserving a role for the Katz standard. Yet most of the justices have also recognized problems with Katz, including its indeterminacy and potential for doctrinal circularity and the superior capacity of legislatures to address Katz’s seemingly ahistorical directive. In this Article, I offer a traditionalist alternative to the mainstream conception of Katz as ashistorical. I draw on classically conservative, or Burkean, constitutional theory, which rejects both rigid forms of originalism and ahistorical living constitutionalism. Such a model requires reference to history and tradition as a basis for identifying society’s core commitments, but it allows for incremental reform as tradition evolves over time. This rubric is consistent with the way the Court has sometimes applied Katz, and it addresses the primary flaws commentators have associated with the Katz framework. The Court should apply this traditionalist approach to Katz in a more consistent, self-conscious way to achieve more principled outcomes in the future.