The history of the Supreme Court’s treatment of such questions lacks a perfectly clear pattern, but we can identify two distinct strategies, always competing for the Court’s attention. One strategy is focused on what the framers or founders would have done—the strategy of one-step originalism. The second strategy aims at finding a current reading of the original Constitution that preserves its original meaning in the present context—a strategy that I call translation.

Both strategies are present in the Olmstead wiretapping case. When the government tapped the phones of the defendants without any warrant, the Court had to decide whether the use of this kind of evidence was permissible or consistent with the principles of the Fourth Amendment. The defendants said: the government must get a warrant to tap phones. The government said: the Fourth Amendment simply does not apply.

The government’s argument was quite simple. The amendment presupposed that the government would be trespassing to search, and it was regulating the conditions under which officers could trespass. But because wiretapping is an invasion of privacy without a trespass, the government is able to tap the defendants’ phones without ever entering their property; the amendment therefore does not apply. It simply does not reach to protect invasions that are invasions without trespass.

The Supreme Court agreed. In an opinion written by Chief Justice William H. (and former President) Taft, the Court followed the government.

The amendment does not forbid what was done here. There was no searching. There was no seizure. The evidence was secured by the use of the sense of hearing and that only. . . . The language of the amendment cannot be extended and expanded to include telephone wires, reaching to the whole world from the defendant’s house or office.¹

This conclusion was received with some surprise, and also with shock. Already much of life had moved to the wires. People were beginning to understand what it meant to have intimate contact “online”; they counted on the telephone system to protect their intimate secrets. Indeed, telephone companies, having strongly fought the authority that the government claimed, pledged not to assist the government except as required by law.² This resistance notwithstanding, the Court concluded that the Constitution did not interfere with invasions of this sort. It would not have done so when the Constitution was written; it did not do so at the time when the case was decided.

But the dissent written by Justice Brandeis (there was also a dissent by Justices Holmes, Stone, and Butler) had a different view. Like Taft, the focus was fidelity. But his fidelity was quite differently conceived.

Brandeis acknowledged that the Fourth Amendment, as originally written, applied only to trespass.³ But it did so, he argued, because when it was written trespass was the technology for invading privacy. That was the framers’ presupposition, but that presupposition had now changed. Given this change, Brandeis argued, it was the Court’s responsibility to read the amendment in a way that preserved its meaning, changed circumstances notwithstanding. The aim must be to translate the original protections into a context in which the technology for invading privacy had changed.⁴ This would be done, Brandeis argued, by applying the Fourth Amendment’s protection to invasions that were not themselves trespasses.

These two opinions mark two different modes of constitutional interpretation. Taft finds fidelity by simply repeating what the framers did; Brandeis finds fidelity by finding the current equivalent to what the framers did. If we followed Taft, Brandeis argued, we would defeat the protections for privacy that the framers originally set; if we followed Brandeis, Taft implied, we would be adding to the Constitution something that the framers had not written.

Partisans on both sides claimed that the opinion of the other would have “changed” the meaning of the Constitution. But whose opinion, the Court’s or Justice Brandeis’s, would really “change” the meaning of the Fourth Amendment?

To answer this question, you would first have to ask: Change relative to what? What is the baseline against which this change is a change? Certainly Brandeis would have agreed that in 1791, just after the amendment was passed, any finding by the Court that the amendment reached beyond trespass would have been improper. But when something presupposed by the original amendment has changed, is it clear that the Court’s proper response is to act as if nothing has changed at all?

Footnotes

¹ Olmstead v United States, 277 US 438, 470 (1928), 464–65. Edit Delete

² Ibid., brief for the Pacific Telephone & Telegraph Company (nos. 493, 532, 533). Edit Delete

³ Ibid., 473 (Justice Louis Brandeis dissenting). Edit Delete

⁴ “Translation” is not Brandeis’s term, though it is a term of the courts. The idea is best captured by Justice Robert H. Jackson in West Virginia State Board of Education v Barnette, 319 US 624, 639–40 (1943): “Nor does our duty to apply the Bill of Rights to assertions of official authority depend upon our possession of marked competence in the field where the invasion of rights occurs. True, the task of translating the majestic generalities of the Bill of Rights, conceived as part of the pattern of liberal government in the eighteenth century, into concrete restraints on officials dealing with the problems of the twentieth century, is one to disturb self-confidence. These principles grew in soil which also produced a philosophy that the individual was the center of society, that his liberty was attainable through mere absence of governmental restraints, and that government should be entrusted with few controls and only the mildest supervision over men’s affairs. We must transplant these rights to a soil in which the laissez-faire concept or principle of non-interference has withered at least as to economic affairs, and social advancements are increasingly sought through closer integration of society and through expanded and strengthened governmental controls. These changed conditions often deprive precedents of reliability and cast us more than we would choose upon our own judgment. But we act in these matters not by authority of our competence but by force of our commissions. We cannot, because of modest estimates of our competence in such specialties as public education, withhold the judgment that history authenticates as the function of this Court when liberty is infringed.” Edit Delete