I recently posted about the open fields doctrine of Fourth Amendment law, the rule that it is not a “search” under the Fourth Amendment for the government to trespass on to your open field. In my post, I argued that the contrary rule argued by some advocates, that passage onto a person’s land should be a search, conflicts with the text of the Fourth Amendment. The constitutional language specifically protects “persons, houses, papers, and effects,” and it’s hard to argue, as a matter of text, that an open field is one of those four enumerated things. Open land is not a person, a house, a paper, or an effect.
Joshua Windham of the Institute for Justice has written in with a response disagreeing with me. In the interests of furthering a debate on this topic, I have reprinted his response in full below. And after that, also below, I have replied and explained why I think Mr. Windham is incorrect. Who has the better argument? You decide.
First up, here’s Mr. Windham’s response:
Professor Orin Kerr recently defended the “open fields” doctrine on textualist grounds. That doctrine holds that the Fourth Amendment’s ban on “unreasonable searches” does not extend to land beyond the curtilage of a home. The original—and current—basis for the doctrine is that land “is not one of those protected areas enumerated in the [text].” It seems Professor Kerr agrees: “[I]f you take text seriously,” he writes, “the thing searched has to be a person, house, paper, or effect” to enjoy Fourth Amendment protection. And, because land is not on that list, “you don’t get protection on the land itself.”
I disagree. And not just as a “policy” matter, as Professor Kerr’s article suggests. As I see it, the open fields doctrine rests on an acontextual reading of the phrase “persons, houses, papers, and effects.” For reference, start with what the Fourth Amendment actually says:”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.”
Hold that text in your mind. We’ll come back to it. For now, the point is simply that the Fourth Amendment contains 54 words—not merely the five words on which Professor Kerr focuses. So, what do I mean when I say that his reading is “acontextual”?
I mean that it fails to use context clues to understand what the text means—to grasp, not only what the text says (in semantic isolation), but how we’re meant to understand and use it. Here’s a simple example. If you walk into an elementary school classroom, you’ll likely see a list of rules posted on the wall. And one rule you’ll surely see is “keep your hands to yourself.” How should we read the rule? Are handshakes and hugs forbidden, because that would mean touching others? Can students kick and throw things at each other, because the rule refers only to hands? No. These aren’t sensible readings.
The better reading is that the rule does not exhaust, but evinces, a broader principle: Do not physically disrupt your classmates. We know that because the rule was adopted in a context: a classroom, where learning is the goal and peace is a precondition, and where it would be impossible to list out every kind of physical disruption that might break the peace. The rule doesn’t specify hands because they’re uniquely disruptive. It lists hands because punching is a paradigm case of the problem the rule seeks to solve. Kicking isn’t listed, but if we read the rule in context, it’s forbidden. Kids understand this (at least my wife, a teacher, tells me they do).
The bill of rights works the same way. Take the First Amendment. At face value, it bars only “Congress” from “abridging the freedom of speech, or of the press.” But the Court has interpreted this text to bar all officials (not just Congress) from censoring most forms of expression (not just when spoken or printed). And that makes good sense. As Justice Scalia explained: “In textual interpretation, context is everything, and the context of the Constitution tells us not to expect nit-picking detail”—no less for the First Amendment’s express references to “speech and press, the two most common forms of communication, [which] stand as a sort of synecdoche [or representation] for the whole. That is not strict construction, but it is reasonable construction.” Antonin Scalia, A Matter of Interpretation: Federal Courts and the Law 37–38 (1997) (citing McCulloch v. Maryland, 17 U.S. (4 Wheat) 316, 407 (1819) (Marshall, C.J.)).
It’s hard to grasp why we should read the Fourth Amendment’s text any differently. But don’t just take mine or Justice Scalia’s word for it. The basic issue here is that we have to choose whether to treat the Fourth Amendment’s reference to “persons, houses, papers, and effects” as exhaustive or illustrative. If you’re a strict textualist still on the fence, look at the Ninth Amendment: “The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people.” That’s an explicit rule of construction, and it makes the same point I’ve been making here: The mere fact that the Fourth Amendment lists “persons, houses, papers, and effects” does not justify the open fields doctrine.
Of course, none of this proves that land deserves protection. But it opens the door to that conversation. While I don’t have the space to give my complete argument here (for that, see my forthcoming law review article, The Open Fields Doctrine Is Wrong), I want to flag three context clues that support the inference that the Fourth Amendment protects land. Then, before wrapping up, I’d like to briefly touch on something Professor Kerr doesn’t discuss: The Supreme Court’s alternative justification for the open fields doctrine under the Katz privacy framework.
My first context clue is the legal status of private land at the founding. English common law held that “[e]very unwarrantable entry on another’s soil the law entitles a trespass by breaking his close.” Seminal search cases like Entick v. Carrington, though they typically involved homes, agreed that “bruising the grass and . . . treading upon the soil” violated the common law since “[n]o man may set his foot upon my ground without my license.” And early Americans—who valued property rights and cultivation—embraced trespass protections with statutes that specified how to exclude intruders. See Buford v. Houtz, 133 U.S. 320, 328 (1890) (noting that “[n]early all the states in the early days had what was called the ‘Fence Law'”). At the founding, private land was legally secure from trespass.
My second context clue is the kind of power the Fourth Amendment was meant to curb. Founding-era officials lacked freestanding search power. (See Thomas Davies’s work.) If they wanted to enter property without risking trespass liability, then generally speaking, they needed a specific warrant issued by a neutral judge. (See Laura Donohue’s work.) The general warrants and writs of assistance that prompted the Fourth Amendment did so precisely because they granted government officials a power they previously lacked: the power to invade property at their own discretion.
My third context clue is the Fourth Amendment’s whole text. Not the five isolated words on which the open fields doctrine rests, but the 49 other words too. The first clause never says that only persons, houses, papers, and effects deserve protection. It says we have a right “to be secure in” those items “against unreasonable searches.” A right to be secure entails freedom from threats or fear. (See Luke Milligan’s work.) And it’s not hard to see how officials roaming and placing cameras on your land might undermine your security in your person, house, papers, or effects. The second clause helps too. Because founding-era officers needed a warrant to invade property, setting the standard for valid warrants effectively set the bar for valid searches. So it’s telling that, in a clause meant to do much of the Fourth Amendment’s heavy lifting, we find a rule that warrants must “describ[e] the place to be searched.” Isn’t land a “place”?
Taking these context clues together—the fact that land was secure from trespass, that the founding generation abhorred discretionary searches, and that the Fourth Amendment’s whole text sweeps more broadly than “persons, houses, papers, and effects”—I think the most reasonable inference to draw from the text is that land deserves protection. And I don’t think the first clause’s list undercuts that inference, either. Far from listing those items to the exclusion of everything else, it seems more plausible that the framers were merely stopping the discretionary search problem before it spread. The framers named “persons, houses, papers, and effects” because they were most recently under threat. It hardly follows that unreasonable searches of private land are constitutional. Just like it hardly follows that a rule against classroom punching allows classroom kicking.
That, in a nutshell, is why I think a more contextual reading of the Fourth Amendment’s text would reject the open fields doctrine. But it’s worth noting that the Supreme Court has given a second justification for the doctrine. The Fourth Amendment, at least under current precedent, protects reasonable expectations of privacy even when they are not listed in the text. The Court has held that people—categorically—”may not legitimately demand privacy” on their own land. Without getting too far into the Court’s reasoning (since Professor Kerr does not rely on it), I want to make clear that I find it preposterous.
The Katz privacy test is notoriously squishy. But, by any metric, there are at least some scenarios where it’s plainly reasonable to expect privacy on your own land. If we look at positive law, every state has a trespass statute—a statute that (if we indulge the fiction) reflects social expectations and says how to exclude people from your land and trigger trespass liability. If we look at personal use, people use their land for every private end they seek at home: private conversations, quiet reflection, family recreation, making art, making love, and on and on. If we look at empirical data, a 2011 study found that 66.5% of respondents believed that posting “no trespassing” signs on their land was enough to create a reasonable expectation of privacy. The point is, even if some land—like land left open to the public—doesn’t deserve privacy, the Supreme Court was wrong to hold that all land beyond the curtilage fails the Katz test.
The original article to which Professor Kerr was responding urged the Supreme Court to overrule the open fields doctrine. For all the reasons above, I agree that it should. But let me stress: My interest in this issue is not merely academic. I litigate this issue all over the country. It affects millions of landowners. Earlier this year, my public-interest law firm, the Institute for Justice, published a study that found the open fields doctrine exposes at least 96% of all private land in the United States—about 1.2 billion acres—to unfettered intrusions. With deep respect for Professor Kerr, I don’t believe the Fourth Amendment allows the government to wield that kind of power on so vast and terrifying a scale. 100 years of the open fields doctrine is enough.
I certainly appreciate the engagement, and I thank Mr. Windham very much for writing in. With equal respect, though, I disagree with his view. I think there are two major problems with his position.
The first problem is that I don’t think there’s anything particularly textualist about it. When Mr. Windham asserts a difference between an acontextual reading and a contextual reading, I think what he’s really doing is comparing a textual reading and a purpose-based reading. The relevant “context” he invokes is really just the highest level of generality of his claimed purpose of the Fourth Amendment. Thus, instead of focusing on the actual language of the Fourth Amendment, he looks to “the broader principle” of the Amendment and “the kind of power the Fourth Amendment was meant to curb.” It seems to me that his argument is really about the purpose of the Fourth Amendment, a purpose that he suggests is implied broadly by the text viewed holistically. On this view, the actual words are merely examples of the broader kind of problem that the provision should be interpreted to address.
That’s certainly a legitimate argument, to be clear. But I don’t think it’s a textual argument. Rather, it strikes me as a move I have previously called “the Level of Generality game.” Here’s how I described it back in 2015:
Most students of constitutional law will be familiar with the Level of Generality Game, as it’s a common way to argue for counterintuitive outcomes. The basic idea is that any legal rule can be understood as a specific application of a set of broad principles. If you need to argue that a particular practice is unconstitutional, but the text and/or history are against you, the standard move is to raise the level of generality. You say that the text is really a representation of one of the relevant principles, and you then pick a principle at whatever level of abstraction is needed to encompass the position you are advocating. If the text and/or history are really against you, you might need to raise the level of generality a lot, so that you get a super-vague principle like “don’t be unfair” or “do good things.” But when you play the Level of Generality Game, you can usually get there somehow. If you can raise the level of generality high enough, you can often argue that any text stands for any position you like.
My apologies that I expressed the idea rather dismissively above. I wouldn’t have used that tone in this context if I were making the point for the first time here. But I think it’s fair to say that this is the basic structure of Mr. Windham’s argument. Of course, some will argue that the Level-of-Generality strategy is a perfectly fair move to play, and that the Supreme Court sometimes does play it. And indeed, it does! But it doesn’t strike me as a textualist argument. Rather, it’s the classic move to get around inconvenient text.
The second problem with Mr. Windham’s argument runs along more originalist lines. In his telling, you can interpret “persons, houses, papers, and effects” as merely illustrative examples of protected things, rather than a complete list of the covered things, because those were the things to be protected that were on the drafters’ minds. In Mr. Windham’s telling, “the framers named ‘persons, houses, papers, and effects’ because they were most recently under threat.” I take the suggestion to be that, if the Fourth Amendment’s drafters had explicitly considered the possibility of writing the Fourth Amendment to cover land, they likely would have. On this view, we should interpret the Fourth Amendment in terms of what we think the framers would have said if they had thought about the question, rather than the particular words that they wrote.
Putting aside that this sort of speculation does not seem textualist, either, this specific argument runs into a problem. The drafters of the Fourth Amendment actually did consider a broader version of the text that would have covered open fields. And they rejected it.
Here’s the history, as I understand it. In 1789, James Madison introduced what would become the Fourth Amendment. Madison’s initial proposed text was as follows:
The rights to be secured in their persons, their houses, their papers, and their other property, from all unreasonable searches and seizures, shall not be violated by warrants issued without probable cause, supported by oath or affirmation, or not particularly describing the places to be searched, or the persons or things to be seized.
Notice what was protected in Madison’s original draft. Madison’s language protected their persons, their houses, their papers, and their other property. “Their other property” is a really broad phrase. It would presumably have included everything a person owned, including their open land.
The Committee in charge of considering Madison’s draft changed the language, however, from “other property” to “effects.” Here’s my discussion of that change from a recent article:
The Committee of Eleven, made up of representatives of each state, slightly altered the language. Unfortunately, no explanations exist for why the changes were made. But three changes stand out. First, and most significantly, the phrase “other property” was replaced with “effects.” That is, the new language offered protection to the people in their persons, houses, papers, and “effects” instead of in their persons, houses, papers, and “their other property.” Dictionaries of the era defined “effects” as “personal property, and particularly . . . goods or moveables.”
Critically, “effects” were property that excluded real property—that is, it excluded land. In other words, the drafters took language that would have included open fields and replaced it with language that excluded open fields. We don’t know why, and I personally don’t think it matters why. But to the extent an argument hinges on what the drafters might have had in mind, it doesn’t seem very faithful to that to adopt an interpretation that the drafters rejected.
One final thought. Mr. Windham invokes Justice Scalia for the idea that the language “persons, houses, papers, and effects” should be interpreted to include open fields. It’s worth noting, though, that Justice Scalia was on my side of this debate, not Mr. Windham’s. Here’s what Justice Scalia wrote about the open fields doctrine in United States v. Jones:
Quite simply, an open field, unlike the curtilage of a home, see United States v. Dunn, 480 U. S. 294, 300 (1987), is not one of those protected areas enumerated in the Fourth Amendment. Oliver, supra, at 176–177. See also Hester v. United States, 265 U. S. 57, 59 (1924). The Government’s physical intrusion on such an area—unlike its intrusion on the “effect” at issue here—is of no Fourth Amendment significance.
Justice Scalia had it right, I think.
