Orin S. Kerr | 11.10.2024 4:30 PM

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........

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