Professor Orin Kerr responds to an article by former Virginia Attorney General Ken Cuccinelli and me over atWashington Examiner about a 21st Century Fourth Amendment introduced in Virginia (“A much-needed facelift for the Fourth Amendment”). Professor Kerr’s critique of the amendment is at The Washington Post (“An ‘update’ to the Virginia constitution that the General Assembly should pass over”).
Professor Kerr is a Fourth Amendment specialist. He has reputation evaluating the complexity of the Fourth Amendment that protects our fundamental rights to security against “unreasonable search and seizure.”
Complexity about fundamental rights is great for some law professors, but is lousy for Americans.
Professor Kerr begins with an opinion that he contradicts within his own opinion piece, which is that the proposed amendment is a “truly radical set of ideas.”
The proposed 21st Century Fourth Amendment incorporates much of James Madison’s original language, is entirely consistent with over 225 years of case law, even common law before that, and corrects two mistakes of judicial interpretation.
Professor Kerr (“PK”) immediately contradicts himself, writing, “C&F (Cuccinelli and Fitzgibbons) don’t explain why the proposal adds 'businesses.' The addition is redundant, however, because the federal Fourth Amendment already protects businesses.”
If the federal Fourth Amendment already protects businesses, which it does, then the 21st Century version certainly is not “radical” in this respect. Virginia sometimes incorporates good federal interpretation into its law, and as Attorney General Cuccinelli and I explain, the 21st Century version is designed to add clarity for citizens, law enforcement, lawyers and judges. By the way, not all lawyers or judges know the Fourth Amendment construed in thousands of pages of case law as well as the professor.
A Constitution is the law of the people over government, and should be clear for their benefit.
PK then does not like the addition of “lands” to this 21st Century Virginia version. He writes, “Whoa. There’s a big difference between adding protection for a person’s whole property –in the argot of the Fourth Amendment, adding protection for “open fields” — and trying to protect against drones. If the constitutional protection eliminates the curtilage/open fields distinction, it would mean that officers couldn’t physically walk on to a person’s open fields, not near any home, without a warrant.”
Nobody, including law enforcement, should trespass by walking on people’s fields without their consent or a warrant. From Boyd v. United States, 116 U.S. 616, 627 (1886), citing Lord Camden from the seminal 1765 English search and seizure case Entick v. Carrington, “No man can set his foot upon my ground without my license, but he is liable to an action, though the damage be nothing, which is proved by every declaration in trespass where the defendant is called upon to answer for bruising the grass and even treading upon the soil.”
PK also objects to how this provision would apply to drones snooping around: “Imagine a drone is used from public airspace, such as directly above a person’s property, or over a public street near that person’s property. Is that an invasion of a person’s ‘lands’?”
First of all, the proposed amendment, like the original, has the “reasonableness” standard, which would not be construed such that city street surveillance is trespass.
I also invite Professor Kerr to take a weekend drive through Virginia, even to James Madison’s or John Marshall’s homes, to see our beautiful farms, pastures, and mountains. He can even stay at one of our charming inns. He will see firsthand the ease with which this provision would be construed to protect our farms and fields.
PK’s next contradiction is about how the Virginia version would incorporate digital data. He writes, “This section may be redundant, too, because the federal courts have interpreted digital communications as also being protected fully by the Fourth Amendment.”
There goes that “radical” label out the window again, but more so, there is ambiguity about how far the case he cites will go. Again, the amendment seeks clarity for the People’s law over government, not fodder for law review articles.
Next, about the amendment’s clarity of the term “probable cause,” he writes, “I find these two sentences puzzling. For the first sentence, are they saying that every search or seizure must be based on probable cause? What about stops and frisks? What about consent searches?”
When police stop us without some level of reasonable cause, that’s an element of a police state.
I find some common ground with Professor Kerr, who writes, ”I also disagree with the outcome in Heien (where a mistake of law was found to be “reasonable” for police to stop automobiles).”
But then he gets “weird” by writing, “But this second sentence is a very weird way to overturn it; why not just say that mistakes of law cannot be the basis of suspicion?” The term “suspicion” is not found in the Fourth Amendment. To add it, as he suggests, would be radical, unlike the proposed amendment that is based in sound Fourth Amendment jurisprudence, history and principles.
As to the requirement that administrative subpoenas be signed by a neutral judge, that is already based in law that bureaucrats ignore. PK writes, “It applies inclusively to 'other demands,' which would seem to include grand jury subpoenas, trial subpoenas, and discovery subpoenas.”
Hale v. Henkel, 201 U.S. 43 (1906) explains why administrative subpoenas require this process, and explains why grand jury and discovery subpoenas do not. The latter are not part of the “search and seizure” pre-due process part of law enforcement.
He adds, “Second, the subpoena power is a way to get to probable cause. If you require probable cause for a subpoena, the result would render many types of criminal laws unenforceable.”
Whoa! He’s got that backwards. Probable cause is the way to get to the subpoena power. Professor Kerr puts the government’s horse before the people’s cart.
He then questions the provisions for bureaucrats, writing, “If it’s true that state administrative agencies are abusing their statutory powers, then I would think the response should be to cut back on their statutory powers.”
Well, Professor, that ain’t happening. Government gets more power each day, often via unconstitutional ways.
Also, that observation seems to have missed the regular and frequent abuse of the administrative subpoena process inconsistent with Camara v. Municipal Court, 387 U.S. 523 (1967).
Here’s an example. An assistant state attorney general misconstrued a substantive interpretation of a statute, and I told her so. In response, she unilaterally issued her own subpoena, with no approval by a judge. I wrote back explaining that her subpoena statute required the subpoena to state its probable cause. She replied by citing the statute itself as her probable cause. That wouldn’t have happened if she followed the separation of powers.
I wrote back, copied her boss, suggesting she watch a few episodes of the TV show “Law & Order” to learn the meaning of “probable cause,” and how her ignorance jeopardized the citizens of her state. I never heard back.
He writes, “I think overturning the third-party doctrine is a bad idea.” Opinion noted.
We find common ground again where he writes, “I tend to think that eliminating qualified immunity may be a good idea.” But then he takes a wrong turn, writing, “With that said, no one should think that such remedies are about ‘bureaucrats’ or ‘the administrative state.’”
I'll have more to write just about that, and explain precisely why this applies to bureaucrats. That alone will be Part II to this reply.
I have great admiration for Professor Kerr. Even when I find him to be a little too pro-police state and missing how administrative subpoenas are abused, he has great intellect. His Washington Post article about the 21stCentury Fourth Amendment is, however, misleading and internally contradictory.
The article by General Cuccinelli and me was limited to Opinion/Editorial page word limits, and there will be more detailed explanations of the amendment. But I give Professor Kerr’s opinion article a D-.