Justice Scalia's Fourth Amendment Text, Context, Clarity, and Occasional Faint-Hearted Originalism
Timothy C. MacDonnell
Washington and Lee University - School of Law
June 30, 2014
Virginia Journal of Criminal Law, Forthcoming
Washington & Lee Legal Studies Paper No. 2014-16
Since joining the United States Supreme Court in 1986, Justice Scalia has been one of the most prominent voices on the Fourth Amendment, having written twenty majority opinions, twelve concurrences and eight dissents on the topic. Justice Scalia’s Fourth Amendment opinions have had a significant effect on the Court’s jurisprudence relative to the Fourth Amendment. Under his pen, the Court has altered its test for determining when the Fourth Amendment should apply; provided a vision for how technology’s encroachment on privacy should be addressed; and articulated the standard for determining whether government officials are entitled to qualified immunity in civil suits involving alleged Fourth Amendment violations. In most of Justice Scalia’s opinions, he has championed the originalist/textualist theory of constitutional interpretation. Based on that theory, he has advocated that the text and context of the Fourth Amendment should govern how the Court interprets most questions of search and seizure law. His Fourth Amendment opinions have also included an emphasis on clear, bright-line rules that can be applied broadly to Fourth Amendment questions. However, there are Fourth Amendment opinions in which Justice Scalia has strayed from these commitments; particularly in the areas of the special needs doctrine and qualified immunity. The article asserts that Justice Scalia’s non-originalist approach in these spheres threatens the cohesiveness of his Fourth Amendment jurisprudence, and could, if not corrected, unbalance the Fourth Amendment in favor of law enforcement interests.
Number of Pages in PDF File: 66
Keywords: Scalia, Fourth Amendment, originalism.
JEL Classification: K10, K40Accepted Paper Series
Date posted: July 1, 2014
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