Justice Scalia's Fourth Amendment: Text, Context, Clarity, and Occasional Faint-Hearted Originalism

Virginia Journal of Criminal Law, Forthcoming

Washington & Lee Legal Studies Paper No. 2014-16

86 Pages Posted: 1 Jul 2014 Last revised: 14 Aug 2015

Timothy C. MacDonnell

Washington and Lee University - School of Law

Date Written: June 30, 2014

Abstract

Since joining the United States Supreme Court in 1986, Justice Scalia has been a prominent voice on the Fourth Amendment, having written twenty majority opinions, twelve concurrences, and six dissents on the topic. Under his pen, the Court has altered its test for determining when the Fourth Amendment should apply; provided a vision to address technology’s encroachment on privacy; 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 an 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 his originalist/textualist commitments, particularly in the areas of the special needs doctrine and qualified immunity. This 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 interpretation of the Fourth Amendment in favor of law enforcement interests.

Keywords: Scalia, Fourth Amendment, originalism.

JEL Classification: K10, K40

Suggested Citation

MacDonnell, Timothy C., Justice Scalia's Fourth Amendment: Text, Context, Clarity, and Occasional Faint-Hearted Originalism (June 30, 2014). Virginia Journal of Criminal Law, Forthcoming; Washington & Lee Legal Studies Paper No. 2014-16. Available at SSRN: https://ssrn.com/abstract=2460832

Timothy C. MacDonnell (Contact Author)

Washington and Lee University - School of Law ( email )

Lexington, VA 24450
United States

Paper statistics

Downloads
27
Abstract Views
230