Katz, Carpenter, and Classical Conservatism

61 Pages Posted: 13 Nov 2018 Last revised: 4 Mar 2019

See all articles by Nicholas Alden Kahn-Fogel

Nicholas Alden Kahn-Fogel

University of Arkansas at Little Rock - William H. Bowen School of Law

Date Written: November 6, 2018

Abstract

In 1967, in Katz v. United States, the Supreme Court adopted a privacy-based framework for determining whether government conduct constitutes a Fourth Amendment search. Under that standard, a search occurs when the government infringes on an expectation of privacy that “society is prepared to recognize as ‘reasonable.’” Although the Court qualified its commitment to Katz in 2012 by asserting that an older, property-based approach survived Katz and remains the first-line test for identifying Fourth Amendment searches, most of the Court today is committed to preserving a role for the Katz standard. Yet most of the justices have also recognized problems with Katz, including its indeterminacy and potential for doctrinal circularity and the superior capacity of legislatures to address Katz’s seemingly ahistorical directive. In this Article, I offer a traditionalist alternative to the mainstream conception of Katz as ahistorical. I draw on classically conservative, or Burkean, constitutional theory, which rejects both rigid forms of originalism and ahistorical living constitutionalism. Such a model requires reference to history and tradition as a basis for identifying society’s core commitments, but it allows for incremental reform as tradition evolves over time. This rubric is consistent with the way the Court has sometimes applied Katz, and it addresses the primary flaws commentators have associated with the Katz framework. The Court should apply this traditionalist approach to Katz in a more consistent, self-conscious way to achieve more principled outcomes in the future.

Keywords: Fourth Amendment, Criminal Procedure, Constitutional Law

Suggested Citation

Kahn-Fogel, Nicholas Alden, Katz, Carpenter, and Classical Conservatism (November 6, 2018). Cornell Journal of Law and Public Policy, Forthcoming. Available at SSRN: https://ssrn.com/abstract=3279871 or http://dx.doi.org/10.2139/ssrn.3279871

Nicholas Alden Kahn-Fogel (Contact Author)

University of Arkansas at Little Rock - William H. Bowen School of Law ( email )

1201 McMath Street
Little Rock, AR 72202
United States

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