Final Version, "Katz as Originalism"

It’s a pleasure to announce that the latest edition of my article is now available. KatzOriginalism has been published in The Duke Law Journal.  The abstract is:

Originalist Justices, originalist scholars and others often attack Katz v. United States’ “reasonable expectations of privacy” test. These originalist scholars and Justices argue that the Katz test used to determine whether a Fourth Amendment search has been conducted should be eliminated because it is not based on the Constitution’s text. This is not a mere academic discussion. Due to the recent rise of originalists at the Supreme Court, there is serious danger that the reasonable expectation test for privacy will be upset and replaced with whatever originalist approach may produce.

The Article shows that Katz’s originalist objection is wrong. When properly understood, both textualism and originalism are compatible with the Katz test. A reasonable expectation of privacy is a framework that accurately follows the Constitution text while preserving its original meaning. This test doesn’t create a Constitution free for all, but preserves its original role against any technological threats. Contrary to popular belief, alternative proposals made by textualist and originalist critics are Katz disguised and less well-rooted in the original text and public meaning of Katz. A constitutionalist could want to reaffirm Katz’s position. However, this is only a question of form and not substance.

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