John Wrench (Institute for Justice) has posted The Original Meaning of “Searches” on SSRN. Here is the abstract:
Fourth Amendment doctrine currently treats “searches” not as an ordinary word, but as a term of art whose content is derived from judgments about privacy, property, and reasonableness. Which of those considerations are relevant in any given case and why, how they relate to each other, and their constitutional significance is notoriously difficult to articulate. The result is a search analysis that is conceptually blurred but innately high stakes, as the finding that a “search” occurred is a prerequisite for activating the Amendment’s protections. The pressure on search doctrine has only increased as precedents built on that term-of-art framework appear ill-equipped to govern novel investigative techniques and the constitutional interests they collide with.
Against that backdrop, a crowded field of recent proposals—often invoking original meaning—is divided between defending the status quo, recalibrating “search” as a new term of art, and appeals to the word’s ordinary meaning in service of broader doctrinal overhauls. The last of these is underdeveloped, as accounts frequently rely on limited evidence or resort to common sense intuitions about the meaning of “search.” This Article puts flesh on the bones of the ordinary meaning theory. It provides a historical reconstruction of “search” and establishes that the word entered the Fourth Amendment with its broad, ordinary meaning: an act aimed at obtaining information. That foundation shows why originalist defenses of the Katz and Jones tests, and any other proposals that rely on a technical or doctrinal retooling of the word, conflict with the word’s original meaning and obscure the relevant constitutional questions.
Highly recommended.