Noah Stein has posted The Times They Are A-Changin’: Selective Originalism in the Roberts Court’s Fourth Amendment Jurisprudence (29 University of Pennsylvania Journal of Constitutional Law __ (2026)) on SSRN. Here is the abstract:
This Article considers the selective use of originalism in the modern United States Supreme Court’s analysis of Fourth Amendment cases. It revisits the history of the Fourth Amendment before contending with the Court’s analysis in both physical trespass cases, where historical analysis is the doctrinal focus, and in modern surveillance cases, where history is only nominally considered. In response to this selectiveness, the Article proposes a transparency-centered framework of three questions any court invoking history should answer: When is history relevant? What historical evidence is sufficient? And why is history being applied in this particular way. The stakes of selective originalism are immediate; the Court is soon set to hear arguments in Chatrie v. United States, where the constitutionality of geofence warrants is at stake. Whether geofence searches constitute Fourth Amendment violations cannot be addressed without confronting the question at the heart of this Article: what does it mean to use history as law?
Lawrence Solum