(Mark Fitzgibbons, American Thinker) – Digital-age privacy advocates should be thrilled with President Trump’s nomination of Judge Neil Gorsuch to the Supreme Court precisely because he is a superb originalist. Gorsuch won’t disappoint law-and-order types, either. Unlike ideologues who focus on judicial outcomes, Gorsuch’s application of originalism will satisfy the needs of law, order, and liberty.
Originalism, which is treating the Constitution as the Founders wrote and meant it, is an advantage for liberty and privacy in the digital age, as remarkable as that may sound. The Founders, of course, knew nothing of computers and emails. They did, however, establish the Fourth Amendment protecting the right of security in our “papers and effects” in addition to our “persons and houses.” Warrants may be issued only after presentation of probable cause under oath and affirmation. It was clearly understood at the time of the Founding that warrants could be issued only by neutral judicial officers, not police or other government agents. Sir Matthew Hale, the great seventeenth-century English jurist who influenced the Founders’ thoughts on law, order, and liberty in his 1736 posthumous publication, Historia Placitorum Coronae, called warrants “judicial acts.”
The 1780 Massachusetts precursor to the Fourth Amendment written by John Adams was the first to use the term “unreasonable” to describe search and seizure. A search pursuant to a warrant without probable cause presented in advance under oath and affirmation directing a searching agent to carry out his duty was “unreasonable” under Adams’s version. This protocol relying on a separation of powers in advance of a search reflected the experience and practice of the time. Even the general warrants known as the Writs of Assistance, which helped foment the Revolutionary War, were issued by judges.
Nowhere does the Fourth Amendment mention privacy. The Bill of Rights protect various liberties in isolation, but the Founders understood how our liberties are interwoven – just as, for example, the Second Amendment protecting an isolated right in itself aids in protecting the security of our lives and property. Privacy, like other natural rights understood by the Founders, is shielded by the Fourth Amendment’s protection of private property and our persons. Protection of privacy, therefore, is a derivative of the Fourth Amendment’s protection of private property. In fact, the Fourth Amendment was written in large part because of violations of freedom of speech and publication, religious rights, and people’s livelihoods. The Fourth Amendment is an essential bulwark in the protection of the constitutional fabric of liberty.
The separation of powers is also essential to protecting liberty, as James Madison told us. This is why warrants were always supposed to be issued by detached judicial officials, and never by police or other government officials or agencies responsible for conducting the searches.
An August 2016 opinion in United States v. Ackerman demonstrates Judge Gorsuch’s grasp of how the Fourth Amendment is best understood by viewing it from an originalist perspective. Ackerman’s AOL account screened and indicated that he was sending child pornography. Pursuant to federal law, AOL reported this to the National Center for Missing and Exploited Children (NCMEC). Without a judge-issued warrant, NCMEC opened Ackerman’s emails.
Gorsuch’s use of originalism is marvelous in helping us understand the purposes and bases underlying modern laws protecting society from private miscreants while protecting our right of security against government abuse and trespass. In reviewing whether NCMEC was a government actor for Fourth Amendment search purposes, Judge Gorsuch first goes back to the 1819 landmark decision Trustees of Dartmouth College v. Woodward, which addressed “public” corporations such as municipalities versus private corporations. Gorsuch then puts subsequent court decisions in proper context based on the genius of the Founders expressed by jurists John Marshall and Joseph Story.
Judge Gorsuch then reviews police powers, which he notes are one of the basic functions of government. He describes how the law governing police conduct developed from the times preceding professional police departments. Citizens of the community were the de facto law and order, with the aid of a few constables and such. Police powers, Gorsuch notes, originally were not much broader than what were “enjoyed by any private citizen – including the right to carry a weapon, to use deadly force in self-defense, and to conduct citizen’s arrests.”
Common law and natural law rights understood by the Founders played a big role in shaping the Bill of Rights. For example, on how government should be restrained, Anti-Federalist Brutus wrote, “It is therefore as proper that bounds should be set to [government officials’] authority, as that government should have at first been instituted to restrain private injuries.”
Indeed, the Fourth Amendment was originally understood in terms of private trespass. We know this because the remedies for unlawful or unreasonable searches or seizures were based in lawsuits under common law remedies against private individuals such as trespass and replevin (reclaiming property through judicial process). As understood by the influential English jurist Sir William Blackstone, trespass was slightly broader than that concept is treated today. It was an injury to various rights, not just land. Trespass had and has exceptions for emergency circumstances, such as entering a burning building to save a child, plain view of a crime, and other limited circumstances that were and are “reasonable.”
The Fourth Amendment acknowledges another exception to government trespass, which is when warrants are issued after probable cause is presented under oath and affirmation. This “exception” to government trespass is “reasonable” to protect society from miscreants. Its protocols of probable cause for warrants issued under the separation of powers protect against government abuse of this power.
Judge Gorsuch ruled that NCMEC was a government agent, and its opening of Ackerman’s email was a search under the Fourth Amendment. He wrote, “We are dealing … with a warrantless opening and examination of (presumptively) private correspondence that could have contained much besides potential contraband for all anyone knew. And that seems pretty clearly to qualify as exactly the type of trespass to [property] that the framers sought to prevent when they adopted the Fourth Amendment.” He notes that it is clear that the “common law’s ancient trespass to chattels doctrine” applies to electronic communications.
The entire opinion written by Judge Gorsuch carefully respects precedent. Yet it also notes how a several-decade departure by the courts from the property bases of the Fourth Amendment in favor of an unstated “expectation of privacy” was not sufficient to protect the scope of the right to security that is the lodestar of the Fourth Amendment. Judge Gorsuch cites a 2012 opinion written by the late Antonin Scalia in United States v. Jones resurrecting the lost property and trespass concepts of this right in the security that the Fourth Amendment protects.
In returning the case to the trial court, Gorsuch provides the direction that satisfies the Fourth Amendment’s dual purposes of protecting the community against private miscreants and the individual right of security in digital property: “[W]e are confident that NCMEC’s law enforcement partners will struggle not at all to obtain warrants to open emails when the facts in hand suggest, as they surely did here, that a crime against a child has taken place.”
Column originally published at American Thinker.