Sophia Z. Lee, University of Pennsylvania Carey Law School, has posted The Reconciliation Roots of Fourth Amendment Privacy, which appears in the University of Chicago Law Review:
The Roberts Court has made protecting “the privacies of life” a catchphrase of Fourth Amendment law in the digital era. The time is thus ripe for revisiting the doctrinal and political roots of this newly influential quote from the Court’s 1886 decision Boyd v. United States. Existing scholarship views Boyd and its paean to privacy as an opening salvo in the Supreme Court’s turn-of-the-twentieth-century deregulatory jurisprudence (often associated with the Court’s most famous substantive due process decision, Lochner v. New York). Scholars also assume Boyd’s emphasis on privacy was in keeping with the Founders’ view of the Fourth Amendment.--Dan Ernst
This Article makes a novel argument that Boyd and its elevation of protecting the “privacies of life” to an animating principle of the Fourth Amendment was instead a product of Reconstruction and its dismantlement. Doctrinally, the Article argues that legal actors did not commonly associate the Fourth Amendment with something they called “privacy” until after the Civil War. This association, along with Boyd’s other core doctrinal elements, was instead established during Reconstruction. Further, these Fourth Amendment innovations were pioneered in Congress, not the federal courts. Politically, the Article argues that Boyd’s innovations did not arise in response to growing federal economic regulation. Instead, the idea that the Fourth Amendment protected the privacies of life was fed by white Americans’ commitment to preserving racial hierarchy after the Civil War. Shared by moderate Republicans and Democrats, this embrace of Fourth Amendment privacy built an anodyne bridge between otherwise fierce political foes. In other words, Fourth Amendment privacy was produced by and helped secure Reconciliation—the process through which white Americans North and South, Democrat and Republican came together to limit Reconstruction, preserve white supremacy, and pave the way for the violent disenfranchisement of newly freed Black men.
The Article is primarily a work of legal history; it concludes, however, by considering the divergent doctrinal implications of resituating Boyd and Fourth Amendment privacy in the politics of Reconciliation. Doing so supports the Roberts Court’s recent Fourth Amendment decisions without undermining scholars who contend that the Fourth Amendment protected what we today call privacy from the start. At the same time, this history poses a problem for Justice Neil Gorsuch and other libertarians who use the modern administrative state’s connections to Jim Crow-era white supremacy to undermine its legitimacy. This Article shows that the very libertarian tradition championed by these skeptics of the administrative state suffers the same tainted roots. Critical scholars, for their part, document how constitutional privacy doctrines provide limited protection to marginalized communities. This Article’s history could support their reparative case for more robust Fourth Amendment protections.
