Trash on the Beach
and Constitutional Law

But now if judges use all four methods, is there a simple rule that explains when a judge is likely to use one approach or another?

Apparently not. Judges shift from one to another without apparent care or precision and usually without being aware that they are doing so. They fail to recognize that they themselves might be deploying one method but their fellow justices are using some other. They have a dim awareness, but not a very clear or precise awareness of what they are doing. The philosophy can help them be more aware. But they are likely to remain unmoved. The philosophy can then at least help us better understand what they're saying.



Take Katz v. United States.

The question was whether wiretapping a telephone booth with a recording device which operated outside of the booth constituted a "search" or "seizure" under the Fourth Amendment. Well?

What's a "SEARCH?"

What's "SEIZURE?"


The text provides: "The right of the people to be secure in their persons, housed, papers, and effects, against unreasonable searches and seizures, shall not be violated." Prior law had taken the enumerated items - "persons, houses, papers and effects" -- seriously, and had held that since a wiretap of this sort neither trespassed on property nor grabbed anything tangible, wiretapping was not prohibited, Olmstead v. U.S.

Over a dissent that stressed just this formal, abstract reading of the amendment, (TRASH METHOD ONE) the Supreme Court in Katz charted a new approach. The Fourth Amendment, said Justice Stewart, "protects people, not places," and cannot turn on "the presence or absence of a physical intrusion into any given enclosure." The purpose of the Amendment was the protection of socially justified expectations of privacy, and "[t]he Government's activities in electronically listening to and recording the petitioner's words violated the privacy upon which he justifiably relied while using the telephone booth and thus constituted a 'search and seizure' within the meaning of the Fourth Amendment." The argument proceeded from text to underlying purpose, and then from underlying purpose to characterization of the facts in terms of that purpose. TRASH: METHOD TWO)

The point is not, that one of these approaches has to be wrong, that the Constitution cannot be applied in one place according to Method Two and in another according to Method One or it just hinges on the predilection of a judge.

Peter Woll's BIG ERROR!

The point, rather, is that even with a similar problem arising from a similar text, courts, or even the same court, will proceed in different ways. Whatever explains the choice lies somewhere in the subtleties of the context and/or confusion of the justices, not in their ideologies or carefully thought-out commitment to this or that approach to a way of defining their terms.

We might explain this common indefiniteness as revealing a general judicial lack of concern for method, or as revealing a penchant on the part of judges not to make jurisprudential choices unless they have to, or simply as a further instance of the point that the process of characterizing the facts is simply less visible than the process of establishing a new rule.

Whatever the truth, the result is that case law very often does not indicate that a particular approach is the proper one to use and to sort this out both advocates and judges could use SOME PHILOSOPHY!