Neil Gorsuch should be hailed by privacy advocates

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.


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