More on a Textual Interpretation of the 4th Amendment

John raises some interesting questions about my claim to be a textualist and how I would apply that to the Constitution's 4th Amendment:

"As a textualist, how do you propose to ever protect people's telephone conversations (words are not tangible). Moreover, how do you define unreasonable. Is the warrant requirement necessarily related to reasonableness? IS it related to the first clause AT ALL? It doesn't HAVE to be, and they can be read apart from one another."

Well, let me first say that I never said I am a strict constructionist. Strict construction suffers from many flaws. Holding to only the exact words is a way to ignore their meaning.

I said I am a textualist. As such I would look to the traditional tools of construction in order to reach a rational interpretation. Primary among these in a criminal case is always the Rule of Lenity: if there is ambiguity it must be construed against the government. I cannot think of an exact use of the doctrine at the moment but it weighs the analysis throughout.

The next doctrine I would apply would be noscitur a sociis: interpreting words by relating them to the words around them. As we look to the four words the founders included - "persons, houses, papers, and effects" - these are perhaps the most expansive words that a pre-electronics political mind could come up with to describe everything which could possibly be searched or seized. As we look to each, "persons" surely means the clothes on the person, his wig, &cetera (unless you can honestly tell me you think it means that the nude body alone cannot be seized or searched). "Effects" clearly captures the essence of any and all personalty which might belong to a person. "Houses" seems pretty self descriptive but,looking at the words around it, it probably is meant to encompass more than the mere brick and mortar building (the curtilage & privately owned realty in general).

The word which interests me the most is "papers." Papers is meant to purvey the meaning of records and communications. More specifically, it means diaries, letters, business records, &cetera. Thus it means "communicative mediums." The other option is that it only applies to all the cellulose pulp you own. So, if you were a religious man trying to keep records as they were kept in the Dead Sea Scrolls your writings would not be protected. Leaving this aside the cellulose pulp is also protected as an effect. Assuming that "papers" was meant to have a meaning (why else include it) it must mean something unique not conveyed by the other words: communicative mediums. The same protections which applied to letters would apply to telephonic or radiophonic or internet communications because they are doing exactly what letters used to do (albeit much faster); they are modern day letters. In the same vein business records, diaries, &cetera which used to be kept in books are now kept electronically in computers. Therefore, informational computer files are also "papers." The words may not be tangible but the medium is protected - but then the words scratched on the paper were never directly protected (by the 4th Amendment) only the medium was shielded (papers).

The Possible Reading as Separate Sections: It's one sentence, dealing entirely with criminal matters, offered as one Amendment to the Constitution. It is a rational and plain reading of the sentence to tie it all in together. If anyone thinks this sentence could be read with the two parts separated into one part about searches and seizures and the other about warrants I refer you to the section above about the Rule of Lenity. I also would point out that the other possible reading of warrant is for an arrest but that this could not be the entire meaning of the second part of the sentence because it speaks of "the place to be searched, and . . . things to be seized." The warrant section may be wider but the first part of the sentence is definitely encompassed within the second.

Unreasonable: As the first part of the sentence is encompassed within the second, the definition of unreasonable would be that which violated the requirements of a warrant. In other words if there is no probable cause it is unreasonable to search or seize.

Gotta admit I got no "plain text" definition of probable cause for you (and I'm not going to take the time right now to try and work one out; supper beckons).

Hope that's interesting and informative. Tomorrow I should post the long promised (at least since Saturday) Week in the Life post. It's done but I got too interested in this subject to post it today.