Do Rights Mean Different Things in Different Places? My Friend’s Harv.L.Rev. Note Says Yes, and Persuades Me

This morning I blogged, and asked whether the Constitution has a geography clause, and whether  it was correct that constitutional liberties should mean different things in different places. I argued that the Fourth Amendment means the same thing in Bismarck, North Dakota, as it does in Chicago. So why should First and Second Amendment rights mean different things in different places.

But am I right about the Fourth Amendment?

A good friend pointed me to a Harvard Law Review note he published.

Check out the unsigned note THE FOURTH AMENDMENT’S THIRD WAY. The author notes:

This Note confronts a “fundamental question about the fourth
amendment” that lies beneath all of its doctrinal puzzles, namely, “what method should be used to identify the range of law enforcement practices that it governs and the abuses of those practices that it restrains.” 4 It does so, in particular, by examining the relationship between the Fourth Amendment and state law. This Note argues that the Amendment should be interpreted as dynamically incorporating state law, and it explains how this interpretive method injects substantive
legal content into the vague constitutional text and reconciles the tension between the Amendment’s two clauses.5 It contends that the dynamic incorporation method is pragmatically and normatively superior to the major alternatives while remaining justified by constitutional theory.

Among the numerous potential sources of legal content for the
Fourth Amendment, one in particular has firm roots in the Amendment’s jurisprudence yet has been subject to very little scholarly analysis. That source is state law.

From a textual perspective, dynamic incorporation offers clarity and common sense. The first clause of the Amendment provides the general rule: unreasonable searches by state actors are unconstitutional. Reasonableness should not be a fuzzy term with fluctuating meaning and does not call upon the federal judiciary to engage in value judgments or to balance competing interests. Rather, what is reasonable is that which is lawful under state law; inversely, what is unreasonable is that which is unlawful under state law. This interpretation is sensible, given that the “English common-law tradition to which the [American] revolutionaries appealed often tied legality to ‘reasonableness.’”40

How would this work in practice?

First, courts would ask whether, under state law, the challenged police actions would constitute an actionable offense if a private party had committed them.42 If the answer is yes — for example, if the search would have been actionable trespass — then the search would violate the Fourth Amendment. If the answer is no — for example, if common law decisions of
the state’s judiciary had established an exception or defense to the trespass — then the actions would be constitutional.

Second, searches or seizures conducted pursuant to a warrant
would be constitutional provided that the warrant had been validly issued. Ancillary questions concerning the procedures for actions taken under a warrant, such as the applicability of the knock-and-announce requirement,43 obviously cannot be tested under state law because private actors do not obtain warrants, and therefore no analogous body of state law deals with how private actors may interact when one has a warrant.44 Accordingly, questions surrounding the constitutionality of searches conducted pursuant to warrants cannot be analyzed using the dynamic incorporation approach. This constitutes a gap in the method, and answers would have to be sought elsewhere.45

I like the idea, but I do not think the dynamic incorporation approach would apply to the First and Second amendment, from a textualist perspective, in the way the note argues it applies to the Fourth Amendment.

The Fourth Amendment provides:

The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no warrants shall issue, but upon probable cause, supported by oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.

As the note discusses, the magic word of reasonableness lends itself well to a reference to state law and dynamic incorporation. I agree thus far.

But I do not see the First and Second amendments, from a textualist perspective, being susceptible to a dynamic incorporation method referring to state law.

First Amendment:

Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the government for a redress of grievances.

Second Amendment (got this one memorized by now):

A well regulated militia, being necessary to the security of a free state, the right of the people to keep and bear arms, shall not be infringed.

These rights do not seem to allow a referent to state law to understand the boundary of the right, whereas the Fourth Amendment speaks of reasonableness.

So I will modify my original thesis. A right can mean different things in different places if the text of the amendment lends itself to such an analysis.

On further reflection, the “contemporary community standards” makes no sense under the First Amendment as written. The text of the amendment would foreclose any referent to state or local law. Same for the Second Amendment. These tests seem largely untenable.

I definitely plan on writing about this in the future. Stay tuned.

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One Response to “Do Rights Mean Different Things in Different Places? My Friend’s Harv.L.Rev. Note Says Yes, and Persuades Me”

  1. Is Internet Obscentiy Based On National or Community Standards? 9th Circuit Thinks National, and Constitution Does Not Have Geography Clause. « Josh Blackman's Blog Says:

    […] Courts have imposed a geography clause in several areas, including fourth amendment protections, second amendment gun control laws (an oxymoron if I ever heard one), and most famously in first […]


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