An Originalist GPS?
I’ll leave analysis of the Fourth Amendment implications of United States v. Jones to people who know a lot more than I do. But one interesting aspect of the decision that caught my eye was Justice Alito’s takedown of the originalist methodology employed by Justice Scalia’s majority opinion. Justice Alito’s concurrence in the judgment begins:
This case requires us to apply the Fourth Amendment’s prohibition of unreasonable searches and seizures to a 21st-century surveillance technique, the use of a Global Positioning System (GPS) device to monitor a vehicle’s movements for an extended period of time. Ironically, the Court has chosen to decide this case based on 18th-century tort law.
Later on, Justice Alito discusses what the Framers might have thought about such tracking devices, and posits:
Is it possible to imagine a case in which a constable secreted himself somewhere in a coach and remained there for a period of time in order to monitor the movements of the coach’s owner? The Court suggests that something like this might have occurred in 1791, but this would have required either a gigantic coach, a very tiny constable, or both—not to mention a constable with incredible fortitude and patience.
And this isn’t the first time that Justice Alito has implied that the originalist methodology is ill-suited to resolving cases involving new technologies. At oral argument in Brown v. Entertainment Merchants, he suggested to counsel that “what Justice Scalia wants to know is what James Madison thought about video games. Did he enjoy them?”
Of course, Justice Alito isn’t categorically opposed to originalism. For instance, as a number of commentators have noted, all nine of the Justices signed onto originalist opinions in DC v. Heller. But neither is he one of the two Justices who advocate most strongly for originalist interpretations. So what strikes me as unique about his statements in Jones and Entertainment Merchants is that Justice Alito has articulated something of a decision rule for when (not) to apply the originalist methodology: It is particularly unlikely that there will be useful 18th-century analogues for divining how the Framers would have thought about new technologies. Just as the small constable in a big stagecoach from Jones is a ridiculous hypothetical, so too is it absurd to compare choose-your-own-adventure books to violent video games in Entertainment Merchants. Going forward, it will be interesting to see if Justice Alito is willing to articulate any additional decision rules for when originalism should (or should not) be applied to particular cases.