📄 suprem~1.txt
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____________________ 17Id. at 506-512.
___ 18388 U.S. 41 (1967). 19Id. at 58-60.
___ 20389 U.S. 347 (1967). 21Id. at 348.
___ 22Id. at 353.
___ 23Id. at 352.
___ 5 people not places.24 Thus, it refused to make an exception to the requirement of probable cause even though no tangible goods were seized.25 Consequently, the Court disregarded the grounds based upon physical intrusion and developed its own principle: a warrant is required whenever the individual has a reasonable expectation of privacy.26 In order to appreciate the break the Katz Court made from previous rulings on electronic surveillance we need to look at the opinion of the court (delivered by Justice Stewart) in some detail. In particular, we see that the Katz Court extended the boundary of Fourth Amendment protection by means of an abstract notion of privacy which was unacceptable in prior decisions. The emphasis on privacy as distinct from place becomes clear when we note that the Court rejected the defendant's formulation of the constitutional issues. The defendant based his questions upon: (1) whether a telephone booth is a constitutionally protected area, and (2) whether physical penetration of a constitutionally protected area is necessary in order to claim a violation of the Fourth Amendment.27 Firstly, the Court rejected the phrase "constitutionally protected area." Secondly, it held that the Fourth Amendment cannot be interpreted as a "general constitutional `right to privacy`." It qualified this by stating that, although the Fourth Amendment protects individual privacy against specific kinds of government intrusion, its protection goes further than the realm of private property. As for a person's "general right to privacy," such protection is left to the law of the individual States. Having made this qualification, the Court proceeded to develop a notion of a right to privacy applicable to the Fourth Amendment. The issue is no longer a matter of protecting places. What an individual "seeks to preserve as private, even in an area accessible to the public, may be constitutionally protected."28 When someone steps into a telephone booth and closes the door there is an expectation of privacy. While the Olmstead Court considered an extension of the boundary of protection to be outside its jurisdiction, the Katz Court held that a more narrow definition of privacy would neglect the "vital role that the public telephone has come to play in private communication."29 In effect, the Katz Court extended the boundary of the Fourth Amendment by shifting the debate from
____________________ 24Id. at 353.
___ 25Id. at 357-358.
___ 26Id. at 359.
___ 27Id. at 349-350.
___ 28Id. at 350.
___ 29Id. at 352.
___ 6 the realm of private property to the more abstract realm of personal privacy. Hence, it was able to rule that government recording of the defendant'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."30 Thus, the Katz Court was able to openly depart from what it called Olmstead's "narrow view" and claim that the "Fourth Amendment governs not only the seizure of tangible items, but extends as well to the recording of oral statements, overheard without any `technical trespass under ... local property law.'"31 Having established that electronic surveillance does require a warrant, the Court proceeded to spell out guidelines for obtaining a warrant. Since electronic surveillance was treated as if it constituted a physical intrusion, no exceptions were made to the requirements for a warrant given in the text of the Fourth Amendment and developed in common law. In presenting its guidelines, the Court was particularly concerned that electronic surveillance not be left merely to the discretion of law enforcement agents. Yet it explicitly stated that, although a situation involving "national security" may be an exception to the requirement of prior authorization, this case did not lend itself to such a question.32 It is worth noting that Justices Douglas and Brennan stated in a concurring opinion that the Executive Branch, including the President, has no grounds to engage in electronic surveillance without a warrant, even in matters of national security.33 In order to appreciate the significance of the activist interpretation employed in the decision of Katz, we need to examine the concurring opinion of Justice Harlan and the dissenting opinion of Justice Black. In his concurring opinion, Justice Harlan pointed out that no longer associating privacy with place requires a rule for what constitutes protection of people. In his analysis he demonstrates that the Court has established a twofold requirement for privacy: (1) that a person have exhibited an actual (subjective) expectation of privacy, and (2) that the expectation be one that society is prepared to recognize as "reasonable."34 It is significant that such a rule appears no where in the text of the Constitution. In fact, this is precisely the kind of judgment the Olmstead Court refused to make because it considered such an
____________________ 30Id. at 353.
___ 31Id. at 353.
___ 32Id. at 359.
___ 33Id. at 359-360.
___ 34Id. at 361.
___ 7 extension of the meaning of "search and seizure" to be the proper jurisdiction of Congress. In making this rule explicit, Justice Harlan does not concerned himself with upsetting the balance of powers in the branches of the federal government. In his dissenting opinion, Justice Black claims that the decision rendered by the Katz Court effectively amounts to a revision of the Fourth Amendment. When we examine his argument we see that Black employs an originalist interpretation of the Constitution which cannot be reconciled with an activist stand. The philosophy of original understanding is based upon the neutral application of a legal principle, which includes neutrality in deriving, defining, and applying the principle. A judge is to seek the original understanding of the words in the text of the Constitution in order that the Court may remain a legal rather than a political institution. Hence, originalism holds that the Court is not free to define the scope of a principle as it sees fit, for the outcome of the decision would then be based upon grounds that are not contained in the original understanding of the principle it purports to apply. Such grounds cannot come from the legislature, and hence, must come from the personal preferences of the justices.35 Justice Black bases his dissenting decision on the meaning of the term "eavesdropping." According to his analysis, the Katz Court incorrectly defined "wiretapping" as a form of search and seizure rather than defining it more accurately as "eavesdropping carried on by electronic means."36 Black interprets the Court's opinion as opening the door for the enactment and the enforcement of laws regulating wiretapping in accord with the Fourth Amendment despite the obstacles the Berger Court set in the way of wiretapping laws. In order to appreciate these obstacles, we must recall that the Berger Court demanded the same procedure for obtaining a warrant for electronic surveillance as for physical intrusion. Yet a warrant for search and seizure normally requires that the named parties be notified. In the case of electronic surveillance, however, such a requirement obviously defeats the effectiveness of the method of intrusion. Although Black held that such obstacles to legislation regulating wiretapping must be removed, the failure of the Court to make a distinction between "search and seizure" and "eavesdropping" incorrectly extended the Fourth Amendment to include wiretapping. In arguing for his opinion, Black upholds two convictions: (1) the words of the Fourth Amendment do not bear the meaning given them by the Court's decision, and (2) it is not the proper role of the Supreme Court to "rewrite the Amendment in order `to bring in it in harmony with the times` and thus reach a result
____________________ 35For a thorough presentation of originalist approach to the Constitution see Chapter 7 of, R. Bork, The Tempting of America ________________________ (New York: The Free Press, 1990). 36389 U.S. 364. 8 that many people believe to be desirable."37 Thus, we see that Black is employing two fundamental tenets of originalism: (1) justices must seek the original meaning of the words of the text, and (2) justices are not to rewrite the scope of a principle where the Constitution is silent for this is the proper role of the democratically elected legislature. After quoting the entire Fourth Amendment, Black establishes that the "Framers' purpose" was to protect tangible things and not to protect conversation which cannot be searched or seized according to the normal meaning of such words. Moreover, the Amendment refers to things which must be described for they are already in existence. Yet it is impossible to describe a future conversation. Hence, Black concludes that the Fourth Amendment does not apply to eavesdropping. Although wiretapping was unknown at the time of the framing of the Bill of Rights, eavesdropping certainly was practiced and could of being incorporated into the Fourth Amendment.38 Black proceeds by giving an overview of Supreme Court cases dealing the Fourth Amendment's applicability to eavesdropping. Thus, he attempts to show that his opinion is consistent with the Court's previous decisions, in particular, with all the relevant cases from Olmstead through to Berger. He concludes that he is simply applying the scope of the Fourth Amendment which the Court has traditional followed and that the Katz Court has made a distinctive break in order to include eavesdropping.39 In a footnote, Black states that "the Court is promulgating new doctrine instead of merely following what it `has long held.`"40 According to Black, the Court has decided that a conversation can be "seized."41 In light of his conviction that it is not the place of the Supreme Court to "keep the Constitution up to date," he claims that the Court does not have the power to give new meaning to words, especially a meaning which the words to do have in "common ordinary usage." To exercise such power is to turn the Court into "a continuously functioning constitutional convention." Black points out that this shift in the Court's policy happened only recently and is coincident with its "referring incessantly to the Fourth Amendment not so much as a law against unreasonable searches and seizures as one to protect an individual's privacy." Moreover, he considers this an arbitrary substitution of the "Court's
____________________ 37Id. at 364.
___ 38Id. at 365-366.
___ 39Id. at 386-389.
___ 40Id. at 372 (footnote).
___ 41Id. at 372.
___ 9 language" for "Constitution's language."42 As another example⌨️ 快捷键说明
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