Wiretapping before the wires: The post office and the birth of communications privacy

Stanford Law Review

Volumn 60, Issue 2, 2007, Pages 553-594

  Desai, Anuj C ^a  

^a UNIVERSITY OF WISCONSIN LAW SCHOOL   (United States)

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EID: 38849118448     PISSN: 00389765     EISSN: None     Source Type: Journal    
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References (360)

1. See James Risen & Eric Lichtblau, Bush Lets U.S. Spy on Callers Without Courts, N.Y. TIMES, Dec. 16, 2005, at Al.
2. Pub. L. No. 95-511, 92 Stat. 1783 (1978) (codified as amended at 50 U.S.C. §§ 1801-1811, 1821-1829, 1841-1846, 1861-1862 (2000)). For most recent amendments, see Protect America Act of 2007, Pub. L. 110-55, 121 Stat. 552 (2007), although most of the changes are due to expire on February 1, 2008.
3. See id. § 6(c), 121 Stat, at 557.
4. See, e.g., Complaint at ¶ 193, Am. Civil Liberties Union v. Nat'l Sec. Agency, 438 F. Supp. 2d 754 (E.D. Mich. 2006), available at http://www.aclu.org/images/nsaspying/asset_upload_file137_23491.pdf;
5. Robert Bloom & William J. Dunn, The Constitutional Infirmity of Warrantless NSA Surveillance: The Abuse of Presidential Power and the Injury to the Fourth Amendment, 15 WM. & MARY BILL RTS. J. 147, 152 (2006) (arguing that the warrantless surveillance program violates the Fourth Amendment);
6. Lawrence Friedman & Renée M. Landers, Domestic Electronic Surveillance and the Constitution, 24 J. MARSHALL J. COMPUTER & INFO. L. 177, 185-94 (2006) (same);
7. Wilson R. Huhn, Congress Has the Power to Enforce the Bill of Rights Against the Federal Government; Therefore FISA Is Constitutional and the President's Terrorist Surveillance Program Is Illegal, 16 WM. & MARY BILL RTS. J. (forthcoming 2007) (same);
8. John Cary Sims, What the NSA Is Doing. . . and Why It's Illegal, 33 HASTINGS CONST. L.Q. 105, 138 n.100 (2006) (suggesting that the mere fact that it is the executive branch rather than a neutral judge that is evaluating the need for the surveillance means that even if the NSA uses a "probable cause" standard, "the core concerns of the Fourth Amendment would remain a serious obstacle to upholding the legality of the program");
9. American Bar Association: President Bush Is "Undermining Rule of Law" by Ignoring Laws Passed by Congress (Democracy Now! radio broadcast July 26, 2006), transcript available at http://www. democracynow.org/article.pl?sid=06/07/26/147209#transcript;
10. cf. Brian R. Decker, Comment, "The War of Information": The Foreign Intelligence Surveillance Act, Hamdan v. Rumsfeld, and the President's Warrantless Wiretapping Program, 9 U. PA. J. CONST. L. 291, 307-14 (2006) (arguing that it remains an open question whether the warrantless surveillance program is constitutional under the Fourth Amendment);
11. Richard Henry Seamon, Domestic Spying: Presidential Power and Fourth Amendment Limits 1 (unpublished manuscript), available at http://ssrn.com/abstract=911287 (last visited Oct. 22, 2007) (arguing that a "genuine national security emergency" would justify the President conducting surveillance "outside FISA" and that such surveillance would satisfy the Fourth Amendment, but that the current program's status as an ongoing broad "program" prevents it from falling within that narrow exception). Others have written about the separation-of-powers implications of the NSA program.
12. Compare, e.g., John Yoo, The Terrorist Surveillance Program and the Constitution, 14 GEO. MASON L. REV. 565, 566 (2007) (arguing that the Terrorist Surveillance Program "represents a valid exercise of the President's Commander-in-Chief authority to gather intelligence during wartime"),
13. John C. Eastman, Listening to the Enemy: The President's Power to Conduct Surveillance of Enemy Communications During Time of War, 13 ILSA J. INT'L & COMP. L. 1, 9 (2006) (arguing that the President's Article II powers confer upon him the authority to conduct warrantless "surveillance of enemy communications in time of war and of the communications to and from those he reasonably believes are affiliated with our enemies"),
14. and Letter from John C. Eastman, Prof, of Law, Chapman Univ., to James Sensenbrenner, Jr., Chairman, U.S. House of Representatives 6 (Jan. 27, 2006), available at http://ssm.com/abstract=926000 (same),
15. with Heidi Kitrosser, "Macro-Transparency" as Structural Directive: A Look at the NSA Surveillance Controversy, 91 MINN. L. REV. 1163, 1164-65 (2007) (arguing that defenders of the NSA surveillance program "overlook... the Constitution's careful balance of powers between the legislative and executive branches"),
16. and Huhn, supra (arguing that FISA is constitutional under separation-of-powers principles).
17. Am. Civil Liberties Union v. Nat'l Sec. Agency, 438 F. Supp. 2d 754, 773-75 (E.D. Mich. 2006), vacated, 493 F.3d 644 (6th Cir. 2007), petition for cert, filed, Oct. 3, 2007 (No. 07-468). With respect to the district court's Fourth Amendment holding, the Court of Appeals ruled that the plaintiffs did not have standing.
18. See Am. Civil Liberties Union v. Nat'l Sec. Agency, 493 F.3d at 657.
19. See Katz v. United States, 389 U.S. 347 (1967);
20. Berger v. New York, 388 U.S. 41 (1967);
21. Silverman v. United States, 365 U.S. 505 (1961).
22. See generally DANIEL J. SOLOVE, MARC ROTENBERG, & PAUL M. SCHWARTZ, INFORMATION PRIVACY LAW 207-63 (2d ed. 2006). Although the premise that the Fourth Amendment protects communications privacy is unequivocally correct, this does not necessarily mean that the NSA program violates the Fourth Amendment. There are numerous exceptions to the general rule.
23. Dan Solove and Neil Richards have used the term " confidentiality" to describe a "conception of privacy . . . based on the protection of relationships." Neil M. Richards & Daniel J. Solove, Privacy's Other Path: Recovering the Law of Confidentiality, 96 GEO L.J. 123, 127 (2007). Using their taxonomy, I could use the term "confidentiality" rather than "privacy." Still, I use the phrase "communications privacy" here and throughout because it is familiar and more commonly used.
24. In relevant part, the Fourth Amendment provides that "[t]he right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated." U.S. CONST, amend. IV.
25. See, e.g., Katz, 389 U.S. at 365-66 (Black, J., dissenting).
26. 388 U.S. 41 (1967).
27. 389 U.S. 347 (1967). Ironically enough, Katz did not actually involve wiretapping, though it did involve the use of an electronic device to record a telephone conversation.
28. 277 U.S. 438, 471 (1928) (Brandeis, J., dissenting).
29. Elsewhere, I examine two First Amendment principles: First Amendment restrictions on government spending-the First Amendment subset of the so-called "unconstitutional conditions" doctrine-and the "right to receive ideas." The Court's first articulation of both of these principles also occurred in the context of constitutional challenges to postal regulations, and both were tethered to the institutional context of the post office. See Anuj C. Desai, The Transformation of Statutes into Constitutional Law: How Early Post Office Policy Shaped Modern First Amendment Doctrine, 58 HASTINGS L.J. 671 (2007).
30. I supply more examples in Desai, supra note 12.
31. 277 U.S. 438, 471 (1928) (Brandeis, J., dissenting). Many scholars see Brandeis's dissent not only as the origin of communications privacy, but also as the foundation of the entire edifice of modern Fourth Amendment privacy law.
32. See, e.g., William C. Heffernan, Privacy Rights, 29 SUFFOLK U. L. REV. 737, 772 (1995) ("[T]he origin of modern privacy law is to be found in a passage Justice Louis Brandeis included in his 1928 dissent in Olmstead v. United States.");
33. Orin S. Kerr, The Fourth Amendment and New Technologies: Constitutional Myths and the Case for Caution, 102 MICH. L. REV. 801, 817 n.86 (2004) (listing other sources for similar point);
34. Michael S. Leib, E-mail and the Wiretap Laws: Why Congress Should Add Electronic Communication to Title Ill's Statutory Exclusionary Rule and Expressly Reject a "Good Faith" Exception, 34 HARV. J. ON LEGIS. 393, 399 (1997) (reading Katz as overruling Olmstead based on an "incorporation of] Brandeis's reasoning");
35. Daniel J. Solove, Conceptualizing Privacy, 90 CAL. L. REV. 1087, 1101 (2002) (stating that "Brandeis's . . . dissent in Olmstead [has] had a profound impact on the law of privacy and on subsequent theories of privacy"
36. and reading Katz v. United States, 389 U.S. 347 (1967), as overruling Olmstead based on Katz's "adoption of] Brandeis's view");
37. cf. Kerr, supra, at 804 (noting that Brandeis's dissent "provides the guiding light" for proponents of the view that the Fourth Amendment should be interpreted broadly as communications technology advances).
38. KENNETH ELLIS, THE POST OFFICE IN THE EIGHTEENTH CENTURY: A STUDY IN ADMINISTRATIVE HISTORY vii (1958).
39. Id. at viii.
40. Id. at 61 (internal citation omitted).
41. In 1844, the British public learned about the existence of the "Secret or Inner Office." The ensuing uproar led to a drastic reduction of the use of warrants to open mail, as the "Secret Office" was officially abolished the following year. Compare, e.g., ELLIS, supra note 15, at 138-42,
42. with HOWARD ROBINSON, THE BRITISH POST OFFICE: A HISTORY 337-52 (1948).
43. ELLIS, supra note 15, at 62.
44. A 1663 statute imposed the warrant requirement. See id.;
45. J.C. HEMMEON, THE HISTORY OF THE BRITISH POST OFFICE 26 (1912);
46. see also Post Office Act, 1711, 9 Ann., c. 10, § 40 (prohibiting the "open[ing], detaining], or delaying]" of letters).
47. ELLIS, supra note 15, at 63.
48. Id. at 64.
49. Julie M. Flavell, Government Interception of Letters From America and the Quest for Colonial Opinion in 1775, 58 WM. & MARY Q. 403, 406 (2001), available at http://www.historycooperative.org/ journals/wm/58.2/flavell.html;
50. see also ROBINSON, supra note 18, at 121 (discussing a 1730 warrant that listed 112 names and noting that "[s]imilar orders are not infrequent");
51. Edward Raymond Turner, The Secrecy of the Post, 33 ENG. HIST. REV. 320, 323 (1918) (same).
52. Flavell, supra note 23, at 406.
53. ELLIS, supra note 15, at 63;
54. see also DAVID J. SEIPP, THE RIGHT TO PRIVACY IN AMERICAN HISTORY 10 (1978).
55. Flavell, supra note 23, at 407
56. (quoting ROGER WELLS, INSURRECTION: THE BRITISH EXPERIENCE, 1795-1803, at 33 (1983));
57. see also ROBINSON, supra note 18, at 122 ("[I]t is impossible to determine how much misuse of the privilege took place.").
58. See generally id. at 119-25 (describing the practice and giving numerous examples of both the opening of mail and the perception on the part of letter-writers that their letters were being read);
59. HERBERT JOYCE, THE HISTORY OF THE POST OFFICE FROM ITS ESTABLISHMENT DOWN TO 1836, at 17072 (London, Richard Bentley & Son 1893) (describing the establishment of a private office around 1718 "which was expressly maintained for the purpose of opening and inspecting letters" and the meager expectations of sanctity of letters during the 18th century).
60. But cf. HEMMEON, supra note 20, at 47 ("It is difficult to determine how great an extent this practice was prevalent as there seems little doubt that the complainants may occasionally have been prompted by their own vanity to believe that their correspondence had been tampered with.").
61. Flavell, supra note 23, at 407.
62. See generally Turner, supra note 23, at 325-26.
63. See ROBINSON, supra note 18, at 122;
64. Turner, supra note 23, at 325.
65. See generally Flavell, supra note 23. The British postal operations in the American colonies had ceased by December 1775, and thus so too did this unusual public-opinion surveillance.
66. See WARD L. MINER, WILLIAM GODDARD, NEWSPAPERMAN 136 (1962);
67. WILLIAM SMITH, THE HISTORY OF THE POST OFFICE IN BRITISH NORTH AMERICA, 1639-1870, at 65 (1920);
68. Notice from the New York General Post Office (Dec. 25, 1775),
69. reprinted in 4 AMERICAN ARCHIVES 453 (Peter Force ed., 4th ser., 1837), available at http://colet.uchicago.edu/cgi- bin/amarch/getdoc.pl?/projects/artflb/databases/efts/AmArch/IMAGE/.10444.
70. DAVID H. FLAHERTY, PRIVACY IN COLONIAL NEW ENGLAND 116 (1972).
71. Id. at 116-17.
72. Id. at 118.
73. Cf. 17 U.S.C.A. § 1201 (West 2007) (defining "technological protection measure" for the purposes of the Digital Millennium Copyright Act).
74. See FLAHERTY, supra note 30, at 125.
75. Id. at 124-25
76. (citing WILLIAM BRADFORD, OF PLYMOUTH PLANTATION 149-53 (Boston, Little, Brown 1856)).
77. FLAHERTY, supra note 30, at 118-19 (quoting 1699 Mass. Acts 281).
78. Since postal service was provided by postriders on horseback, service was far less reliable during winter.
79. FLAHERTY, supra note 30, at 119.
80. See Post Office Act, 1711, 9 Ann., c. 10, § 40;
81. see also sources cited supra note 20.
82. See FLAHERTY, supra note 30, at 121;
83. see also 5 THE PAPERS OF BENJAMIN FRANKLIN 162, 164 (Leonard W. Labaree et al. eds., 1962).
84. See 5 THE PAPERS OF BENJAMIN FRANKLIN 162, supra note 40;
85. see also FLAHERTY, supra note 30, at 121.
86. FLAHERTY, supra note 30, at 121.
87. See ROBINSON, supra note 18, at 120 (quoting the oath required under the Act of 1711).
88. MINER, supra note 29, at 135;
89. see also 2 JOURNALS OF THE CONTINENTAL CONGRESS, 1774-1789, at 208-09 (July 26, 1775) (Worthington C. Ford et al. eds., 1936), available at http://memory.loc.gov/ammem/amlaw/lawhome. html. For more details of Goddard's connection with the establishment of the American post office,
90. see Desai, supra note 12, at 681-83.
91. WESLEY EVERETT RICH, THE HISTORY OF THE UNITED STATES POST OFFICE TO THE YEAR 1829, at 44 (1924);
92. accord SEIPP, supra note 25, at 10. As a side note, Goddard also viewed "Secrecy" as one of the important "Principles" on which he established his newspaper.
93. See MINER, supra note 29, at 75. "Secrecy" in this context might be analogized to what today we would call the "journalist's privilege," since what it meant was the willingness to print pseudonymous articles without disclosing the author's identity.
94. William Goddard, Proposal for Establishing an American Post Office (1774),
95. reprinted in 1 AMERICAN ARCHIVES 500 (Peter Force ed., 4th ser., 1837), available at http://colet.uchicago.edu/cgi- bin/amarch/getdoc.pl?/projects/artflb/databases/efts/AmArch/IMAGE/.562.
96. Elsewhere, I explain in greater detail the importance of the connection between the post office and the press for understanding the First Amendment. See Desai, supra note 12.
97. Cf., e.g., MINER, supra note 29, at 123 (noting that Goddard's creation of a parallel post was illegal).
98. See also Goddard, supra note 46, at 501 (noting that the parliamentary post maintained "a Set of Officers, Ministerial indeed, in their creation, direction and dependence . . . into whose hands all the social, commercial and political intelligence of the Continent is necessarily committed; which, at this time, every one must consider as dangerous in the extreme").
99. Goddard, supra note 46, at 503.
100. See SEIPP, supra note 25, at 1, 11;
101. SMITH, supra note 29, at 50;
102. LEONARD D. WHITE, THE FEDERALISTS: A STUDY IN ADMINISTRATIVE HISTORY 191 (1956).
103. 9 JOURNALS OF THE CONTINENTAL CONGRESS, 1774-1789, supra note 44, at 817 (Oct. 17, 1777).
104. Id.
105. See An Ordinance for Regulating the Post Office of the United States of America, 23 JOURNALS OF THE CONTINENTAL CONGRESS 1774-1789, supra note 44, at 670-71 (Oct. 18, 1782).
106. The full text of the relevant provision reads as follows: And be it further ordained by the authority aforesaid, that the Postmaster General, his clerk or assistant, his deputies, and post and express-riders, and messengers, or either of them, shall not knowingly or willingly open, detain, delay, secrete, embezzle or destroy, or cause, procure, permit or suffer to be opened, detained, delayed, secreted, embezzled or destroyed any letter or letters, packet or packets, or other despatch or despatches, which shall come into his power, hands or custody by reason of his employment in or relating to the Post Office, except by the consent of the person or persons by or to whom the same shall be delivered or directed, or by an express warrant under the hand of the President of the Congress of these United States, or in time of war, of the Commander in Chief of the armies of these United States, or of the commanding officer of a separate army in these United States, or of the chief executive officer of one of the said states, for that purpose, or except in such other cases wherein he shall be authorized so to do by this ordinance: (provided always, that no letter, franked by any person authorized by this ordinance to frank the same, shall be opened by order of any military officer, or chief executive officer of either of the states.) Id. at 671. In 1786,
107. Congress proposed a new post office ordinance, which included similar language. See An Ordinance for Regulating the Post Office of the United States of America, proposed June 15, 1786, 32 JOURNALS OF THE CONTINENTAL CONGRESS 1774-1789, supra note 44, at 46, 48 (Feb. 14, 1787) .
108. The Ordinance was never passed. See Richard P. McCormick, Ambiguous Authority: The Ordinances of the Confederation Congress, 1781-1789, 41 AM. J. LEGAL HIST. 411, 438-39 (1997) (listing all Ordinances with no mention of any postal Ordinances after 1782);
109. see also REGISTER OF ORDINANCES, in PAPERS OF THE CONTINENTAL CONGRESS, microformed on M247, reel 194, item 175 (Nat'l Archives Micoform Publications) (listing all Continental Congress Ordinances and similarly making no mention of any post-1782 postal Ordinances).
110. RICH, supra note 45, at 57.
111. Id.
112. See, e.g., RICHARD R. JOHN, SPREADING THE NEWS: THE AMERICAN POSTAL SYSTEM FROM FRANKLIN TO MORSE 30-31 (1995) (disagreeing with Rich's broader assessment that the U.S. Post Office policies were simply extensions of the policies of the British).
113. The relevant provision of the 1792 Act reads as follows: [I]f any person, employed in any of the departments of the general post-office, shall unlawfully detain, delay, or open, any letter, packet, bag or mail of letters, with which he shall be entrusted, or which shall have come to his possession, and which are intended to be conveyed by post: Or if any such person shall secrete, embezzle or destroy any letter or packet, entrusted to him, as aforesaid, and which shall not contain any security for, or assurance relating to money, as herein after described, every such offender, being thereof duly convicted, shall, for every such offence, be fined not exceeding three hundred dollars, or imprisoned not exceeding six months, or both, according to the circumstances and aggravations of the offence. Act of Feb. 20, 1792, § 16, 1 STAT. 232, 236.
114. Current law has a similar provision, see 18 U.S.C. § 1703 (2000), as well as other provisions regulating postal privacy,
115. see id. § 1702;
116. U.S.C § 404(c) (2000).
117. See generally Anuj C. Desai, Can the President Read Your Mail? A Legal Analysis 1 (Univ. Wis. Law Sch. Legal Studies Research Paper Series, Paper No. 1035, 2007), available at http://ssrn.com/abstract=962453 (concluding "that the statutory prohibition on mail opening only applies to mail matter that falls into the category of 'letter'").
118. See 2 ANNALS OF CONG. 233 (Joseph Gales ed., 1834). Of course, the connection between giving the President or the Postmaster General the power to designate postal routes and giving either of them the power to intercept letters is not apparent on its face. More likely, the argument was a rhetorical method for tying proponents of the delegation of power to the broader notion of stronger executive powers, which sullied them with making "advances towards Monarchy."
119. See id.
120. Note, The Right to Privacy in Nineteenth Century America, 94 HARV. L. REV. 1892, 1899 & n.51 (1981);
121. see David J. Seipp, Curriculum Vitae, available at http://www.bu.edu/law/faculty/profiles/fullcvs/full-time/seipp_d.html (attributing the unsigned Note to Seipp).
122. 23 JOURNALS OF THE CONTINENTAL CONGRESS 1774-1789, supra note 44, at 670-71 (Oct. 18, 1782).
123. 96 U.S. 727 (1878).
124. Id. at 730.
125. DAVID P. CURRIE, THE CONSTITUTION IN THE SUPREME COURT: THE FIRST HUNDRED YEARS 1789-1888, at 442-44 (1985) (putting the case into the category of freedom of expression);
126. DAVID M. RABBAN, FREE SPEECH IN ITS FORGOTTEN YEARS, 1870-1920, at 137-38 (1997);
127. David M. Rabban, The Free Speech League, the ACLU, and Changing Conceptions of Free Speech in American History, 45 STAN. L. REV. 47, 64 (1992) (referring to the case as a "First Amendment challenge");
128. David Yassky, Eras of the First Amendment, 91 COLUM. L. REV. 1699, 1720 (1991) (referring to the Court's holding as a rejection of "the First Amendment claims").
129. Professor Reuel Schiller similarly characterizes Exparte Jackson as a First Amendment case and rightly refers to the Court's understanding of Congress's postal power as a type of "police power." Reuel E. Schiller, Free Speech and Expertise: Administrative Censorship and the Birth of the Modern First Amendment, 86 VA. L. REV. 1, 38-39 (2000).
130. Where I believe Professor Schiller errs is in characterizing Ex parte Jackson as a case in which "the constitutional law issue became an administrative matter, judged under the deferential rules of the expertise-driven, prescriptive administrative state." Id. at 40.
131. It may be that the standard the Court used to consider the constitutionality of the statute in Ex porte Jackson was deferential and thus comparable, at some level of abstraction, to the sort of review that courts use in reviewing administrative agency actions. However, as will become clear from my description of the case, the case was clearly reviewing a federal statute, not an agency action, and there is nothing in the case that suggests deference to the agency, i.e., the post office. Rather, the Court is deferring to Congress's policy choice, not to anything done by the Postmaster General or postal employees. I do agree with the thrust of Professor Schiller's claim that courts treated the post office as an administrative agency to which deference was appropriate in cases involving sensitive free speech issues before the New Deal. As I explain elsewhere, see Desai, supra note 12, at 711,
132. the Milwaukee Leader case, United States ex rel. Milwaukee Soc. Democrat Publ'g Co. v. Burleson, 255 U.S. 407 (1921), is a perfect example of the phenomenon Schiller describes, and I agree with his characterization of that case.
133. Schiller, supra, at 41-42. However, because Ex parte Jackson involved the constitutionality of an actual statute, rather than the act of any postal employee, it is far too much of a stretch to characterize Ex parte Jackson as a case with administrative law implications.
134. U.S. CONST, art. I, § 8, cl. 7;
135. see CHARLES FAIRMAN, 7 HISTORY OF THE SUPREME COURT OF THE UNITED STATES: RECONSTRUCTION AND REUNION, 1864-88, pt. 2, at 735 (1987) (referring to Ex parte Jackson as "an opinion on the postal power of Congress");
136. Howard Owen Hunter, Problems in Search of Principles: The First Amendment in the Supreme Court, 1791-1930, 35 EMORY L.J. 59, 76 (1986) (characterizing the case as one in which the "Court upheld the prohibition as a proper exercise of the postal power").
137. Ex parte Jackson, 96 U.S. at 729.
138. See also id. at 731 (reciting petitioner's argument that "[w]hatever else has been declared to be mailable matter . . . [since] the convention concluded its labors in 1787, may in the discretion of Congress be abolished").
139. Id. at 730, 733-35 ("Great reliance is placed by petitioner upon these views, coming, as they did in many instances, from men alike distinguished as jurists and statesmen."). For a discussion of the broader controversy,
140. see DOROTHY GANFIELD FOWLER, UNMAILABLE: CONGRESS AND THE POST OFFICE 26-33 (1977);
141. JOHN, supra note 57, at 257-80;
142. Michael Kent Curtis, The Curious History of Attempts to Suppress Antislavery Speech, Press, and Petition in 1835-37, 89 NW. U. L. REV. 785, 817-36 (1995);
143. Eberhard P. Deutsch, Freedom of the Press and of the Mails, 36 MICH. L. REV. 703, 717-23 (1938).
144. On the events that prompted the controversy, see Susan Wyly-Jones, The 1835 Anti-Abolition Meetings in the South: A New Look at the Controversy over the Abolition Postal Campaign, 47 CIV. WAR HIST. 289 (2001).
145. One scholar has argued that the abolitionists' postal campaign was an important catalyst in raising awareness in the North-indeed that it was intended effectively as an advertising campaign, not a conversion campaign-that was crucial in convincing many of the need for emancipation. See Bertram Wyatt-Brown, The Abolitionists ' Postal Campaign of 1835, 50 J. NEGRO HIST. 227, 229, 238 (1965).
146. See Curtis, supra note 68, at 823-36.
147. Andrew Jackson, Seventh Annual Message to Congress (Dec. 7, 1835), in 3 A COMPILATION OF THE MESSAGES AND PAPERS OF THE PRESIDENTS, 1789-1897, at 176 (James D. Richardson ed., Washington, Gov't Printing Office, 1896);
148. see also Curtis, supra note 68, at 824.
149. Curtis, supra note 68, at 824 ("[T]he problem was not whether legislation to suppress abolitionist publications would violate the right of Americans to free speech or free press. The problem was whether the federal government had any power at all to deal with the subject.").
150. U.S. CONST, art. I, § 8, cl. 7 (emphasis added).
151. CONG. GLOBE, 24th Cong., 1st Sess. app. 282 (1836) (statement of Sen. Morris). Though the argument has a superficial appeal, it makes no sense as a historical matter, and indeed didn't make sense even in 1836. As I explain elsewhere, the post office expanded profoundly in the years following Congress's initial "establishfment]" of it, at the behest of those early Congresses, many of whose members were involved in the drafting and ratification of the Constitution.
152. See Desai, supra note 12, at 702-03.
153. CONG. GLOBE, 24th Cong., 1st Sess. 165 (1836).
154. Curtis, supra note 68, at 825-26;
155. Richard R. John, Hiland Hall's "Report on Incendiary Publications ": A Forgotten Nineteenth Century Defense of the Constitutional Guarantee of the Freedom of the Press, 41 AM. J. LEGAL HIST. 94, 99-101 (1997) ("[F]rom Hall's standpoint, Calhoun's proposal differed little from Jackson's.");
156. see also FOWLER, supra note 68, at 31-33 (quoting Senator John Milton Niles as saying that "[t]he public mail, like the press, should be free, free as the air we breathe" and noting that Senator Daniel Webster made a speech analogizing circulation through the mail to a form of publishing).
157. Curtis, supra note 68, at 827-28.
158. Neither President Jackson's nor Senator Calhoun's proposal ever became law. In fact, in July 1836, Congress passed a comprehensive postal reorganization statute that included a provision specifically barring postmasters from interfering with the flow of mail in any way, either by refusing to deliver certain mail or by "giv[ing] a preference to [one piece of mail] over another." Act of July 2, 1836, § 32, 5 Stat. 80, 87 (1836). It seems unlikely that there was complete compliance with the law in the years immediately after its passage, but the law ended the controversy as a legal and constitutional matter.
159. See W. Sherman Savage, Abolitionist Literature in the Mails 1835-1836, 13 J. NEGRO HIST. 150, 183-84 (1965).
160. So too did the World War I Court use this form of argument when upholding a denial of subsidized postal rates to publications that the postmaster deemed subversive. See Desai, supra note 12, at 711.
161. Ex porte Jackson, 96 U.S. 727, 730-31 (1878) (emphasis added);
162. see also id. at 734 (citing Senator Calhoun's report on the antislavery pamphlets for conclusion "that Congress .. . may declare any road or navigable water to be a post road," which combined with the law preventing use of post-roads or "road[s] parallel to" post-roads to convey letters effectively amounted to a monopoly power).
163. I discuss the origins of the American postal monopoly in detail elsewhere. See Desai, supra note 12, at 696-99. The law at the time of Ex parte Jackson was, for all relevant purposes, unchanged from the 1792 Act.
164. See Act of March 3, 1825, ch. 64, § 19, 4 Stat. 102, 107 (1825);
165. see also RICHARD B. KIELBOWICZ, NEWS IN THE MAIL 34 (1989);
166. George L. Priest, The History of the Postal Monopoly in the United States, 18 J.L. & ECON. 33, 55 (1975).
167. Ex parte Jackson, 96 U.S. at 731.
168. In re Jackson, 13 F. Cas. 194, 196 (S.D.N.Y. 1877) (No. 7124).
169. Probably the decision's most memorable line was on this point: "Liberty of circulating is as essential to [the freedom of the press] as liberty of publishing; indeed, without the circulation, the publication would be of little value." 96 U.S. at 733. The line has been quoted numerous times, most famously by Chief Justice Hughes for the Court in Lovell v. City of Griffin, 303 U.S. 444, 452 (1938).
170. Ex parte parte Jackson, 96 U.S. at 732.
171. See Deutsch, supra note 68, at 732.
172. The only other medium for long-distance communication at the time was the telegraph, which I discuss below.
173. See generally ITHIEL DE SOLA POOL, TECHNOLOGIES OF FREEDOM 80-84 ( 1983).
174. Leach v. Carlile, 258 U.S. 138, 141 (1922) (Holmes, J., dissenting). By the time of the Leach case in 1922, Justice Holmes had of course become a hero to speech libertarians.
175. See G. EDWARD WHITE, JUSTICE OLIVER WENDELL HOLMES: LAW AND THE INNER SELF 436-37 (1993) ("In his post-Abrams free speech opinions Holmes regularly adopted speechprotective positions and thereby cemented his reputation among commentators as a libertarian on free speech issues."). More important, he had abandoned his views on what we today call "unconstitutional conditions" questions, declaring in effect that he viewed category three as unconstitutional as well because the theoretical availability of other means of circulation did not eliminate "the practical dependence of the public upon the post office."
176. Leach, 258 U.S. at 141;
177. see WHITE, supra, at 437-38;
178. G. Edward White, Justice Holmes and the Modernization of Free Speech Jurisprudence: The Human Dimension, 80 CAL. L. REV. 391, 443-44 (1992).
179. See generally Desai, supra note 12, at 713-14.
180. Exparte Jackson, 96 U.S. at 733.
181. Id.
182. See Thomas Y. Davies, Recovering the Original Fourth Amendment, 98 MICH. L. REV. 547, 613 n.174 (1999) (referring to this aspect of the case as dicta);
183. Donald Dripps, Akhil Amar on Criminal Procedure and Constitutional Law: "Here I Go Down That Wrong Road Again," 74 N.C. L. REV. 1559, 1600 (1996) (same);
184. Tracey Maclin, The Central Meaning of the Fourth Amendment, 35 WM. & MARY L. REV. 197, 240 n.153 (1993) (same).
185. See Ex parte Jackson, 96 U.S. at 733 ("Letters and sealed packages of this kind in the mail are as fully guarded from examination and inspection ... as if they were retained by the parties forwarding them in their own domiciles." (emphasis added)). Interestingly, forty years earlier, during the congressional debates surrounding the antislavery pamphlet prohibition proposal, letters in transit were characterized as the property of the recipient, not the sender.
186. See CONG. GLOBE, 24th Cong., 1st Sess., App. 282 (1836) (statement of Sen. Morris) (saying that when a letter is put in the mail, it is not the "property of him who deposited it," but is rather the "property of the person to whom it is directed");
187. see also JOHN, supra note 57, at 262 (noting that "preaddressed periodicals . . . were technically the property of the recipient").
188. TELFORD TAYLOR, TWO STUDIES IN CONSTITUTIONAL INTERPRETATION 76 (1969). To be fair, Professor Taylor was not purporting to have done an exhaustive survey of the question. Earlier in his discussion, he notes simply that "I have seen nothing to indicate that the matter of opening letters was adverted to at the time [that the Constitution vested plenary power over the post in the federal government]."
189. Id. at 75. As I explained above, the "matter of opening letters" was definitely "adverted to at the time," but all such references were made in the context of legislative debates about postal policy, not in the context of the drafting and ratification of the Fourth Amendment.
190. Compare, e.g., Akhil Reed Amar, Fourth Amendment First Principles, 107 HARV. L. REV. 757, 762-68, 772-81, 797-98 (1994) (setting forth the historical case that the core of the Fourth Amendment is a "reasonableness" requirement, not a warrant or probable cause requirement, and that the Fourth Amendment properly provides civil remedies sounding in "constitutional torts," not exclusion of evidence from criminal trials),
191. with Tracey Maclin, The Complexity of the Fourth Amendment: A Historical Review, 11 B.U. L. REV. 925 (1997) (rejecting Amar's view and asserting that the "warrant-preference" view is more consonant with the historical record).
192. See, e.g., Davies, supra note 91
193. (discussing NELSON B. LASSON, THE HISTORY AND DEVELOPMENT OF THE FOURTH AMENDMENT TO THE UNITED STATES CONSTITUTION (1937) and William John Cuddihy, The Fourth Amendment: Origins and Original Meaning, 602-1791 (1990) (unpublished Ph.D. dissertation, Claremont Graduate University) (on file with Robert Crown Law Library, Stanford University). Lasson's book is seminal, and Cuddihy's three-volume, 1560-page doctoral dissertation is comprehensive. In the main text, I use the phrase "the most prominent scholars" because the scholarship on the origins of the Fourth Amendment is so vast that I cannot possibly make a claim about all scholars. For a sampling of the literature,
194. see, for example, Morgan Cloud, Searching Through History; Searching for History, 63 U. CHI. L. REV. 1707, 1712-21 (1996)
195. (reviewing and summarizing the most exhaustive history of the origins of the Fourth Amendment ever written, Cuddihy, supra);
196. Davies, supra note 91 (arguing that framers were only concerned about prohibiting "general warrants"-those that failed to state with particularity the place to be searched or person to be seized and those that were unsupported by sufficient evidence-and had no concern with warrantless searches because officers' powers to search and arrest without a warrant were so limited compared with their powers today);
197. Maclin, supra note 91, at 201 (arguing that the framers' central concern was "distrust of police power and discretion");
198. David E. Steinberg, The Original Understanding of Unreasonable Searches and Seizures, 56 FLA. L. REV. 1051, 1053, 1061-82 (2004) (arguing "that the Fourth Amendment was intended to proscribe only a single, discrete activity-physical searches of houses pursuant to a general warrant, or no warrant at all"). Of course, letters in one's home were almost definitely viewed as "papers" for Fourth Amendment purposes and could thus have been within the original meaning of the Fourth Amendment.
199. Cf. Weeks v. United States, 232 U.S. 383 (1914) (holding that Fourth Amendment was violated when letters were among "papers" seized). In the text, I am referring solely to letters at the time that they are in transit through the postal system. The easiest way to see the importance of the distinction between the home and in transit through the post office is to compare a newspaper in one's home with a newspaper in the postal system. The former would have been protected by the Fourth Amendment, while the latter obviously would not have been because it was sent without any cover and was thus completely open to be read.
200. The first ten amendments to the Constitution were ratified in December 1791, and the 1792 Post Office Act was passed in February 1792. In some ways, the timing is even closer than the two-month period would suggest: the principal debates surrounding the 1792 Act took place in late December 1791.
201. See supra text accompanying note 61. Indeed, when Congress passed the first federal law prohibiting use of the mail for sending obscenity in 1865, Congress likely understood that the prohibition could not be enforced by opening sealed letters.
202. See CONG. GLOBE, 38th Cong., 2d Sess. 661 (1865). In 1888 (after Exparte Jackson), when the statute was amended, Congress made this point explicit.
203. See 25 Stat. 496, 497 (1888);
204. see also 19 CONG. REC 8189 (1888). This is more suggestive evidence that the Ex parte Jackson Court was simply transforming a statutory principle into constitutional law.
205. Two of today's leading scholars of privacy and new technologies, Professors Daniel Solove and Orin Kerr, have argued at great length about the relative roles of the legislature and the judiciary in protecting privacy. See, e.g., Orin S. Kerr, Congress, the Courts, and New Technologies: A Response to Professor Solove, 74 FORDHAM L. REV. 779 (2005);
206. Kerr, supra note 14, at 888 (arguing "that the judiciary-focused view overlooks the critical role that statutory privacy protections have played in protecting privacy in developing technologies");
207. Daniel J. Solove, Fourth Amendment Codification and Professor Kerr's Misguided Call for Judicial Deference, 74 FORDHAM L. REV. 747 (2005). However, seeing certain principles through an institutional lens allows one to view the role that the judiciary plays in light of decisions about institutions that the legislature makes. Doing so does not of course obviate the importance of that question, but it does allow for a role for courts to incorporate long-standing institutional policies about privacy into judicially created constitutional law.
208. Cf. Susan Freiwald, Uncertain Privacy: Communication Attributes After the Digital Telephony Act, 69 S. CAL. L. REV. 949, 953 n.12 (1996) (referring to postal communications as being "subject to their own unique set of constitutional and statutory provisions").
209. See DAVID J. SEIPP, THE RIGHT TO PRIVACY IN AMERICAN HISTORY 42 (1978) ("Telegraphic messages were not... placed on the same legal footing with the mails.").
210. Id. at 30. The War Department's regulation of the telegraph also included substantial censorship of news reporting.
211. See JAMES G. RANDALL, CONSTITUTIONAL PROBLEMS UNDER LINCOLN 482-83 (1926). To support my point about the differences between the post office and telegraph even further, it is worth noting that the way in which news correspondents and others circumvented the telegraph censorship was to send unauthorized news via the mail.
212. See id. at 483-84. Surprisingly, the two most recent books on constitutional and civil rights issues during Lincoln's presidency do not appear to address these issues, which we would today view as blatant censorship.
213. See DANIEL FARBER, LINCOLN'S CONSTITUTION (2003);
214. MARK E. NEELY, JR., THE FATE OF LIBERTY: ABRAHAM LINCOLN AND CIVIL LIBERTIES (1991).
215. SAMUEL DASH, THE INTRUDERS: UNREASONABLE SEARCHES AND SEIZURES FROM KING JOHN TO JOHN ASHCROFT 79 (2004).
216. See SEIPP, supra note 100, at 31. This was by no means the only time Congress used its subpoena power to do broad dragnet searches.
217. See DASH, supra note 102, at 79 (discussing an 1876 congressional inquiry into Washington, D.C. real estate dealings that resulted in Congress subpoenaing three quarters of a ton of telegrams).
218. See SEIPP, supra note 100, at 35.
219. Id. at 37.
220. Although Ex parte Jackson has often been cited as an 1877 case, even by some very fine scholars, see, e.g., DAVID M. RABBAN, FREE SPEECH IN ITS FORGOTTEN YEARS: 1870-1920, at 137 (1997), the Court in fact heard argument and issued its opinion in 1878.
221. SEIPP, supra note 100, at 37 ("One principle of central importance to the continuing debate was an analogy between telegraphic dispatches and letters in the post office.").
222. See, e.g., 18 U.S.C. § 2701 (2000).
223. SEIPP, supra note 100, at 41;
224. see also Daniel J. Solove, Reconstructing Electronic Surveillance Law, 72 GEO. WASH. L. REV. 1264, 1270-71 (2004).
225. See PAUL STARR, THE CREATION OF THE MEDIA: POLITICAL ORIGINS OF MODERN COMMUNICATIONS 394 (2004).
226. See, e.g., Ex porte Brown, 72 Mo. 83 (1880), 1880 WL 4234, at *3 (Mo.), 1880 Mo. LEXIS 159, at **7 ("It would be an anomaly, indeed," argued a state attorney general who sought to force the disclosure of telegrams, "if a private corporation could make a rule which, in terms, nullifies process issued by a court of justice; and when the law demands and calls for certain evidence, a telegraph company can defeat that demand by a rule enacted by itself.");
227. Ex parte Brown, 7 Mo. App. 484, 490 (Ct. App. 1879) ("By what authority can it be assumed that a private person or company, engaged in the business of telegraphy, stands in relation to the State governments as does the Federal government when acting under express laws?").
228. To the extent that a textualist might note that a letter was tangible and thus could be characterized as a "paper[]" within the meaning of the Fourth Amendment, it is worth noting that telegrams were "papers" as well, since they were transcribed on paper at each node along the route and-most importantly-consisted of paper at the recipient's end as well. See also infra note 119.
229. Quoted in SEIPP, supra note 100, at 40.
230. See also infra note 130.
231. 7 W.Va. 544 (1874).
232. Id. at 546-47.
233. Id. at 547.
234. 7 Mo. App. 484, 489-93 (Ct. App. 1879).
235. Id. at 489-90 (emphasis added). This is of course exactly what the United States Supreme Court held with respect to telephone conversations nearly fifty years later.
236. See Olmstead v. United States, 277 U.S. 438, 464 (1928);
237. cf. Katz v. United States, 389 U.S. 347, 364-67 (1967) (Black, J., dissenting). With a telegram, it should have been much easier to refute this textual argument, since what the subpoenas sought were of course not abstract "original telegrams," but instead pieces of paper that recorded the telegraphic messages.
238. See supra note 112.
239. Exparte Brown, 7 Mo. App. at 490.
240. Id.
241. Id. at 490-91.
242. Id. at 491 (emphasis added). Further support for the court's conclusion that telegrams were not consistently viewed as inviolable was the fact that the use of code in telegrams was widespread.
243. See TOM STANDAGE, THE VICTORIAN INTERNET: THE REMARKABLE STORY OF THE TELEGRAPH AND THE NINETEENTH CENTURY'S ON-LINE PIONEERS 111-18 (1998).
244. Terry v. Ohio, 392 U.S. 1, 9 (1968) (quoting Katz, 398 U.S. at 361 (Harlan, J., concurring)).
245. See generally WAYNE R. LAFAVE, SEARCH AND SEIZURE: A TREATISE ON THE FOURTH AMENDMENT § 2.1 (4th ed. 2004).
246. Morgan Cloud, Pragmatism, Positivism, and Principles in Fourth Amendment Theory, 41 UCLA L. REV. 199, 249 (1993);
247. cf. Orin S. Kerr, Four Models of Fourth Amendment Protection, 60 STAN. L. REV. 503 (2007) (arguing that the "reasonable expectation of privacy" test is in fact an amalgam of four different coexisting approaches to defining the contours of the Fourth Amendment).
248. 398 U.S. at 361.
249. 401 U.S. 745, 786 (1971) (Harlan, J., dissenting).
250. See, e.g., LAFAVE, supra note 124, § 2.1(d), at 441
251. (quoting Steven C. Douse, Note, 77¡e Concept of Privacy and the Fourth Amendment, 6 U. MICH. J.L. REFORM 154, 179-80 (1972)).
252. See Ex porte Brown, 72 Mo. 83, 91-92 (1880).
253. See, e.g., In re Storror, 63 F. 564, 565-67 (N.D. Cal. 1894);
254. Woods v. Frank Miller & Co. 7 N.W. 484, 484-85 (Iowa 1880).
255. See Storror, 63 F. at 567
256. (citing JOHN ORDRONAUX, CONSTITUTIONAL LEGISLATION IN THE UNITED STATES 246-49 (Philadelphia, T. & J.W. Johnson, 1891)).
257. See Act of Oct. 29, 1918, § 1, 40 Stat. 1017, 1017-18;
258. see also SEIPP, supra note 100, at 65.
259. See SEIPP, supra note 100, at 65;
260. Margaret Lybolt Rosenzweig, The Law of Wire Tapping, 32 CORNELL L.Q. 514, 527 n.111 (1947).
261. See Communications Act of 1934, Pub. L. No. 416, § 605, 48 Stat. 1064, 1103.
262. See generally Rosenzweig, supra note 133, at 532-55.
263. Although I have not canvassed all of nineteenth-century Fourth Amendment jurisprudence, Fourth Amendment scholars who have done so invariably list Ex parte Jackson as among the first significant Fourth Amendment cases in the United States Supreme Court-if not the first. See, e.g., Note, Formalism, Legal Realism, and Constitutionally Protected Privacy Under the Fourth and Fifth Amendments, 90 HARV. L. REV. 945, 952 n.42 (1977) (referring to Ex parte Jackson as the first case "to comment at any length on the fourth amendment");
264. cf. Kerr, supra note 14, at 842 & n.234 (citing Ex parte Jackson as among the Court's first Fourth Amendment cases). But many scholars ignore Ex parte Jackson altogether, concluding that the Court's decision in Boyd v. United States, 116 U.S. 616 (1886), nine years later was the first Fourth Amendment case.
265. See, e.g., Steinberg, supra note 95, at 1071 ("The United States Supreme Court did not issue its first Fourth Amendment opinion until 1886, with its decision in Boyd v. United States"). The fact that Justice Field did not cite to a single authority lends some mild support to this view.
266. See Desai, supra note 12.
267. In the First Amendment context, there is a rich literature about the relationship between institutions and constitutional law. See Paul Horwitz, Universities as First Amendment Institutions: Some Easy Answers and Hard Questions, 54 UCLA L. REV. 1497, 1503 n.26 (2007) (listing some citations). However, that literature-spawned by a 1998 piece written by Professor Frederick Schauer,
268. see Frederick Schauer, The Supreme Court, 1997 Term-Comment: Principles, Institutions, and the First Amendment,112 HARV. L. REV. 84 (1998)-has largely been normative.
269. KEITH E. WHITTINGTON, CONSTITUTIONAL CONSTRUCTION: DIVIDED POWERS AND CONSTITUTIONAL MEANING (1999).
270. Ernest A. Young, The Constitution Outside the Constitution, 117 YALE L.J. (forthcoming 2007), available at http://www.ssrn.com/ abstract=965865.
271. See DAVID P. CURRIE, THE CONSTITUTION IN CONGRESS: DEMOCRATS AND WHIGS, 1829-1861 (2005);
272. DAVID P. CURRIE, THE CONSTITUTION IN CONGRESS: DESCENT INTO THE MAELSTROM, 1829-1861 (2006);
273. DAVID P. CURRIE, THE CONSTITUTION IN CONGRESS: THE FEDERALIST PERIOD, 1789-1801 (1997);
274. DAVID P. CURRIE, THE CONSTITUTION IN CONGRESS: THE JEFFERSONIANS, 1801-1829 (2001);
275. see also Kent Greenfield, Original Penumbras: Constitutional Interpretation in the First Year of Congress, 26 CONN. L. REV. 79 (1993). The mere fact of this series of books evidences a broader interest in and awareness of the role of Congress in shaping the Constitution. The urge to shake the legal academy from its jurocentric perch is, however, nothing new. Karl Llewellyn famously mocked constitutional law scholars for ignoring the "extra-documentary" aspects of the Constitution during Franklin Roosevelt's first term.
276. K.N. Llewellyn, The Constitution as an Institution, 34 COLUM. L. REV. 1, 15 (1934). And Llewellyn saw himself as simply repackaging for his 1930s audience what Arthur Bentley, a prominent journalist and political theorist, had said twenty-five years earlier.
277. See id. at 1 n. 1. A historian might well find the same lament about law professors even further back.
278. Cf. Jack M. Balkin & Sanford Levinson, The Processes of Constitutional Change: From Partisan Entrenchment to the National Surveillance State, 75 FORDHAM L. REV. 489, 489-97 (2006) (noting that their theory of "partisan entrenchment is primarily a theory about how change occurs in constitutional doctrine," but recognizing "that such changes can and do occur throughout a variety of government institutions").
279. Jack Balkin and Sanford Levinson have argued that constitutional doctrine cannot be understood without an understanding of the ways in which political parties use judicial appointments to further political goals-"partisan entrenchment," they call it. Jack M. Balkin & Sanford Levinson, Understanding the Constitutional Revolution, 87 VA. L. REV. 1045, 1066-83 (2001);
280. see also Balkin & Levinson, supra note 141. One might think of my goal here as similar in type, if not ambition: an attempt to probe a particular aspect of the actions of extrajudicial actors in order better to understand constitutional doctrine.
281. See supra text accompanying note 12.
282. LARRY D. KRAMER, THE PEOPLE THEMSELVES: POPULAR CONSTITUTIONALISM AND JUDICIAL REVIEW (2004);
283. MARK TUSHNET, TAKING THE CONSTITUTION AWAY FROM THE COURTS (1999);
284. William N. Eskridge, Jr. & John Ferejohn, Super-Statutes, 50 DUKE L.J. 1215 (2001);
285. see also Barry Friedman, The Birth of an Academic Obsession: The History of the Countermajoritarian Difficulty, Part Five, 112 YALE L.J. 153, 155 (2002) ("Fed up with the activism of the Rehnquist Court, academics are coming to see the central obsession of constitutional theory in an entirely new light. Before, the central obsession was the inconsistency between judicial review and democracy. Now, it is the inconsistency between judicial review and democracy.");
286. cf. Robert Post & Reva Siegel, Roe Rage: Democratic Constitutionalism and Backlash, 42 HARV. C.R.-C.L. L. REV. 373, 406 (2007) ("No doubt this [shift towards constitutional scholarship that cautions judges to interpret the Constitution so as to avoid controversy] reflects a fear of right-wing activism by new conservative appointees to the federal judiciary.").
287. See, e.g., GERALD N. ROSENBERG, THE HOLLOW HOPE: CAN COURTS BRING ABOUT SOCIAL CHANGE? (1991).
288. The phrase is of course Alexander Bickel's. See ALEXANDER M. BICKEL, THE LEAST DANGEROUS BRANCH: THE SUPREME COURT AT THE BAR OF POLITICS (2d ed. 1986);
289. see also JOHN HART ELY, DEMOCRACY AND DISTRUST: A THEORY OF JUDICIAL REVIEW (1980);
290. Friedman, supra note 144, at 156 (attempting to historicize the problem of judicial review itself "so that we can see that the countermajoritarian difficulty that obsesses the legal academy is not some timeless problem grounded in immutable truths");
291. Barry Friedman, The History of the Countermajoritarian Difficulty, Part Four: Law's Politics, 148 U. PA. L. REV. 971 (2000);
292. Barry Friedman, The History of the Countermajoritarian Difficulty, Part One: The Road to Judicial Supremacy, 73 N.Y.U. L. REV. 333, 334 n.1 (1998) [hereinafter Friedman, Part One];
293. Barry Friedman, The History of the Countermajoritarian Difficulty, Part Three: The Lesson of Lochner, 76 N.Y.U. L. REV. 1383 (2001);
294. Barry Friedman, The History of the Countermajoritarian Difficulty, Part II: Reconstruction's Political Court, 91 GEO. L.J. 1 (2002).
295. See generally Symposium, The Counter-Majoritarian Difficulty, 95 NW. U. L. REV 843 (2001).
296. See Barry Friedman, The Birth of an Academic Obsession: The History of the Countermajoritarian Difficulty, Part Five, 112 YALE L.J. 153, 163 & n.27 (2002) (noting that constitutional law theorists "cannot stop talking about the countermajoritarian difficulty" and collecting citations to this effect);
297. see also Barry Friedman, The Counter-Majoritarian Problem and the Pathology of Constitutional Scholarship, 95 NW. U. L. REV. 933, 933 (2001) ("It seems that among some legal academics the counter-majoritarian problem simply will not go away.");
298. Friedman, Part One, supra note 146, at 334 n.1 (1998) (noting that the fixation with the countermajoritarian difficulty among constitutional law scholars "is so great the proposition hardly requires citation").
299. Compare Kerr, supra note 14, at 806 (arguing for "legislative predominance" with respect to the drafting of rules related to privacy in the face of technological change),
300. with Daniel J. Solove, Fourth Amendment Codification and Professor Kerr's Misguided Call for Judicial Deference, 74 FORDHAM L. REV. 747 (2005).
301. The seminal work in legal scholarship analyzing the institutional competences of the courts and legislature was in part a response to work that attempted to justify searching judicial review of legislation based on the insights of "public choice" theory. See NEIL K. KOMESAR, IMPERFECT ALTERNATIVES: CHOOSING INSTITUTIONS IN LAW, ECONOMICS, AND PUBLIC POLICY (1994) (articulating a participation-centered approach to analyzing the legislature, courts, and the market comparatively to understand which institution should decide a particular policy question);
302. Einer R. Elhauge, Does Interest Group Theory Justify More Intrusive Judicial Review?, 101 YALE L.J. 31 (1991) (arguing that courts suffer from some of the same interest group defects as legislatures);
303. see also Thomas W. Merrill, Does Public Choice Theory Justify Judicial Activism After All?, 21 HARV. J.L. & PUB. POL'Y 219 (1997) (noting that the costs to participate in the courts are far lower than the costs to participate in the U.S. Congress, thereby permitting "poorer" interest groups to participate, and arguing that there may thus be a narrow range of controversies where the dynamics of interest group influence may be neutralized in the courts but not in Congress).
304. This sense of conflict is rife in constitutional law scholarship. Indeed, even as sophisticated a theorist as Professor Adrian Vermeule will assume a vision of constitutional law as one in which a court that invalidates a piece of legislation does so in opposition to the legislature. See Adrian Vermeule, Common Law Constitutionalism and the Limits of Reason, 107 COLUM. L. REV. 1482, 1484 (2007) (explaining why constitutional law adjudication differs from common law adjudication and asserting that "[t]he alternative to relying on precedent or tradition, in constitutional law, is never reliance on the unaided reason of the single judge; the alternative is reliance on the latent wisdom of collective legislatures, or of the executive branch, or of a group of constitutional framers").
305. I want to be clear that, by "entrenchment," I simply mean a process of binding subsequent legislatures by effectively making certain lawmaking choices more difficult in the future. I do not mean to imply what is often presumed when using the term, that such entrenchment constitutes the means by which the polity "precommits" itself to certain constraints, a form of self-binding analogous to Ulysses tying himself to the mast. See generally JON ELSTER, ULYSSES AND THE SIRENS: STUDIES IN RATIONALITY AND IRRATIONALITY 94 (1979);
306. JON ELSTER, ULYSSES UNBOUND: STUDIES IN RATIONALITY, PRECOMMITMENT, AND CONSTRAINTS 167 (2000) [hereinafter ELSTER, ULYSSES UNBOUND] ("In Ulysses and the Sirens I came close to claiming . . . that constitutions are precommitment devices (in the intentional sense) . . . .");
307. Samuel Freeman, Constitutional Democracy and the Legitimacy of Judicial Review, 9 LAW & PHIL. 327, 327 (1990) (defending judicial review based on the premise that sovereign citizens choose judicial review when "exercising their constituent power at the level of constitutional choice," thereby engaging in a "shared precommitment . . . to maintaining their equal status in the exercise of their political rights in ordinary legislative procedures"). Thinking of constitutional entrenchment as a sovereign precommitting itself dates far back.
308. See BARUCH SPINOZA, TRACTATUS THEOLOGICO-POLITICUS VII. 1, quoted in ELSTER, ULYSSES UNBOUND, supra, at 88-89 (noting that kings who instruct their judges to treat all persons, even the king, as equals under the law "have followed the example of Ulysses"). Serious criticisms have been leveled at this conception of constitutional entrenchment.
309. See ELSTER, ULYSSES UNBOUND, supra, at 88-174 (criticizing his own former view that constitutions serve as precommitment devices);
310. JEREMY WALDRON, LAW AND DISAGREEMENT 255-81 (1999) [hereinafter WALDRON, LAW AND DISAGREEMENT];
311. Jeremy Waldron, Precommitment and Disagreement, in CONSTITUTIONALISM: PHILOSOPHICAL FOUNDATIONS 271 (Larry Alexander ed., 1998). Those criticisms have been at times biting.
312. See WALDRON, LAW AND DISAGREEMENT, supra, at 268 ("My theme in all this is reasonable disagreement, but I cannot restrain myself from saying that anyone who thinks [the process of judicial review in the United States] is appropriately modeled by the story of Ulysses and the sirens is an idiot."). Nor do I use the term "entrenchment" to imply absolute entrenchment.
313. See, e.g., Grundgesetz für die Bundesrepublik Deutschland [GG] [Basic Law] May 23, 1949, art. 79 (3) (preventing amendment of the "basic principles of state order" as well as the basic premise that the purpose of the state is to protect human dignity). Professor Julian Eule classified three different types of entrenchment: (1) "procedural entrenchment," which "prescribe[s] the 'manner and form' by which the promulgated directives can be changed"; (2) "transitory entrenchment," which "seeks to prevent alteration for a specified period of time only"; and (3) "preconditional entrenchment," which "purports to permit change only on the occurrence of a preordained event."
314. Julian N. Eule, Temporal Limits on the Legislative Mandate: Entrenchment and Retroactivity, 12 AM. B. FOUND. RES. J. 379, 384-85 (1987). Using Eule's taxonomy, my example would be closest to what he calls "procedural entrenchment." The key is that because the institutional embeddedness shapes judicial doctrine, the entrenchment is comparable to the entrenchment of a Supreme Court decision.
315. Cf Michael J. Gerhardt, Super Precedent, 90 MINN. L. REV. 1204, 1213-14 (2006) (describing Legal Tender Cases as an example of a foundational doctrine that becomes entrenched and thereby becomes a super precedent).
316. Effectively, what this amounts to is a form of legislative entrenchment, and the prohibition on legislative entrenchment is of course longstanding. Indeed, that prohibition has been hotly debated by constitutional theorists in recent years. Compare Eric A. Posner & Adrian Vermeule, Legislative Entrenchment: A Reappraisal, 111 YALE L.J. 1665 (2002),
317. with John C. Roberts & Erwin Chemerinsky, Entrenchment of Ordinary Legislation: A Reply to Professors Posner and Vermeule, 91 CAL. L. REV. 1773 (2003),
318. and Stewart E. Sterk, Retrenchment on Entrenchment, 71 GEO. WASH. L. REV. 231 (2003).
319. Charles Black once referred to the principle that one legislature cannot bind a future one as being both "familiar and fundamental" and "so obvious as rarely to be stated." Charles L. Black, Jr., Amending the Constitution: A Letter to a Congressman, 82 YALE L.J. 189, 191 (1972);
320. cf. THOMAS HOBBES, LEVIATHAN 184 (Richard Tuck ed., Cambridge Univ. Press 1996) (1651) ("For having power to make, and repeale Lawes, [the Sovereign] may when he pleaseth, free himselfe from that subjection, by repealing those Lawes that trouble him, and making of new."). My claim is simply that incorporating principles into an institution can in effect entrench those principles. Moreover, not only did the Court not stop this legislative entrenchment, but its incorporation of the concept of postal privacy into the fabric of constitutional doctrine effectively abetted the entrenchment. Professor Eule implicitly recognized this notion of legislative entrenchment twenty years ago when he noted that "all legislation has some entrenching impact."
321. See Eule, supra note 151, at 387 n.26.
322. Indeed, we still have debates about the meaning of Berger and Katz and, for example, the appropriateness of the "reasonable expectation of privacy" test in the context of communications privacy. See Susan Freiwald, First Principles of Communications Privacy, 2007 STAN. TECH. L. REV. 3. To my knowledge, however, no one has argued that Ex parte Jackson and the entire edifice of constitutional doctrine built upon it should be undone.
323. Cf. Balkin & Levinson, supra note 141, at 501 ("[N]ew constitutional developments often do not begin with the courts-rather, Congress and the presidency build new constitutional institutions, and the courts eventually rationalize them.").
324. Robert C. Post, The Supreme Court, 2002 Term-Foreword: Fashioning the Legal Constitution: Culture, Courts, and Law, 117 HARV. L. REV. 4, 8 (2003);
325. see also id. at 41 ("Constitutional culture comes in many forms, ranging from the convictions of ordinary citizens about the meaning of their Constitution to the considered constitutional interpretations of those authorized to make law based upon these interpretations.").
326. Id. at 56;
327. see also id. at 80 (describing United States v. American Library Ass 'n, 539 U.S. 194 (2003), and noting that "the fulfillment of the constitutional value of freedom of speech does not turn on legal material alone, but also on cultural meanings that the Court can discern only by drawing upon its knowledge as a literate participant in American culture").
328. William N. Eskridge, Jr. & John Ferejohn, Super-Statutes: The New American Constitutionalism, in THE LEAST EXAMINED BRANCH: THE ROLE OF LEGISLATURES IN THE CONSTITUTIONAL STATE 320 (Richard W. Bauman & Tsvi Kahana eds., 2006).
329. See generally Eskridge & Ferejohn, supra note 144.
330. Eskridge & Ferejohn, supra note 144, at 1275.
331. Eskridge & Ferejohn, supra note 158, at 321.
332. Id. at 333.
333. Id. at 321.
334. Id. at 338.
335. The original provision remains largely intact in federal law today. See 18 U.S.C. § 1702 (2000); .
336. see also 18 U.S.C. § 1703(a) (2000). Since Ex parte Jackson, Congress has codified the principle that a warrant is required for mail opening.
337. See 39 U.S.C. § 404(c) (2000). I say "codified the principle" because the statutory restriction is not identical to the Fourth Amendment.
338. See Desai, supra note 58.
339. Just to be clear, I am not making a strong claim about "path dependency," nor am I using the term to connect my argument with those scholars associated with the school of "historical institutionalism." See, e.g., Paul Pierson & Theda Skocpol, Historical lnstitutionalism in Contemporary Political Science, in POLITICAL SCIENCE: THE STATE OF THE DISCIPLINE 693-721 (Ira Katznelson & Helen V. Milner eds., 2002);
340. Theda Skocpol, Why I Am an Historical Institutionalist, 28 POLITY 103 (1995);
341. see also Oona Hathaway, Path Dependence in the Law: The Course and Pattern of Legal Change in a Common Law System, 86 IOWA L. REV. 601, 604 (2001);
342. cf. Michael J. Gerhardt, The Limited Path Dependency of Precedent, 7 U. PA. J. CONST. L. 903, 989-95 (2005) (discussing the application of theories of "historical institutionalism" to understanding the Court's use of precedent). If anything, I am making a variation of the weak-and often maligned by social scientists as inconsequential-claim that "history matters."
343. See, e.g., PAUL PIERSON, POLITICS IN TIME: HISTORY, INSTITUTIONS, AND SOCIAL ANALYSIS 2 (2004);
344. Balkin & Levinson, supra note 141, at 531 (equating "path dependency" with the idea that "[c]ertain choices once made, change political realities in ways that are often difficult to undo without enormous cost");
345. Adrian Vermeule, Constitutional Amendments and the Constitutional Common Law, in THE LEAST EXAMINED BRANCH, supra note 158, at 229, 264 (describing "path dependency" as the notion "that the order in which decisions arise is an important constraint on the decisions that may be made"). I premise my argument here on the very basic claim that, as Professor Robert Post has put it, "[a]n account of constitutional law that must suppress the historical processes by which constitutional law comes into being cannot be adequate."
346. Post, supra note 156, at 109.
347. Of course, by "political forces," I mean only "the climate of the era," not the "temperature of the day." See Ruth Bader Ginsburg, Constitutional Adjudication in the United States as a Means of Advancing the Equal Stature of Men and Women Under the Law, 26 HOFSTRA L. REV. 263, 268 (1997) ("Judges ... are affected, not by the weather of the day, as distinguished Constitutional Law Professor Paul Freund once said, but by the climate of the era.").
348. FINLEY PETER DUNNE, MR. DOOLEY'S OPINIONS 26 (1901),
349. quoted in Steven G. Calabresi, The President, the Supreme Court, and the Founding Fathers: A Reply to Professor Ackerman, 73 U. CHI. L. REV. 469, 478 n.42 (2006);
350. Finley Peter Dunne, The Supreme Court's Decisions, in MR. DOOLEY ON THE CHOICE OF LAW 47, 52 (Edward J. Bander ed., 1963);
351. see also Robert A. Dahl, Decision-Making in a Democracy: The Supreme Court as a National Policy-Maker, 6 J. PUB. L. 279, 285 (1957) ("[T]he policy views dominant on the Court are never for long out of line with the policy views dominant among the lawmaking majorities of the United States.").
352. But see Jonathan D. Caspar, The Supreme Court and National Policy Making, 70 AM. POL. SCI. REV. 50, 50 ( 1976) (arguing that "Court participates more significantly in national policy making than Dahl's argument suggests"). Richard Funston once referred to this thesis as the "Dahl-Dooley" thesis.
353. See Richard Funston, The Supreme Court and Critical Elections, 69 AM. POL. SCI. REV. 795, 795 (1975).
354. For attempts at an empirical assessment of the basic thesis, see THOMAS R. MARSHALL, PUBLIC OPINION AND THE SUPREME COURT 68-103 (1989) (concluding based on an empirical study that the Supreme Court is largely a majoritarian institution, i.e., that
355. Thomas R. Marshall, American Public Opinion and the Rehnquist Court, 89 JUDICATURE 177 (2005) (reporting an empirical study and concluding that the Rehnquist Court's decisions track public opinion, except in First Amendment cases);
356. Thomas Marshall, Public Opinion and the Supreme Court: The Insulated Court?, in UNDERSTANDING PUBLIC OPINION 269 (Barbara Norrander & Clyde Wilcox eds., 1997) (conducting a similar empirical analysis covering the first six Terms of the Rehnquist Court and reaching substantially the same conclusions);
357. William Mishler & Reginald S. Sheehan, The Supreme Court as a Countermajoritarian Institution? The Impact of Public Opinion on Supreme Court Decisions, 87 AM. POL. SCI. REV. 87 (1993);
358. cf. Michael W. Link, Tracking Public Mood in the Supreme Court: Cross-Time Analysis of Criminal Procedure and Civil Rights Cases, 48 POL. RES. Q. 61, 61 (1995) (analyzing impact of both elite opinion and public opinion on the Court's decisions and concluding that the Court "follow[s] changes in the dominant political alliance more readily in some issue areas than it does in others").
359. Llewellyn's point - reiterated most recently by Professor Young, see supra text accompanying note 139 - is that the Constitution is not simply the "Document," but rather includes "the working Constitutionf, which] embraces the interlocking ways and attitudes of different groups and classes in the community-different ways and attitudes of different groups and classes, but all cogging together into a fairly well organized whole." Llewellyn, supra note 140, at 18.1 am thus obviously playing fast and loose with Llewellyn's use of the term "institution" since I am using it in a somewhat different sense.
360. See, e.g., RONALD DWORKIN, LAW'S EMPIRE (1986).