Academic journal article Washington and Lee Law Review

Dangerous Dicta

Academic journal article Washington and Lee Law Review

Dangerous Dicta

Article excerpt

I. Introduction

In District of Columbia v. Heller,l the Court held that individuals have a Second Amendment right to keep and bear arms apart from their associations with state militias.2 Although that holding was and remains controversial, less attention has been paid to what the Heller Court had to say about the Fourth Amendment, which provides that:

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.3

Writing for the Court in Heller, Justice Scalia asserts that the phrase "right of the people" in the Fourth Amendment "unambiguously refers to individual rights, not 'collective' rights or rights that may only be exercised through participation in some corporate body."4 The Court admits that "[i]f we look to other founding-era documents, we find that some state constitutions used the term 'the people' to refer to the people collectively, in contrast to 'citizen,' which was used to invoke individual rights."5 It nevertheless maintains "that usage was not remotely uniform. . . . And, most importantly, it was clearly not the terminology used in the Federal Constitution, given the First, Fourth, and Ninth Amendments."6

By any definition, the Heller Court's musings about the meaning of the Fourth Amendment are dicta.7 The question before the Court in Heller had only to do with the meaning and application of the Second Amendment. There were no Fourth Amendment questions presented and the facts did not implicate any Fourth Amendment issues. Not only were the Court's comments about the Fourth Amendment in Heller dicta, they were irresponsible dicta. The Court neither asked for nor received briefing on the meaning of "the right of the people" in the Fourth Amendment. The Court certainly did not offer evidence in support of its reading of the Fourth Amendment or consider in any material way contrary evidence or the potential consequences of its interpretation. It resorted instead to the easy rhetoric of clarity. Thus, the Court's broad claims about the Fourth Amendment in Heller exhibit more than just a lack of judicial restraint, they display a disturbingly casual association with basic rules of textual interpretation and legal argument.

This is a shame, particularly coming through the pen of the Court's leading textualist.8 It is also dangerous. That is because the security of the people guaranteed by the Fourth Amendment presently is imperiled by the rapidly expanding surveillance capacities of governments and their agents.9 Meeting challenges to security and privacy posed by these technologies will require a sustained investment in constitutional remedies capable of reclaiming and preserving that security.10 As Justice Scalia recently pointed out, although "dicta, even calculated dicta, are nothing but dicta," "[d]icta on legal points . . . can do harm, because though they are not binding they can mislead."11 This is certainly true of the Heller Court's reading of the Fourth Amendment, which threatens the ability of courts to fashion and enforce those remedies, leaving each of us and all of us more vulnerable to the kind of broad and indiscriminate surveillance that is anathema to the Fourth Amendment.12

This Essay takes on the Court's dangerous dicta in Heller. It does so on textualist grounds. By applying well-established canons of interpretation, and considering historical evidence, it argues that rights secured by the Fourth Amendment are fundamentally collective rather than individual.13 This does not mean that individuals cannot seek Fourth Amendment protections or raise Fourth Amendment claims. Any right of the people must in some way devolve to protections for persons, after all. Rather, the point is that the Fourth Amendment targets search and seizure methods and practices, which, if left to the unfettered discretion of government agents, would leave all of us and each of us insecure in our persons, houses, papers, and effects. …

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