Few scholars are considered more influential when it comes to the Fourth Amendment than George Washington Lawprof, and Volokh conspirator, Orin Kerr.  His latest article, just out in the Harvard Law Review, offers a novel, and quite remarkable, approach: An Equilibrium-Adjustment Theory of the Fourth Amendment.

While existing doctrine is complex and fact-specific, it is not at all a “mess.” Rather, it is the product of hundreds of equilibrium-adjustments made over time. Those  adjustments were usually made intuitively in response to felt necessities, but in rare cases were made out of a conscious recognition of the need for changes to keep the law in balance in the face of new practices and technological change.

Putting aside the personal anguish of not being cited for the proposition that existing doctrine is a mess (and missing perhaps my one and only chance of seeing my name in the Harvard Law Review), this assertion raises a very different view of the law, one that demands serious consideration.

Orin explains the theory by crafting a theoretical Year One, where neither cop nor criminal has any tool to enhance either the intrusion into, or the escape from, law enforcement scrutiny.  This establishes the balance that everything afterward adjusts to maintain.  Of course, from that theoretical moment in time, everything changes, develops, shifts, moves and alters the equilibrium.  The external pressures that affect the balance between cop and criminal are in constant motion.

As societal values change, so must legal rules. In contrast, equilibrium-adjustment always plays defense. It attempts to restore the status quo ante, not serve as an instrument of change.

So while technology changes, allowing (for example) criminals to hide liquor in the trunks of cars while speeding away from the revenuers, the law adjusts to maintain the balance that existed when the criminals were limited to riding around in open buggies.

To some extent, this may be the most cynical theory of the development of search and seizure law ever proposed, that the many decisions that appear to suggest there is a doctrine upon which society, and its lawyers, can rely, is really nothing more than a rationalization for maintaining balance.

While lawyers parse the words, argue the tests, ponder the continued viability of such doctrines at Katz’s “reasonable expectation of privacy,” the law is little more than maintaining the status quo in the never-ending fight between law enforcement’s efforts to maintain order and criminals efforts to thwart it.  All the words in between exist only to give the appearance of rationality or doctrinal adherence, rather than state the true purpose, to keep the two sides in check.

Frankly, Orin’s theory makes enormous sense in trying to explain the unexplainable.  Fourth Amendment law is, if one attempts to fit it into a logical construct, a disaster.  A general rule, roundly ignored, broken up by a multitude of always changing exceptions, often so wholly divorced from their initial rationale as reduce any attempt to make sense of it a farce.  It’s not easy to come up with faux rationales to justify an outcome that is based on nothing more than maintaining the balance of power.  As a method of explanation, it seems that Orin may well be onto something, as reflected in this exchange from City of Ontario v. Quon :

“Rapid changes in the dynamics of communication and information transmission,” Justice Kennedy continued, “are evident not just in the technology itself but in what society accepts as proper behavior.” Given the uncertainty, “[p]rudence counsels caution before the facts in the instant case are used to establish far-reaching premises.”

In a concurring opinion, Justice Scalia scoffed at the idea of proceeding cautiously:

Applying the Fourth Amendment to new technologies may sometimes be difficult, but when it is necessary to decide a case we have no choice. The Court’s implication that where electronic privacy is concerned we should decide less than we otherwise would (that is, less than the principle of law necessary to resolve the case and guide private action) — or that we should hedge our bets by concocting case-specific standards or issuing opaque opinions — is in my view indefensible. The-times-they-are-achangin’ is a feeble excuse for disregard of duty.

But the article doesn’t stop at the point of explaining, but rather goes forward to argue that this explanation, equilibrium-adjustment, provides a sound basis for the future of search and seizure law.  This defense of the theory isn’t as easily swallowed.

It strikes me that there are two massive flaws with this balancing act as a basis for law: First, the relative balance isn’t between cop and criminal, but cop and citizen. We tend to forget, because there’s little reason to hear about all the unreasonable intrusions into the personal privacy realm of law-abiding, ordinary citizens who aren’t engaged in any wrong-doing whatsoever, that the Fourth Amendment protects all of us, even the good guys, from police over-reaching.

So criminals use telephones to conceal their conspiratorial chatter from the cops, and the cops in return use pen registers to know who the criminals are talking to.  Balance. But when those pen registers are used on my phone, and I’m not conspiring with anyone, the balance is shot to hell.  Why are my rights to privacy subject to balance based on what criminals do?  What role does the rights of the non-criminal play in the balancing of law enforcement intrusions?  None under this theory.

As the law has long acknowledged, the rights of citizens are vindicated through criminals, since warrantless search, ransacked house, results in no arrest, nothing happens. We’re left to wonder how many innocent people are put up against a wall to be seized and searched, and then sent on their way with no one to challenge the excesses of the police and violations of their rights.

Of course, there are some clues as to how often this happens, and how bad this problem can be, from the statistics developed by the New York City Stop and Frisk program, where cops are seizing and searching 600,000 people a year, only 5% of whom produce anything illegal.  What of the rights of the rest? Is this balance?

Assuming that equilibrium was a viable goal to be achieved, then the balancing act should be between cop and citizen rather than criminal.  The Fourth Amendment may be vindicated through those arrested, but it protects everyone.  Just because we don’t learn of the law-abiding citizens who suffer the indignity of intrusion doesn’t mean they don’t exist, or they aren’t entitled to the protections the Constitution meant to confer.

The second flaw is that equilibrium reflects balance as seen through the eyeballs of a very select group, rather than some sort of societal agreement.  At the highest level, it consists of an agreement between 10 eyeballs, all of which are deeply rooted in the viability of the government; five people decide the relative balance of privacy for the rest of us, as opposed to some cognizable doctrinal basis for enforcing the constitutional prohibition.  One doesn’t get to be a Supreme Court Justice without having a major stake in maintaining societal status quo.  Unlike the rest of us, they trust the system, though some more than others.

But the real fight isn’t on the Supreme Court level, but in every hot, dirty, packed courtroom around the country.  Every judge superimposes his or her vision of the balance of power between cops and defendants every time they rule on suppression.  Whether it’s elevating one fact over another to reach a desired outcome, or spinning what can’t be ignored to serve that goal, judges impose their sensibilities on every case before them.

If Fourth Amendment law is doctrinally based, at least it provides some measure of reason and predictability to limit judges from reinventing the law according to their personal sense of where the equilibrium should be.  There would be rules, and should judges adhere to the rules, there would be a minimum basis to argue whether police conduct violated them.  If, as Orin contends, the rules are just fluff, something to calm the natives into accepting that this isn’t just a matter of whatever a judge’s gut says keeps the balance, then we are awash in personal visions of where along the spectrum of privacy, or intrusiveness as the case may be, the law should fall.  This is, in effect, no law at all.

We tell ourselves that we’re a nation of laws, not men.  Yet the equilibrium-adjustment theory asserts just the opposite, that the law is whatever a select bunch of robed folks feels it should be from time to time to address the never-ending changes in technology, social mores and political perspectives.  The rest is just a big scam to give the appearance of reason when the only reason is that a judge thinks that an adjustment is needed to keep things in balance.

While Orin’s theory provides a very realistic explanation for how Fourth Amendment law has ended up defying anything remotely resembling reason, a mess, it is an indefensible theory.  If search and seizure law is nothing more than a bunch of judges’ personal sensibilities about where the equilibrium should be between police intrusion and personal privacy at any given point in time, that’s not good enough for a constitutional democracy.  And it’s most assuredly not what I swore an oath to.

We may argue all day long as to how reason applies to the varying facts and technological changes that constrain police and citizens in their struggle, but we do so based upon the belief that the Constitution has rational meaning.  That the development of Fourth Amendment law can’t be explained on any rational basis is one thing.  That this is an acceptable way for the law to develop is another.

The equilibrium-adjustment theory may well be accurate in explaining the mess we’re in, but it is most assuredly not an acceptable means of formulating the law intended to protect Americans from the over-reaching intrusions of their government.