February 1, 2018 1:29PM

A Justice with Philosophical Training

At Reason’s “Hit & Run” blog today, Damon Root discusses “a major split [that] seems to be developing between conservative justices Neil Gorsuch and Samuel Alito over the issue of property rights and the Fourth Amendment.” I write simply to add a point to Damon’s important post. But first, a very brief summary of the issue.

Byrd v. United States, argued on January 9, is an automobile search case. Setting aside the more peripheral issues, the core question nominally before the Court was whether police may conduct suspicionless searches of places and effects in which those in possession have a reasonable expectation of privacy.

But Justice Gorsuch took not an “expectation of privacy” approach to the question but a property rights approach. Under common law, he said, “possession is good title against everybody except for people with superior title.” Absent probable cause, a trespass action would be available against anyone searching the car. Thus, “by virtue of his possession,” Byrd would have a right to resist a carjacker or throw out an overstaying hitchhiker. “So why not the government?”

Taking the more recent expectation of privacy approach to reading the Fourth Amendment, Justice Alito complained that “the problem with going down this property route is that we go off in search of a type of case that almost never arose…at common law, where [a person in possession] brings an action for trespass to chattel against a law enforcement officer.” He added that the word “property” doesn’t appear in the Fourth Amendment: “It talks about ‘effects’.” He then asked Byrd’s lawyer whether his argument is “that any property interest whatsoever falls within the definition of effects if we are going to go back to an originalist interpretation of the Fourth Amendment?”

Set aside whether Alito is resisting an originalist interpretation, it’s hard to know just what his theory of the case is. Is precedent his main concern, including the more recent expectation of privacy precedents and the alleged paucity of property precedents, especially involving law enforcement officers? Is it that with “effects” there’s a lesser expectation of privacy?

By contrast—and here’s the point I want to add—Gorsuch appears to be going back to First Principles. By implication, he’s doing the kind of state‐​of‐​nature analysis, reflected largely in the common law, that underpins the Constitution’s theory of legitimacy. From the Preamble to the document’s first sentence to the Ninth, Tenth, and Fourteenth Amendments, the idea is that legitimate governments have only those powers that the people have given them—but only those that they first have to give them. In the state of nature, there’s no right to trespass on another’s person or property—real or chattel—without probable cause. So once we leave the state of nature, where would a law enforcement officer get such a right. We have here, in short, a justice who studied these issues at Oxford, and we are the better for it.