(Continued from yesterday’s post.)
Scalia understood, when he needed to, that words changed their meaning, and stretched to accommodate cases that didn’t exist for the founders. What, in the sense of the Fourth Amendment, counts as a “search”? Scalia took up this lexical question in Kyllo vs. U.S, writing that infrared scanning of a house to detect excess heat (generated, the police correctly inferred, by a marijuana greenhouse within) did indeed constitute a search. This is not the kind of search the Framers contemplated. Nonetheless, says Scalia:
When the Fourth Amendment was adopted, as now, to “search” meant “[t]o look over or through for the purpose of finding something; to explore; to examine by inspection; as, to search the house for a book; to search the wood for a thief.” N. Webster, An American Dictionary of the English Language 66 (1828) (reprint 6th ed. 1989)
How to read this? The written definition can be read to include viewing a house from the outside, and indeed, Scalia brings it up in this context:
One might think that the new validating rationale would be that examining the portion of a house that is in plain public view, while it is a “search”1 despite the absence of trespass, is not an “unreasonable” one under the Fourth Amendment.
But visual inspection of a house has not been classified as search by the Court — “perhaps,” Scalia says, “in order to preserve somewhat more intact our doctrine that warrantless searches are presumptively unconstitutional.”
In fact, it’s pretty clear from other Scalia opinions that he chooses a meaning for the word “search” which is simultaneously more restrictive than the dictionary definition — it excludes visual inspection of a house — and more inclusive than the contemporary plain-language meaning. To push a stereo away from the wall and look at its serial number, as in Arizona v. Hicks, is not to “search” the stereo; it’s not even clear whether, in standard English, a stereo can be searched, unless by pulling open the casing and digging through its insides. But in Scalia’s majority opinion there, the moving of the stereo is what creates the search:
A truly cursory inspection – one that involves merely looking at what is already exposed to view, without disturbing it – is not a “search” for Fourth Amendment purposes, and therefore does not even require reasonable suspicion… [t]aking action, unrelated to the objectives of the authorized intrusion, which exposed to view concealed portions of the apartment or its contents, did produce a new invasion of respondent’s privacy unjustified by the exigent circumstance that validated the entry. This is why, contrary to JUSTICE POWELL’S suggestion, post, at 333, the “distinction between `looking’ at a suspicious object in plain view and `moving’ it even a few inches” is much more than trivial for purposes of the Fourth Amendment. It matters not that the search uncovered nothing of any great personal value to respondent – serial numbers rather than (what might conceivably have been hidden behind or under the equipment) letters or photographs. A search is a search, even if it happens to disclose nothing but the bottom of a turntable.”
So a “search,” for Scalia, requires observation of something that might reasonably be expected to be private, but doesn’t require looking inside of the thing searched. I think that’s a pretty good definition; but it’s not what’s in the dictionary, it’s not the way we use the word in plain Enlglish, and Scalia makes no claim that it’s what was in the Framers’ minds. It’s a definition you choose in order to achieve a goal, the goal of a workable evidential rule that suits our — or someone’s — sense of justice.
And that’s why it grates when Scalia says “[a] search is a search.” So matter-of-fact, so direct; but so utterly opposite to what’s actually happening! He should have said “A search is what we define a search to be.”
In light of Scalia’s take on statistical sampling, his rejection of Powell’s dissent is interesting:
As for the dissent’s extraordinary assertion that anything learned through “an inference” cannot be a search, see post, at 4-5, that would validate even the “through-the-wall” technologies that the dissent purports to disapprove. Surely the dissent does not believe that the through-the-wall radar or ultrasound technology produces an 8-by-10 Kodak glossy that needs no analysis (i.e., the making of inferences)
To measure radiation emanating from the outside of a house, and to infer by technological means something about the contents of the interior that can’t be directly observed: this, for Scalia, is a search. To count all the inhabitants of a city you can find, and to infer by technological means something about the people who couldn’t be directly observed: that, Scalia says, isn’t counting. In Kyllo, Scalia is happy to speculate about future technologies that will make his view more obviously correct, as soon as they exist (“The ability to “see” through walls and other opaque barriers is a clear, and scientifically feasible, goal of law enforcement research and development.”) In Commerce, his vision of technological progress in statistics is decidedly more pessimistic. Why?
Quomodocumque 
I think Scalia’s position is consistent here. The 4th Amendment prohibits “unreasonable searches” (and seizures), so the question is whether something is a “search” and, If so, whether it is “reasonable”. But the dictionary definition of search is not the end here: people understand words in context, so the question is “is this means of gathering information the kind of search the 4th Amendment was intended to restrict?”. Similarly the 2nd Amendment protects a right to keep and bear “arms” but it’s almost universally accepted that, whatever the scope of the right is, the word “arms” doesn’t simply encompass some list of weapons then in use, but rather those weapons that are relevant to the right (whether collective as part of the militia or individual for defence form others and from the state), so that as technology evolves one needs to decide which “arms” ares covered by this on a changing basis. The 1st Amendment protects “the freedom of the press”, but this is almost universally understood to protect the freedom to communicate via technology: that the NYT website is as protected as their printed version.
The census clause is very different. It calls for an “actual enumeration”. Here there is a reasonable interpretation that this was understood to specify the methodology of counting (visit every household and make a list) rather than just the outcome (an estimate for the number of people). If to “actually enumerate” means to make a list, then statistical inference is not a form of information gathering that’s included. If “enumerate” means just to ascertain the number then yes.
I don’t have an opinion on this point myself (I have an opinion on the policy question: obviously statistical sampling is more accurate), but I don’t think Scalia is inconsistent here: having settled on the first interpretation of the census clause, he was bound to treat it differently than the 1st, 2nd and 4th Amendments.
“but doesn’t inquire looking inside of the thing searched”
require?
yes, why Scalia gets credit for being consistent and incisive is beyond me… he merely did what most do: held ingrained, prejudicial opinions and then arduously molded definitions and ambiguous words as he wished to fit those pre-formed beliefs case by case. Nothing inherently unusual about that, except that in his instance, it wrought tremendous harm to democracy.
Exactly. If you look for his axioms, you will not find them in the Constitution, they are summed up in the most ancient form of identity politics, the Divine Right Of Yours Truly (DROYT) — “In the Beginning was the Word, and I will tell you what it Means.”
Speculative answer:
Scalia has a general expectation that, as a purely theoretical pursuit, good statistical analysis requires nothing but intelligence, and, as the Founding Fathers were just as intelligent as we are, anything we could know would have been known by them. This is in contrast to looking into a house by technological means, which requires actually newly built objects.
If you believe in a philosophy of law that holds that neither law nor philosophy are subjects in which progress is possible, then it is natural to believe the same of mathematics.
Lior, I agree that this is the move AS is making, and I don’t really disagree with it — I am only pointing out that it involves choices: the choice to interpret the word “search” as referring to a certain outcome, and “enumeration” as referring to a certain methodology. Scalia writes as if these choices are forced on him (and should be forced on his fellow justices) by the text and the context, and I think that’s just not right. These choices are underdetermined.
I do think “search” has to come with SOME methodological restrictions: it’s not, by any lights, a “search” if I ask someone’s roommate to tell me what’s in the apartment, is it? But the outcome (obtaining information about the contents) is the same.
Quasihumanist: Totally agree; you can see in Scalia’s Commerce opinion, and Thomas’s too, if I recall, the idea that mathematics, unlike physics, is a static subject, where knowledge available to us was also available to the Founders. I don’t think this has so much to do with their ideology, though, I think it’s just general non-acquaintance with the state of math.
Jordan, Some Justices indeed believe that today’s people should “choose” an interpretation according to what is best for us. Others have different approaches — for example Justice Breyer, who thinks we should choose the interpretation that, given the situation today, best fits the provision’s purpose (the goal of the census clause was to obtain a count, so we should choose the interpretation that gives the best count). Scalia believed the meaning of text was fixed at the time of ratification; we should choose the meaning that the people at the time would have understood the text to have.
So, by his lights Scalia isn’t “choosing” to interpret the words one way or another. He is examining the evidence as to which interpretation would have been the one understood by contemporaneous listeners, and going with the interpretation best supported by the evidence. He doesn’t consider himself free to select an interpretation — according to him that choice was made (by others) at the time of ratification and he is only attempting to determine what that choice was. I suppose you could say he “chooses” which interpretation he finds more convincing, but that’s an odd way of putting it.
In the context of the census clause, do you mean that, after concluding that the best evidence shows the term “actual enumeration” was understood by its 18th-Century listeners to fix the census methodology Scalia could still “choose” to instead interpret it to allow other methodologies? Certainly there could be disagreement about this evidence — there is no way to be sure what 18th-century listeners understood, nor did they all necessarily agree — but I don’t see why this choice is entirely “undetermined”.
For those who think that the meaning of the Constitution is up to every generation to freely choose based on their circumstances, the interpretation is genuinely a matter of undetermined choice. If this is your philosophy then freely making the choice and then pretending that it was forced by the text and the context would indeed be a (rhetorical) “move”. But for Scalia, who thought the meaning had been chosen at the time of ratification, claiming that the text and context led to the interpretation was not a pretence or a rhetorical move. According to him the different possible interpretations are not equally situated — some are more supported by the evidence than others. Perhaps you think it was wrong of Scalia to write his opinion with the assumption that his interpretive methodology was correct (that his fellow Justices should also follow the original public meaning), but this is not more or less wrong that of Justice Breyer writing his opinions assuming his fellow Justices should be forced to agree with his interpretation because it is the one that best gives effect to the purpose of the provision. Trying to give effect to the purpose of the provision is not more a “move” on Justice Breyer’s part, than choosing the original public meaning is on justice Scalia’s part.
So, unless you think it’s impossible that 18th-century listeners could have understood one provision to fix the census methodology for all time, and another provision to be intended to be adapted to future search methodologies are they are invented, I don’t see why you think Scalia is being inconsistent in thinking exactly that.
“inquire” should be “require”
I see that I should have addressed on more point: precedent. Scalia placed a lot of weight on precedent (unlike, say, Thomas, who is much more willing to overrule precedent if he thinks it wrong as a matter of first principles). Concerning the 4th Amendment, Scalia is operating against the background of a lot of precedent. For example, It had already been decided that the Supreme Court sets the standards for what “searches” are and which searches are “reasonable” under the 4th Amendment, and that these standards are influenced by practicalities for the police. There are many cases on what is or isn’t a search under the 4th Amendment and how to decide if such searches are reasonable. Against this background (for Arizona v. Hicks, a key idea is the “plain view exception”) Scalia is arguing that past cases (most specifically Illinois v Andreas that he cites) are best understood if “search” involves new access to information. So again (but for a different reason) this isn’t an undetermined choice. Scalia is arguing that past Supreme Court decisions (the legal framework for the 4th Amendment) are best summarized by his definition of “search” rather than the definition Justice Powell is proposing. If you want citations to the framers read opinions by Thomas instead — he’s the one to go back to the framers and ignore the intervening precedent.
Regarding Scalia’s possible views on mathematics:
I agree that his view that mathematics is a static subject may be based on ignorance, but ignorance is often colored by ideology.
But I should clarify – I don’t think that mathematics being static is important in Scalia’s viewpoint; his viewpoint makes just as much sense if mathematics changes constantly without making progress, so that the mathematical understanding of the Founding Fathers is at least as valid as ours, just as the fashion sense of the Founding Fathers is just as valid as ours.
I think it is possible to have a coherent (and not ignorant) philosophical account of mathematics that holds that mathematics makes no more progress than novel writing, though of course there is both new mathematics and new novels, and many recent novels do things (for lack of more specific yet still encompassing terminology) that were inconceivable 300 years ago. I think agreement with this philosophical account of mathematics correlates positively with agreement with similar philosophical accounts of law, philosophy, or language.
Following this discussion, I wonder if Scalia ever seriously entertained the idea that using the Huntington-Hill method to apportion seats in the House is unconstitutional.