Original Misunderstandings: the Implications of Misreading History in Jones

• Publication year: 2015

Original Misunderstandings: The Implications of Misreading History in Jones

Brian Sawers

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ORIGINAL MISUNDERSTANDINGS: THE IMPLICATIONS OF MISREADING HISTORY IN JONES

Brian Sawers^*

ABSTRACT

This article shines light on a little-noticed but important error in United States v. Jones, the recent Supreme Court Fourth Amendment decision. In Jones, the majority opinion and Justice Alito's concurrence quibble whether the majority applies "18th-century tort law" in holding that the government's trespass constitutes a search. Both opinions mistakenly assert that any unwanted intrusion on private property was actionable at common law. While true in England, the American law of trespass provided no remedy for unwanted intrusions to unfenced land.

Current Supreme Court Fourth Amendment jurisprudence recognizes the open fields doctrine, which allows the government to search open land without a warrant. There is little indication at present that the Supreme Court or any other court wants to overrule the doctrine, so the Justices' nonchalant approach to history could be of no import to the scope of the Fourth Amendment. But the error could have a serious impact on property law. In recent years, the Supreme Court has exhibited a healthy appetite to both expanding the regulatory takings doctrine and imposing a judicial takings doctrine based on historical nonsense.

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TABLE OF CONTENTS

INTRODUCTION.................................................................................472

I. HISTORICAL ERRORS IN ORIGINALIST JURISPRUDENCE................474

II. OPEN FIELDS AND THE FOURTH AMENDMENT............................482

A. From Castle to Phone Booth..............................................483
B. Like a Bad Penny...............................................................489

III. TRESPASS IN 1791 .....................................................................490

A. Trespass in the Eighteenth Century Case Law ..................491

1. A Pleading for All Seasons...........................................491
2. New Laws for a New Land...........................................492

B. State Constitutional Provisions..........................................495
C. Related Colonial and Early Republic Statutes ..................497

1. Trespass Statutes ..........................................................497
2. Hunting and Fishing on Other People's Lands............505

IV. THE DANGER FROM THIS HISTORICAL ERROR..........................511

A. Open Fields Forever..........................................................511
B. Where Trespass Law Matters.............................................511

CONCLUSION....................................................................................520

INTRODUCTION

Before Katz v. United States,¹ a search under the Fourth Amendment required a trespass. Without a trespass to one's property, no search took place.² In Katz, a 1967 decision, the U.S. Supreme Court abandoned that approach, and instead found a search where the government invaded a "reasonable expectation of privacy."³ In Oliver v. United States,⁴ the Court elaborated on how the two tests relate. The Court found no reasonable expectation of privacy in open fields, and thus no search, even though the defendant had erected "No Trespassing" signs around his property to exclude the public,

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consistent with state law.⁵ After Oliver, trespass no longer equated a search.

In United States v. Jones,⁶ the latest case on Fourth Amendment searches, the Court returned to the notion of trespass as a bar to a warrantless search. The Court held that attaching an electronic tracking device to Jones's car constituted a trespass. Because attaching the device constituted a trespass, it was a search, and the government was required to obtain a warrant.⁷

The majority opinion and concurrences duel on whether reviving trespass in Fourth Amendment jurisprudence is wise, but all agree that landowners always had the right to sue for trespasses on their property, including open fields.⁸ Referencing Prosser and Keeton's treatise, Justice Alito's concurrence asserts that "[a]t common law, any unauthorized intrusion on private property was actionable."⁹ Writing for the majority, Justice Scalia agrees that unauthorized entry in private land constituted a trespass at common law.¹⁰

The justices and the treatise writers are indisputably right about the common law of England.¹¹ The English law of trespass grants the landowner a right to exclude from all private land, including empty fields and standing timber. But, the justices are wrong about American law. Landowners in early America could only exclude others from their homes (and curtilage), and sometimes fenced land. Landowners could not exclude from open land, and therefore, unwanted visitors committed no trespass.

A review of eighteenth century trespass cases shows that unwanted intrusions on open land unaccompanied by theft were not considered trespasses. Additional evidence comes from contemporary hunting

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law. Hunting, especially on horseback with dogs, is more disruptive than fishing or foraging, and so generated more lawmaking. Constitutional and statutory protections for hunting, mining, and resource gathering on open land reinforce the proposition that landowners could not exclude unwanted visitors from unfenced land. Hunting was not an exception to the rule. Instead, hunting was the activity most likely to be restricted since the hunters were armed, killed game the landowners might want for themselves, and hunting dogs could harass livestock.¹²

In the first part, the Article notes that this is not the only historical error in originalist jurisprudence. The second part discusses the scope of the open fields doctrine and how it relates to trespass law. The third part includes a review of American trespass cases from the eighteenth century, the constitutional protections for public access to private land, which necessarily limited trespass law, and colonial statutes that augmented trespass law, thus delimiting its scope and contours. The fourth part discusses the implications of faulty history for Fourth Amendment and Takings jurisprudence. Conflating English and American trespass laws has already produced a distorted regulatory takings doctrine. In Stop the Beach Renourishment, Inc. v. Florida Department of Environmental Protection,¹³ four justices exhibited an unhealthy appetite to ban judicial takings. If courts are going to decide cases today based on the law in 1791, then it is important to get the history right.

I. HISTORICAL ERRORS IN ORIGINALIST JURISPRUDENCE

Originalism is an approach to constitutional interpretation that "accords binding authority to the text of the Constitution or the intentions of its adopters."¹⁴ It has been a major theme in the

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American constitutional jurisprudence since Marbury v. Madison.¹⁵ While its importance has ebbed and flowed over the centuries, it has acquired considerable prominence and significance since the 1980s, first with the Reagan administration, and later with the appointment of Justices Scalia and Thomas to the U.S. Supreme Court.

President Reagan's Attorney General Edwin Meese announced that his office would be committed to "a Jurisprudence of Original Intention,"¹⁶ which Meese then described: "Our fundamental law is the text of the Constitution as ratified, not the subjective intent or purpose of any individual or group in adopting the provision at issue."¹⁷ To determine what the text meant at ratification requires historical analysis since many constitutional terms are no longer used or their meaning has evolved.

"The originalist's use of history is goal-directed."¹⁸ Originalists want to understand the past in order to address the present. To echo Professor Powell, "[t]here is nothing wrong with this utilitarian interest in history, but it does pose a serious temptation for the interpreter."¹⁹ Studying the past merely to understand it better presents less temptation, since the student of history does not have a modern ax to grind. Questions with well-defined and certain answers present fewer opportunities for faulty interpretations. Where the zone of uncertainty is large, as is the case with many areas of law, the opportunities for misconduct by motivated lawyers are correspondingly large. The legal zone of uncertainty is large because the original intent as well as original meaning is often indeterminate.

Commentators concerned about originalism often point out that the Framers disagreed on matters, including those of crucial constitutional importance then and now. Even when they did agree,

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the often limited historical record exposes the inherent and inescapable limitations of originalism. The paucity of the historical record does not often reflect lost history, in the same way that many of the classics of antiquity are lost to history. Instead, the thin historical record reflects that most of the questions of most interest to us were not the questions of interest to the Framers. The hope that history could provide the answer to contemporary problems presents "the fundamental historical error of ignoring the past's essential autonomy. Put more concretely, the founders thought, argued, reached decisions, and wrote about the issues that mattered to them, not about our contemporary problems."²⁰ Moreover, the "Constitution very wisely precludes very few policy choices,"²¹ it bars anyone younger than thirty-five or born abroad from serving as president.

Where the historical record is limited, originalism cannot supply an answer to a modern problem. But often, originalists have committed historical errors that are entirely avoidable. The historical errors in Jones described in Part III are not isolated and lamentable exceptions, but instead lamentably common. The scholarship and jurisprudence of originalism is rife with historical errors; most are the product of shoddy research.²...