In “The Reconciliation Roots of Fourth Amendment Privacy,” published in the University of Chicago Law Review, Penn Carey Law Dean and Bernard G. Segal Professor of Law Sophia Z. Lee examines the origins of privacy as a constitutional value and their implications for contemporary Fourth Amendment doctrine.
A prominent legal historian, award-winning teacher, and respected leader, Lee’s scholarship focuses on administrative and constitutional law, using history to place the law in broader context and examine how the law’s past can shed light on its future.
Lee’s article revisits the source of the Roberts Court’s contemporary use of the phrase “privacies of life” in protecting individuals’ information in the digital age: the Supreme Court’s 1886 decision in Boyd v. United States. Boyd was the first Supreme Court decision holding that the Fourth Amendment protects individuals’ right to privacy from unreasonable searches and seizures.
Lee notes that existing scholarship views Boyd as “an opening salvo in the Supreme Court’s turn-of-the-twentieth-century deregulatory jurisprudence” that aligned with the Founders’ view of privacy and the Fourth Amendment. She shows how, rather than a response to “growing federal economic regulation,” the idea of the “privacies of life” as a vital aspect of the Fourth Amendment instead emerged during Reconstruction and was linked to its dismantlement.
She writes, “In other words, the idea that the Fourth Amendment protected ‘the privacies of life’ was first a tool of Reconciliation—the process through which white Americans North and South, Democrat and Republican came together to limit Reconstruction, preserve racial hierarchy, and pave the way for the violent disenfranchisement of newly freed Black men.”
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