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“The Constitution is not a living document. It is dead, dead, dead,” proclaimed the late Justice Antonin Scalia in a 2013 speech at Southern Methodist University. Justice Scalia was one of several Justices who based their rulings on the “original” Constitution — the literal meaning “that it bore when it was adopted by the Founders.” On the other side of the ideological spectrum lie proponents of the “living” or “active” Constitution, who argue that the Founders could not possibly have anticipated the technological and societal developments that would occur over the coming centuries. Accordingly, judges today are given a level of judicial discretion when analyzing the underlying values of the Constitution and applying them to an ever-changing world. In its most polemical, a living Constitution adapts to the will of the people today and a dead Constitution solely considers the intent of its writers. 

A major issue which represents this ideological dichotomy is the debates over privacy rights in the digital age. The Fourth Amendment states that citizens are protected “in their persons, houses, papers, and effects” against unwarranted physical governmental intrusions. As new technologies such as cell phones, drones, and GPS have emerged however, a divided Supreme Court has struggled to define the right of privacy in light of this new, intimate, yet digital domain. While an activist approach may seem like the most appropriate ideology to address the needs of this rapidly evolving technology, both purely activist and originalist interpretations fundamentally lack the ability to reconcile both the original framework of the Constitution and needs of today’s society. 

The debate first began in 1969 in Katz v. United States, when the Supreme Court decided by a 7-1 margin that “the Fourth Amendment governs not only the seizure of tangible items,” but also electronic searches. In Katz, the Court was most likely hoping to establish a precedent to favor an individual’s privacy rights in the coming digital age. In fact, a concurring opinion written by Justice Harlan described a two-pronged test for lower courts to follow in order to identify whether an electronic intrusion has occurred: (1) the defendant exhibits a subjective expectation of privacy, and (2) modern society is prepared to recognize that expectation as objectively reasonable. 

This purely activist-based test proved problematic however, as judges’ perceptions often did not reflect what the majority of society was prepared to hold as a reasonable expectation of privacy. This was evident in a multitude of cases throughout the remainder of the 20th century including Dow Chemical Co. v. United States (1986), California v. Ciraolo (1986), and Florida v. Riley (1989). Although the Court in these three cases found that there is no reasonable expectation of privacy in aerial surveillance of an individual’s house, follow up polls and surveys determined that the defendants’ assumptions of privacy were shared by most Americans. The living Constitution was not in fact evolving to the expectations of the people. 

As society and technology progressed into the 21st century, originalist-based approaches instead proved more successful in establishing key Fourth Amendment protections for digital technologies. In United States v. Jones (2012), a unanimous Supreme Court likened the government’s installation of a GPS device to Jones’s car, to a physical search of his personal property. Thus, an unconstitutional search of Jones’s effects — protected under the original text of the Fourth Amendment — had occurred. In Riley v California (2014), the Court again deviated from the traditional logic in Katz, finding that a photos and videos on a cell phone are entitled to the same level of privacy as the physical construct protected under the original text of the Fourth Amendment since “a cell phone search would typically expose to the government far more than the most exhaustive search of a house.” Although these originalist interpretations provide sound logic to understand and follow, they also fail to provide a comprehensive solution. As technologies evolve, likening innovative sciences to physical counterparts may no longer be possible. 

Recently, in a 2019 case, Carpenter v. United States, the Supreme Court ruled that a warrant is required to obtain the historic location data of a cell phone when it connects with cell phone towers owned by third party providers such as Verizon or Sprint. While the holding of Carpenter mentioned the basic principles of Katz, the Court refused to adopt the inconsistent, tenuous rubric of the Katz Test. Instead the Court relied on precedent from Jones and Riley to ultimately find that “the fact that such [sensitive] information is gathered by a third party does not make it any less deserving of Fourth Amendment protection.”

The Court’s ruling in Carpenter was not the final chapter to this story, however. Notably, the activist approach in Carpenter again failed to define a clear test for lower courts to follow because intrinsically a purely living approach cannot present cohesive logic derived from the text. These logicless opinions provide little precedent or examples for lower courts to follow. In fact, the most specific test applied in Carpenter derived from a small portion of the Court’s opinion that was based upon an originalist interpretation: that data transmitted by a cell phone is the property of the defendant — property rights that the original text of the Constitution explicitly protects. 

Since these originalist approaches did not attempt to keep up as technology evolved, instead equating digital domains to protections given to physical counterparts, the “dead” Constitution was able to more definitively, yet narrowly, enumerate the protections of digital technologies. This solely originalist approach, however, also is problematic. Should an individual lose all their expectation of privacy regarding data, the moment that data no longer belongs to them? Will constitutional protections eventually hinge on the fine print of contractual documents as issues become increasingly complex? These questions are all emblematic of the narrow and exhaustible scope of an originalist interpretation.  

Ultimately, privacy rights are not an arbitrary concept that bears little importance to American society. Neither a pure activist definition nor a pure originalist interpretation, however, adequately protects this intimate, broad-ranging domain. Where a living Constitution distances itself from the letter of the law, a dead Constitution disregards its spirit. In the end, any true definition that may ultimately arise from this shroud of uncertainty will inevitably involve a Constitution that is both “living” and “dead.”