William & Mary Bill of Rights Journal


Perry Dane


This Article dissects two developments in widely separate areas of American constitutional law—the “reasonable expectation of privacy” test for the Fourth Amendment’s Search and Seizure Clause and the “endorsement” test for the First Amendment’s Establishment Clause. These two stories might seem worlds apart, and they have not previously been systematically examined together. Nevertheless, the Article argues that they have in common at least three important symptoms of our legal culture’s deep malaise. These three phenomena occur in other contexts, too, but they appear with special clarity and a stark cumulative force in the two stories on which this Article focuses.

The most evident of these three common threads is a shallow and distracting focus on psychological reactions and affects. Another is the doomed effort, apparent in both contexts, to ground legal values in empirical facts—an effort found in other current legal strategies such as “original public meaning originalism.” The third is the failure to see that legal techniques that can make sense to solve hard cases at the edges of doctrinal categories must sometimes be distinct from the deeper principles that motivate and shape the categories themselves.

This Article examines the doctrinal development of both the “reasonable expectation of privacy” and “endorsement” tests. It also contemplates their possible fates as each comes under increasing practical and conceptual pressures. At the end of the day, the Article is, in some respects, a plea for at least a certain sort of legal formalism—not the illusory axiomatic, determinate, legal formalism that was the straw man of legal realists, but a more modest, yet self-confident, formalism that understands law’s distinctive role, in concert with other normative languages, in both framing and shaping the world in which we live.