Constitutional History

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Volume 91.8
The Reconciliation Roots of Fourth Amendment Privacy
Sophia Z. Lee
Professor of Law, University of Pennsylvania Carey Law School.

I am indebted to my Penn Carey Law colleagues, fellow members of the Writers’ Bloc(k), participants in the Privacy Law Scholars Conference, the Harvard Law School Legal History Workshop, the American Bar Foundation’s Legal History Roundtable, as well as Laura Edwards, Scott Heerman, Orin Kerr, Sandra Mayson, Ajay Mehrotra, Shaun Ossei-Owusu, Nicholas Parrillo, and David Rudovsky for especially generous and helpful feedback. I am immensely grateful to Alana Bevin, Madeline Bruning, Miles Gray, Susan Gualtier, Paul Riermaier, Anna Rosenfeld, Austin Severns, Mary Shelly, and David Sowry for their phenomenal research assistance, as well as to the National Archives and Records Administration staff who made accessing case records amid a pandemic possible.

The Roberts Court has made protecting “the privacies of life” a catchphrase of Fourth Amendment law in the digital era. The time is thus ripe for revisiting the doctrinal and political roots of this newly influential quote from the Court’s 1886 decision Boyd v. United States. This Article makes a novel argument that Boyd and its elevation of protecting the “privacies of life” to an animating principle of the Fourth Amendment was instead a product of Reconstruction and its dismantlement. Fourth Amendment privacy was produced by and helped secure Reconciliation—the process through which White Americans North and South, Democrat and Republican came together to limit Reconstruction, preserve White supremacy, and pave the way for the violent disenfranchisement of newly freed Black men. The Article concludes by considering the divergent doctrinal implications of resituating Boyd and Fourth Amendment privacy in the politics of Reconciliation.

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