[rayiner]

> Do we honestly believe the writers of the document would have written exactly the same if they had today's technology? There's no way they could fathom always on two-way realtime radio communication devices, but they could easily have written the Constitution accordingly if they had them.

I suspect you're right--a bunch of high-IQ libertarian men who had just overthrown their government would write the 4th amendment differently if confronted with universal digital surveillance. But is that how we decide the legal effect of the constitution? We're stuck not only with what the founders actually wrote, but what they would have written if confronted with modern facts?

What are the parameters of this analysis? Do we assume the same James Madison--we have transported him into present day with his knowledge and thought processes intact and are simply presenting him with additional facts? Or do we assume a modern James Madison--the same kind of person today that James Madison was back then. And who decides what reincarnated James Madison would or would not have done--and why do we trust that this medium is correct?

I think it's simpler to say that the meaning of the constitution ends at what is written. What the founders intended is relevant to the extent we're trying to figure out what what they meant, at the time, by the words they used. But we won't go so far as to speculate about what the founders would have written if confronted with modern facts. We have people who can decide what to do about modern facts: they're called voters.

[dylan604]

The fact they allowed for ammendments tells me they acknowledge that things would change in the future. Nobody can predict the future, but allowing for a "living" document to be updated with the times suggests that's their allowing some flex. Here's where we are starting, but if we get 2/3 of both chambers to agree, then update the original.

[magicalist]

> I think it's simpler to say that the meaning of the constitution ends at what is written. What the founders intended is relevant to the extent we're trying to figure out what what they meant, at the time, by the words they used.

This is a bit of a specious argument, though, since of course what they wrote often didn't clearly articulate what they necessarily meant. You even point this out above: what is ownership, and what is unreasonable? Does entrusting your effects to a third party for safe keeping make them less your effects, etc.

[rayiner]

> since of course what they wrote often didn't clearly articulate what they necessarily meant.

Sure. But what "they necessarily meant by the words they said" is different from "what they would have said if confronted with different facts."

The ownership issue is a good example. Does the word "their ... papers and effects" include third-party data about someone? Third-party data existed in 1789. British people love record-keeping, and the founders were sophisticated people with lawyers, accountants, merchant accounts, etc. If the fourth amendment meant to include third-party information about someone, the founders wouldn't have used the ownership language that they used.

So the real argument is that, if the founders saw how important and sensitive third-party information is today, they would have included it. They wouldn't have used the ownership language they used. That's quite a different argument! It's not just trying to understand what people meant by the words they used. It's trying to reanimate them and ask them questions to scenarios they never contemplated.