RULING PUTS 'ORIGINALISM' TO THE TEST

Danny Kyllo was not growing rhododendrons in his home on Rhododendron
Drive in Florence, Ore., in 1992. He was growing marijuana, which when
cultivated indoors requires high-intensity lamps that generate
considerable heat and, in this instance, generated a Supreme Court
case.

Monday's decision merits attention because the opinion for the closely
divided (5-4) court was written by Justice Antonin Scalia. He is
commonly, and not improperly, called a "strict constructionist." He
describes himself as an "originalist," meaning that he construes the
Constitution by reading the text as its words were used and understood
at the time by those who wrote them.

The logic and structure of the document illuminates the original
meaning of those words. And Scalia's originalism was no impediment to
ruling that Kyllo's Fourth Amendment right to protection against
unreasonable searches was violated by a technology never envisioned by
the Constitution's authors. Dissenting from his civil libertarian
opinion were three more-or-less conservative justices (Rehnquist,
O'Connor and Kennedy) and the court's most liberal justice, Stevens.

Acting on information from informants and utility records, law
enforcement officers used an Agema Thermovision 210 thermal imager to
detect that the roof over Kyllo's garage and a side wall of his home
were unusually hot. Using that evidence, they acquired a search
warrant, found more than 100 marijuana plants and arrested Kyllo.

The Fourth Amendment was written in the context of the English common
law principle that "the eye cannot by the laws of England be guilty of
a trespass." However, more than the law enforcement officers' eyes
were involved in the scan of Kyllo's home. The question for the court,
as Scalia posed it, was: How much technological enhancement of
ordinary perception from such a vantage point, if any, is too much?

Scalia, joined by Souter, Thomas, Ginsburg and Breyer, stressed that a
homeowner has a reasonable expectation of privacy for activities that
could not be detected without technologically enhanced
eavesdropping.

Privacy is neither an easily identifiable thing, like the Grand
Canyon, nor an absolute value. However, the concern of the
Constitution's Framers for protecting privacy began by assuming that
privacy of the home is the most precious and most easily defined sort.
In Kyllo's case, Scalia offered this "originalist" criterion: What
preserves the "degree of privacy against government that existed when
the Fourth Amendment was adopted"? Scalia and four colleagues
concluded, "On the basis of this criterion, the information obtained
by the thermal imager in this case was the product of a search."

Stevens, writing the dissent, accused the majority of abandoning
"judicial restraint" as it overturned the Ninth Circuit, the home of
liberal judicial activism. Scalia responded that it is "simply
inaccurate" to say, as the dissenters did, that the thermal imaging
did not obtain information about the home's interior, the most
protected realm of intimacy.

Congress is about to step onto the dark and bloody ground of the
judicial confirmation process. Jurisprudential theories - "strict
construction," "originalism," the Constitution as a "living document"
that "evolves" to meet "new problems" - will be bandied. Some
senatorial and other critics of President Bush's judicial nominees
will portray those nominees as too much like Scalia, and hence too
strict in their "originalist" constitutional construction to
understand the applicability of the document to modern conditions. The
decision in the Kyllo case should, but probably will not, cause these
critics second, or perhaps first, thoughts.