SCALIA'S SENSIBLE STRICT CONSTRUCTION

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.

Last 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. He
said the evidence was illegally obtained because the warrant was
issued partly on the basis of the thermal imaging results, and the
imaging itself constituted a search conducted without a warrant, in
violation of the Fourth Amendment protection against unreasonable
searches.

The 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 that was conducted from the
street and took only a few minutes. 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
the thermal imaging technology used is "a device that is not in
general public use" and a homeowner has a reasonable expectation of
privacy for activities that could not be detected without
technologically enhanced eavesdropping. But, then, such eavesdropping
is, in a sense, a contradiction in terms.

There often is wisdom in the logic of common language, so notice the
derivation of the word that would commonly be used to describe what
the government was doing: "eavesdropping." The late Justice Hugo
Black noted that people surreptitiously seeking information used to
lurk in the "eavesdrop," in the shadow under a building's eave. This
may not have been nice, but neither was it invasive. It was the
equivalent of surveillance by the "naked eye" - in this example, the
officers' eyes unassisted by any sense-enhancing technology.

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 for the three other dissenters, sided with law
enforcement, accusing the majority of abandoning "judicial restraint"
as it overturned the Ninth Circuit, the home of liberal judicial
activism, which had ruled against Kyllo. Stevens argued that searches
of "property in plain view" are presumptively reasonable. 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.