In “The Reconciliation Roots of Fourth Amendment Privacy,” published in the University of Chicago Law Review, Dean and Bernard G. Segal Professor of Law Sophia Z. Lee examines the origins of privacy as a constitutional value and their implications for contemporary Fourth Amendment doctrine.
A prominent legal historian, award-winning teacher, and respected leader, Lee’s scholarship focuses on administrative and constitutional law, using history to place the law in broader context and examine how the law’s past can shed light on its future.
Lee’s article revisits the source of the Roberts Court’s contemporary use of the phrase “privacies of life” in protecting individuals’ information in the digital age: the Supreme Court’s 1886 decision in Boyd v. United States. Boyd was the first Supreme Court decision holding that the Fourth Amendment protects individuals’ right to privacy from unreasonable searches and seizures.
Lee notes that existing scholarship views Boyd as “an opening salvo in the Supreme Court’s turn-of-the-twentieth-century deregulatory jurisprudence” that aligned with the Founders’ view of privacy and the Fourth Amendment. She shows how, rather than a response to “growing federal economic regulation,” the idea of the “privacies of life” as a vital aspect of the Fourth Amendment instead emerged during Reconstruction and was linked to its dismantlement.
She writes, “In other words, the idea that the Fourth Amendment protected ‘the privacies of life’ was first a tool of Reconciliation—the process through which white Americans North and South, Democrat and Republican came together to limit Reconstruction, preserve racial hierarchy, and pave the way for the violent disenfranchisement of newly freed Black men.”
Lee also reframes constitutional scholarship that treats Boyd as a short-lived oddity and the Court’s current focus on privacy in Fourth Amendment doctrine as a modern creation stemming from its 1967 landmark decision in Katz v. United States. She examines how the history she uncovers supports and helps justify Chief Justice Roberts’s recent reliance on Boyd’s “privacies of life” catchphrase.
“Resituating Boyd in the politics of Reconstruction and Reconciliation strengthens the case that the Fourth Amendment was understood to protect privacy long before Katz,” she writes. “Boyd’s emphasis on the ‘privacies of life’ … was not idiosyncratic or happenstance. Instead, it was grounded in a broader legal culture that had come during the 1860s and ’70s to associate the Fourth Amendment with protecting an abstract concept of ‘privacy.’”
Lee also responds to other scholars’ work showing how constitutional privacy doctrines have provided limited protection to marginalized communities. “If we ever take seriously a reparative approach to constitutional law, Fourth Amendment privacy’s roots in Reconciliation and its preservation of racial hierarchy could instead amplify the case for more robust Fourth Amendment protections in an era of racially charged mass incarceration,” she writes.
In addition to her position as Dean of the Law School, Lee is an award-winning educator, having received Penn Carey Law’s Harvey Levin, A. Leo Levin, and Robert A. Gorman awards for excellence in teaching. Her classes include Administrative Law, Employment Law, and seminars on racial justice movements and on constitutional history and theory.
She joined the Law School’s faculty in 2009 as an Assistant Professor of Law and served as Deputy Dean from 2015 to 2017 before beginning her term as Dean in 2023 as Penn Carey Law’s first woman dean. She has held leadership roles in the American Society for Legal History and the Labor and Working Class History Association.
Original source can be found here.