The Narrative Impulse in Judicial Opinions
This essay examines the backdrop for the Supreme Court's expansive reading of the Fourth Amendment in Katz v. United States, namely, "The right of the people to be secure in their persons ... against unreasonable searches ... shall not be violated." Katz, and perhaps more significantl...
Saved in:
| Published in: | Law and literature 2011-03, Vol.23 (1), p.80-128 |
|---|---|
| Main Author: | |
| Format: | Article |
| Language: | eng |
| Subjects: | |
| Online Access: | Get full text |
| Tags: |
Add Tag
No Tags, Be the first to tag this record!
|
| Summary: | This essay examines the backdrop for the Supreme Court's expansive reading of the Fourth Amendment in Katz v. United States, namely, "The right of the people to be secure in their persons ... against unreasonable searches ... shall not be violated." Katz, and perhaps more significantly its precursor, Olmstead v. United States, reflected not only a doctrinal move toward restricting government surveillance, but also a confluence of two approaches to judicial writing on the subject. The first was the traditional conceptual approach that law schools have long promoted; it consists of textual analysis that enables judges to designate the bright lines for shaping citizens' and public officials' conduct. The second was a narrative approach buried beneath the surface of the opinions; it consists of stories, some real, others projected, that enable judges to introduce long-standing social norms into their decision-making process.
The narratives that Justices Holmes and Brandeis introduced in their respective dissenting opinions in Olmstead were reconfigurations of the "surveillance tragedy," a narrative that antedated the framing of the Bill of Rights. In its most refined form, namely William Shakespeare's Hamlet, the surveillance tragedy encompassed a range of themes, such as government excess, intrusions into citizens' privacy with resulting paranoia, paralysis or psychological imprisonment, loss of citizen autonomy sufficient for a robust democracy, and ultimately the full-blown corruption and destruction of the state. This essay elaborates the surveillance tragedy more systematically, in part by giving critical attention to Hamlet itself, but also by showing how this narrative fleshes out much of what the conceptual dialogue of the Fourth Amendment omits. |
|---|---|
| ISSN: | 1535-685X 1541-2601 1541-2601 |