著者

辻 雄一郎

出版者

日本法政学会

雑誌

法政論叢 (ISSN:03865266)

巻号頁・発行日

vol.51, no.2, pp.111-130, 2015

---

The Fourth Amendment was added to the U.S. Constitution in 1791. In no place in the Fourth Amendment does the term "warrant" appear. In interpretation of the Fourth Amendment by the U.S. Supreme Court, the police require warrants to perform searches. A warrantless search is deemed reasonable only if it falls within a specific exception to the Fourth Amendment's warrant requirement. The ninety percent of American adults who own cellphones todays carry with them digital records of nearly every aspect of their lives. Two hundred and twenty-three years have passed since the Fourth Amendment was added. In Riley v. California, the Supreme Court held that the police generally have no authorization to search digital information on cellphones seized from arrested individuals without warrants. While the Riley case is certain to be a subject further study, the American scholars who have studied the case so far have found several lessons for the interpretation of constitutional law. In this article, I would like to discuss this issue with a focus on the interpretation methods of the originalist Justice Scalia and the intra-textualist Akhil Amar, and the battle between Congress and the judicial approach. Justice Breyer provided six factors to overturn precedents. Daniel Farber shows a pragmatic approach.