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My memory's fuzzy, but wasn't there a court case 50 years ago that explicitly decided "outside of envelope is public, no privacy, inside is private, reasonable expectation of privacy"?

> where we should insert things into the Constitution that aren't there, "because change."

Not sure if sarcastic, but how is it possible not to do this?

e.g. the 1st Amendment grants the right to a "free press". Are there really constitutional literalists who believe that because the word "press" as used in the 18th century contemplates the operation of a machine that imprints ink onto dead trees that we should not consider wsj.com within the scope of its protection?

Or consider that the Constitution uses male-gendered pronouns to describe the requirements and duties for the offices of Congress and the President. Are we then to infer that only men can hold these offices?

It seems to me that everybody interpolates the Constitution to some extent, and the difference is a question of degree. So quite frankly I'm puzzled how it can be an accusation against someone that they interpret the Constitution freely, as if the real moral high ground is a the belief that e.g. judicial review doesn't exist.

For another example, There are definitely people who would like to believe that the 2nd amendment only applies to firearms available at the time of writing, and not anything invented since.

My understanding was that "reasonability" is more complicated than this, and that expectation of privacy is a factor, but an equally important one is the balancing of the government's interest (and the legitimacy of that interest). A search might still be unreasonable even if its subject has no reasonable expectation of privacy, right?

You're correct. When you have a warrant-less search, the reasonable expectation of privacy is balanced against the governments interest in the search. I can't think of situations where a search might be reasonable even if there is an expectation of privacy, because but I can't think of the opposite (though that doesn't mean an example doesn't exist, just that I haven't come across one).

Kind of, like in US v. Jones and Florida v. Jardines, where the Katz definition of a search (where the reasonable expectation test comes from), was not in the majority, but rather a simple trespass test was used. But most importantly, at this point in the analysis, we're simply determining was this thing that the government agents did a search? If it was, and there was no warrant, then it is presumptively unreasonable. If it wasn't a search (or seizure), then the 4th amendment does not apply.

> For the opposing view, Google "mosaic theory." As with many debates, this one comes down to a conflict between people who think the Constitution means what it says, and those that believe in "living constitutions" where we should insert things into the Constitution that aren't there, "because change."

This is an awful and inaccurate characterization of the position. An idea that both Alito and Sotomayor share common ground on can't possibly be as simple as the picture you present. But don't take my word for it; take Orin Kerr's.

http://volokh.com/2012/01/23/whats-the-status-of-the-mosaic-...