I recently posted about the open fields doctrine of Fourth Amendment law, the rule that it is not a "search" under the Fourth Amendment for the government to trespass on to your open field. In my post, I argued that the contrary rule argued by some advocates, that passage onto a person's land should be a search, conflicts with the text of the Fourth Amendment. The constitutional language specifically protects "persons, houses, papers, and effects," and it's hard to argue, as a matter of text, that an open field is one of those four enumerated things. Open land is not a person, a house, a paper, or an effect.
Joshua Windham of the Institute for Justice has written in with a response disagreeing with me. In the interests of furthering a debate on this topic, I have reprinted his response in full below. And after that, also below, I have replied and explained why I think Mr. Windham is incorrect. Who has the better argument? You decide.
First up, here's Mr. Windham's response:
