The Differences Between the Constitution and Constitutional Law

In essence, there is a difference between the constitution and constitutional law. This paper seeks to explain the differences between the two by looking at the Supreme Court cases of Olmstead v. United States and Katz v. United States. The two cases were decided in 1928 and 1967 respectively and they concern the interpretation of the Fourth Amendment of the United States of America Constitution. The Fourth Amendment is part of the constitution while the decision of the Katz case is part of the constitutional law. The Fourth Amendment is the part of the American Constitution that protects the citizenry against unreasonable searches and seizures (Clancy, 2008). The amendment came into effect on December 15, 1791 and according to Hafetz (2001), it originated from the English Maxim that “every man’s house is his castle”.

The ultimate goal of the amendment is to protect and preserve people’s right to privacy which can be threatened by any unreasonable violation. In the words of the amendment, a search occurs when a law enforcement agent violates individual’s right to privacy (LaFave, 2004). Wilkey (1978) explains that the amendment does not give a conclusive definition of an unreasonable search because whether or not a search is appropriate depends on the scope, duration and conduct of the search in question as well as the privacy interests at stake. In other words, the reasonableness of a search is determined by the facts surrounding the search. According to Wilkey (1978) the courts determine the reasonableness of a search by striking a balance of two important interests.

These include the violation of an individual’s constitutional rights enshrined under the Fourth Amendment on one hand and government’s legitimate interests such as national security. As stated earlier, the Fourth Amendment and in fact the entire Constitution of the United States does not define what amounts to unreasonable searches and seizures. The court of the first instance convicted Olmstead of the offence by solely relying on the evidence from the wiretaps. Olmstead challenged his conviction in the Supreme Court arguing that the evidence from the wiretaps should have been excluded as the wiretapping his private telephone conversations violated his Fourth and Fifth Amendments rights. The court upheld his conviction and held that his rights under the Fourth and Fifth Amendments were not violated.

The ratio decidendi was that mere wiretapping of telephone conversations does not amount to search and seizure as provided for under the Fourth Amendment. According to the court's reasoning, searches and seizures involve actual physical examination of an individual’s home, person, papers or any other tangible material effect but not personal conversations. This, however, is not a sufficient explanation as to what influenced the majority judges to make the ruling when you consider the minority decision, particularly the opinion by Justice Brandeis, which forms the basis of the landmark case of Katz v. United States some decades later. In my opinion, the judges relied heavily on property law rules that limited their understanding of the provisions of the Fourth Amendment.

In the case of Katz v. United States, the petitioner, Charles Katz, was a college basketball handicapper whom authorities suspected of illegally transmitting gambling information to clients outside the State of California where he resided. That person, therefore, has a legitimate expectation of being protected by the Fourth Amendment. Again, the court observed that the Fourth Amendment was ratified with the aim of protecting the American people from unreasonable searches and seizures and not places as argued in the lower courts (Schneider, 2009). Therefore, listening to and recording Katz’s phone conversations using electronic devices, regardless of where the devices were attached, was a search and seizure under the Fourth Amendment which required a search warrant. The evidence from the telephone recordings was held to be inadmissible.