Several provisions of the Bill of Rights seem to rely on common law concepts to define the rights they protect, such as the Fourth Amendment's protection of "persons, houses, papers, and effects" and the Fifth Amendment's protection of "property." A few years ago, I wrote (with James Stern) an article arguing that the Fourth Amendment should be understood to rely on positive law—the law of the specific jurisdiction in which the search or seizure took place—to bound what counts as a search or seizure. (Orin vehemently disagrees.) But we noted one important limit to the use of positive law—one should look to the law that would bind ordinary private parties, not the law that specifically binds the government. After all, if the government tries to give itself a special legal privilege to commit batteries and trespasses, that is exactly what the Fourth Amendment limits.

Read more at The Volokh Conspiracy