Funny, I must have missed the part of the Fourth Amendment that carves out an exception for "special needs" or "overriding public danger." Hm, let's see:
"The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized."
Your problem is understandable!
An ordinary citizen can't be expected to
"see it"!
Seeing it takes special qualifications,
years and years of experience,
especially at the highest levels
of government,
many deep, secret arguments
and considerations, etc. Only
such very, very special people
can be expected to "see it".
In particular, those very, very
special people can read the
same words in the Fourth Amendment
you and I can read but, unlike
you and I, know that they, such
very, very special people, are
understanding the true meaning of
those words, true meaning, I'm sorry to
say, no insult intended, is just
beyond ordinary people such as
you and I.
But now aren't you glad that our
country, your privacy, and the Fourth
Amendment are being so well cared
for by such very, very special people,
people who can understand things,
e.g., the true meaning of the
Fourth Amendment, you and I can
never "see"?
Uh, oops, where did it put that extra
airline barf bag???
What is the point of a constitution if any judge/lawmaker can create loopholes around its most crucial articles in complete secrecy?
What is the point of a judiciary system that uses secrecy so easily while at the same time putting common people behind bars for perjury?
How can people think they are free when they can be subjected to "laws" they never heard about at any time?
To be honest, I'm not a citizen of the USA so I shouldn't care. But all that is increasingly appearing to be the norm around the world and it's becoming extremely worrying.
When a country abuses their own rules, the heads of state must be tried in an international (criminal) court. But no non-lawyer knows how to do it, so it never gets done.
You're right about it being the norm. The only way to stop it is to sue them. it's literally the only thing they understand.
There a lot of competition for seats
in the US House and Senate.
So, basically one thing we are waiting for
in the US is House and Senate candidates who
want to make speeches strongly in favor of
restoring the First and Fourth Amendments.
It would be good news if the present members
of the House and Senate would come out
strongly for the Constitution.
So, why not? Candidate reasons:
(1) Currently the Dems have the White
House and the Senate so don't want to
appear to claim that the situation is
rotten.
(2) Everyone in office is afraid of
being accused of being "soft on
terrorism". And if a politician gives
a speech saying we should restore
the full meaning of the First and
Fourth Amendments and another
loser, wacko, Jihader Boston bomber
kills/or injures some people,
then the politician's political opponents will
scream "soft on terrorism".
(3) While some people are quite concerned
about the NSA and Congress with the
Patriot Act, etc. trashing the
Constitution, likely and apparently so
far not enough people are raising hell.
(4) Somehow the political dynamics
in the US are strongly toward: Once
the US takes some step for national
security, reversing that step is
very difficult.
A big example was
Viet Nam: There the US went on and on and on
spending more and more and more and
right along, really, doing less well,
for a very long time.
How long? In the
late 1940s, the
US supported the return of the French.
When the French lost in, whenever,
1954, the US tried to prop up
a 'US friendly' Saigon. By Kennedy's
term starting in 1961, as Saigon
started to lose, Kennedy said some
of the right things:
"I don't think that unless a greater effort is made by the Government to win popular support that the war can be won out there. In the final analysis, it is their war. They are the ones who have to win it or lose it. We can help them, we can give them equipment, we can send our men out there as advisers, but they have to win it -- the people of Viet-Nam -- against the Communists. We are prepared to continue to assist them, but I don't think that the war can be won unless the people support the effort, and, in my opinion, in the last 2 months the Government has gotten out of touch with the people."
During his campaign, LBJ also said
some of the right things:
"We are not about to send American boys nine or ten thousand miles away from home to do what Asian boys ought to be doing for themselves."
Then, once in office, LBJ
wanted to win a "coon skin cap" and added
and added.
Then Nixon wanted only
to 'win' -- I know, "Peace with honor".
From about 1961 on, a growing fraction of
the US voters were very much against
the war and wanted, really, just, to, in a
single word, leave. In two words, leave
immediately. McGovern ran on that, and lost
badly.
The US demonstrations got
bigger and stronger. The 1968 Dem
convention in Chicago was a small war
in the streets. There were many
marches on DC. "Hay, hay, LBJ
how many kids have you killed today?".
Still the White House
and Congress wanted to "stay the course".
As we were actually losing and
people were hanging off the last
helicopters out of Saigon, President
Ford still wanted to send more money.
Gotta tell you, next to no one in
Congress or the White House wanted
out of Viet Nam. How'd we get out?
The requests for much more in
blood and treasure did fail in
Congress. Then the North Vietnamese
basically took South Viet Nam and
Saigon and drove us out.
Then, for the "war against terror",
the other side has no hope of
driving out the US like the North
Vietnamese did.
Viet Nam was the big example we
were never to repeat, but we did.
It didn't take much: A few
wacko Jihaders hijacked four
airplanes, and the US went
all wacko: We ruined our
airline system, trashed the
Constitution with the Patriot Act,
etc., occupied Iraq and
Afghanistan, and
stayed for well over 10
years.
Gulf War I was an exception:
There we remembered Viet Nam and
the fairly simple and obvious
lessons and applied them.
So, we asked what's the goal;
can we achieve it; how do we
achieve it; how do we get out?
Goal: Drive Saddam
out of Kuwait. How to achieve it:
Have the Saudis give the US
space for some airfields.
For a few weeks, run one heck of
an air campaign against the Iraqi
forces. During that time, build
up some ground forces. Then,
release the ground forces
into the Iraqi desert west of
Kuwait for a big left hook,
cut off Iraqi access to Kuwait,
and kill off the caught
Iraqis, all in just 100 hours.
Invite the Iraqi military leaders
to a tent, make them an offer
they can't refuse, have them
sign, and then mostly just
leave. It worked as planned.
With that success, for Gulf War II
it was back to Viet Nam style
many years of badly conceived
mud wrestling. Similarly in
Afghanistan.
Net, again, once the US
decides to pursue some such a national
security effort, we
go for years and years
pursuing nonsense goals,
being silly and ineffective,
and just will not
see, say, and act on the
obvious -- leave.
More generally, the US wants to
police the world. When the world
doesn't look nice enough to
justify the police effort, the
response is more time, blood,
and treasure for more policing believing that
less police work would yield
a disaster.
Alas, we ignore
the lesson of Viet Nam:
We couldn't have lost any worse
than we did, both militarily
(at the level at which we fought the war)
or politically. Politically? We never
could find anyone who could run
the South from Saigon. So, with that
big loss, what's happened? Did the
world collapse? Did dominoes fall
from SE Asia, east, all the way across
the Pacific and land in Malibu? Did
Thailand, Burma, Indonesia,
Australia, Singapore, the Philippines,
Taiwan, Guam, etc. fall? Did Peking
and/or Moscow dominate SE Asia?
Heck no. Instead now Viet Nam
is doing well making, e.g., Brother
laser printers. The US should be
totally thrilled with Viet Nam.
Likely and apparently the US
could have had that outcome in
1947, 1954, ....
Bluntly, the US military and State
Department, etc. just do not know
how to do nation building. E.g.,
in Saigon we didn't know how to
pick an effective leader. Apparently the
situation is the same in Kabul.
One
reason is domestic US politics: So,
if the nation building doesn't try to
make the place look like Peoria,
or some TV sitcom (Green Acres), then US politics
gets all fired up. E.g., the US
goes into a very traditional Muslim
country and, for domestic US
feminist politics, tries to
educate the girls and
have sexual equality, all of which
is in wild conflict with
social mores going back
a few hundred years. We want
them to have a constitution,
a parliament, free elections,
modern laws, a judicial system,
roads, bridges, schools,
hospitals, etc. Meanwhile the
US loses out to some indigenous
leaders who promise no such things.
They have a way of doing things
over there. That's not the US
way, and we don't like it.
But, we are total fools if we
believe we can change their
ways to being like our ways
and more foolish if we believe that
they will like our efforts at doing so.
Instead, if we are to work in
such a country, then we need to
accept, understand, and work
with their ways of doing things.
And, yes, that might mean that
don't send the girls to school.
And it might mean that structures
of power and leadership selected by
means not
close to free elections.
Whatever, the US needs to make its
policing efforts fast and effective
and then leave.
Politicians need to speak something
closer to the truth to the US
voters and not promise
to pursue foreign adventures
to create shining cities on hilltops.
Until the US starts to look at
reality and become effective,
the US will continue to waste
time, treasure, blood, the
US Constitution, domestic tranquility,
etc. In simple terms, on foreign
adventures, the US needs to
give it a rest, f'get about it,
back off, cool down, relax, and
then, something like it did after
Viet Nam, rethink.
For defending the US, do that
both more effectively and mostly
closer to home and without
nation building.
I'm not soft on terror or US foreign enemies: For
Afghanistan, I would have leveled
large areas of the place, all from the air, until
the Taliban desperately called for
peace at any price. But I wouldn't
set foot in the place. Similarly
for Saddam -- make him an offer
he couldn't refuse, with
B-2 bombers circling overhead just
for practice, but again not
set foot in the place. I wouldn't
give them schools; I wouldn't give
them so much as a short pencil.
Then I'd leave.
The need is to defend the US.
There's no need to trash the
US Constitution.
Millions of
US voters need to tell the politicians
in clear terms to stop the
brain-dead nonsense of
wasting US time, treasure, blood,
domestic tranquility, the domestic
economy, and the US Constitution,
wise up, and become effective.
The fourth amendment also doesn't have an exclusionary rule in its text
IE no part of it says if the police conduct an illegal search, they can't use that evidence against you.
Yet most people seem to get up in arms when Scalia/Thomas/whoever says that line of cases should be overruled, and that it's up to congress to pass laws to deal with police conduct
Can you explain what you think the drafters were thinking about when they added a prohibition against unreasonable searches and seizures? If the police can use evidence gained from unreasonable searches and seizures, why would anyone care about prohibiting them? If the government (say government based overseas to which your colnies owe allegiance) can "take your stuff" and convert it for their own ends (or perhaps destroy it), what good will a prohibition on "unreasonable searches and seizures" do you? After they've got your stuff and can use it however they wish (or destroy it), it's too late. The damage is done. The fact the search and seizure was unreasonable does you little good.
Is it the searches and seizures themselves that were undesired by the drafters? Or does it have something to do with what's taken and what happens to it afterwards?
The rule existed in traditional English Common law from long before the U.S. declared Independence.
Being that the Fourth Amendment itself was a reaction against General Warrants and Writs of Assistance, it's hard to imagine the founders would have wanted even less protection here than English law already provided
This is a great policy and common law argument.
But, much like the parent comment, can you point where in the text of the 4th amendment (or the constitution) where it says anything about an exclusionary rule?
Because if we are going to argue policy and common law, than we also have restrictions that don't appear in the text, but appeared in common law, as well.
Sure. I think we are mostly in violent agreement.
I'm actually not trying to argue that it's not a violation of the fourth amendment (i strongly believe it is). I'm arguing that the literal text of the fourth amendment alone is not, by itself, a great explanation of what it really means in today's world.
The reply I original made was to the argument that because 'overriding public danger' doesn't appear in the literal text of the 4th amendment, there can be no such exception.
As we've both gone through, the 4th amendment can't be viewed in a vacuum, or else it would be nonsensical.
So saying "i don't see where the literal text of the 4th amendment says that" doesn't seem to me a complete and total argument.
For example, it literally says nothing about anything but papers, persons, houses, and effects.
None of this explicitly covers phone calls, or even e-mail. You have to argue by analogy or inclusion in today's equivalent of papers or effects
It also only prevents unreasonable searches and seizures, and there is an argument to be made that "special needs" or "overriding public danger" make the searches not unreasonable.
I don't personally buy it, but ...
As you mention, there is also historical context on all sides to consider.
That is in fact, exactly my point. Saying "it ain't in the text" is even far past what textualism adherents do, and i'd venture to guess, would not make for a very useful statute construction philosophy.
I don't know what Supreme Court you've been watching, but it's not the modern US Supreme Court, which has made in unmistakably clear that the only time they'll apply it is when there is no colorable argument that the cops didn't know they were engaged in a fourth amendment violation. There is no effective exclusionary rule in the US anymore, it might as well not even exist.
Breaking rules has consequences. The 4th Amendment is a rule that says the government cannot conduct illegal searches. It should follow, then, that the consequences of a 4th Amendment violation include the inadmissibility of any evidence the violating search was used to gather. Otherwise it's not a rule.
Is this an interpretation of the word "unreasonable"? You're only protected against unreasonable searches and seizures, but if they deem collecting this data to be 'reasonable' then it wouldn't apply, if I'm reading it right. That said, I don't know much about the constitution (I'm from England, pip pip).
What do you think 'Supreme' means? The Supreme Court is where you take a case after you've been through the appellate courts. If this is your actual opinion rather than a typing error then you're unqualified to take part in this conversation.
However, some arguments here on HN
have started to convince me that
the SCOTUS role as 'supreme' or
'final' is not really correct and that
Jefferson saw this. Instead,
after the SCOTUS come the voters
who can tell Congress, e.g.,
"I don't care what the SCOTUS says.
I'm a citizen and a voter, and I
say that what the NSA has been
doing spying on US citizens
violates the Fourth Amendment,
and I want you to pass a law
throttling the NSA and
getting them honoring
the Fourth Amendment."
And if such a law is not enough,
then the citizens can
amend the Constitution.
It will be nice if some plaintiff
with standing to sue brings
a case before the SCOTUS and
wins. E.g., maybe a class action
on behalf of all 120 million or
so Verizon customers who had their
telephone metadata grabbed by the NSA.
Apparently Google is bringing a case.
Effectively, no judgement is ever really final. This is because, in a democracy, we must constantly acknowledge that our judgement could be wrong. Separation of powers, as you correctly describe it, manifests that acknowledgement by providing an avenue to contradict every action. Congress can pass a stupid law, but the President can refuse to sign it and the SCOTUS can deem it unconstitutional. The President can sign a stupid order, but Congress can impeach him. SCOTUS can make a stupid decision, but the President can refuse to acknowledge it and Congress can rewrite the rules.
It's not easy in any case, and there are a lot of hoops to jump through. Generally speaking, each branch declines to take their nuclear option by acknowledging the implicit threat available and compromising beforehand. Obamacare and DOMA are both recent and useful case studies for this interplay; ignore the content and the rhetoric and just look at the mechanics of what each entity did and when and why.
Yeah, but if the People get a law passed to say what they want, then the Attorney General declines to defend/enforce it, and then Supreme Court rules that the People don't have standing.
> (as the court is the last defender of the constitution)
and in part I was responding to that, and
other claims, that the SCOTUS is
the 'last word' or some such. And recently there
is a Jefferson quote on one of the related
threads here on HN where Jefferson
in effect says that the SCOTUS judges
are no less corrupt, etc. than people in
other branches of government. The
conclusion is that, really, the last word
and too often the crucial word on
what is constitutional has to
be the voters who tell Congress what
to do and/or push through a
constitutional amendment. So, I
was trying to be realistic and correct
about the real role of the SCOTUS
in protecting, say, the Fourth Amendment
and not to push politics.
In the Federal court system of the US, the Supreme Court is the top court.
That is NOT the case in all court systems, though. In the New York State courts, for instance, the Supreme Courts are the trial courts. They are below the Supreme Court, Appellate Dicision, which is below the Court of Appeals.
Thus, your argument that a court must be the top court because it has Supreme in its name is faulty.
Your implicit (and somewhat rude) argument was that D9u should have known the Supreme Court of the US is the top court because it is named the "Supreme" court.
The New York courts are relevant because they provide a counterexample that refutes your argument. You owe D9u an apology.
You happened to be right in your conclusion that the Supreme Court of the US is the top US court, but that is only because you already knew that and tried to construct your argument backward from the conclusion.
"The United States Courts of Appeals are considered among the most powerful and influential courts in the United States. Because of their ability to set legal precedent in regions that cover millions of people, the United States Courts of Appeals have strong policy influence on U.S. law; however, this political recognition is controversial. Moreover, because the U.S. Supreme Court chooses to hear fewer than 100 of the more than 10,000 cases filed with it annually, the United States Courts of Appeals serve as the final arbiter on most federal cases."
"Appellate jurisdiction has been conferred upon the Supreme Court by various statutes, under the authority given Congress by the Constitution. The basic statute effective at this time in conferring and controlling jurisdiction of the Supreme Court may be found in 28 U. S. C. section 1251 et seq., and various special statutes. -
Created by Congress in 1978 as a check against wiretapping
abuses by the government, the court meets in a secure,
nondescript room in the federal courthouse in
Washington. All of the current 11 judges, who serve
seven-year terms, were appointed to the special court by
Chief Justice John G. Roberts Jr., and 10 of them were
nominated to the bench by Republican presidents.
Why can't they change it to be effective? This seems to be the key point:
Geoffrey R. Stone, a professor of constitutional law at
the University of Chicago, said he was troubled by the idea
that the court is creating a significant body of law
without hearing from anyone outside the government,
forgoing the adversarial system that is a staple of the
American justice system. “That whole notion is missing in
this process,” he said.
"The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized."
Nope, I still don't see it.