tag:blogger.com,1999:blog-17908317.post113527895377737620..comments2024-03-28T03:15:14.875-07:00Comments on Unenumerated: The Justice Department vs. the United States ConstitutionNick Szabohttp://www.blogger.com/profile/16820399856274245684noreply@blogger.comBlogger2125tag:blogger.com,1999:blog-17908317.post-1135698745592933032005-12-27T07:52:00.000-08:002005-12-27T07:52:00.000-08:00Let's look at the full language:"The right of the ...Let's look at the full language:<BR/><BR/>"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."<BR/><BR/>Compare this to the Takings Clause of the Fifth Amendment:<BR/><BR/>"... nor shall private property be taken for public use, without just compensation."<BR/><BR/>One could interpret the Fifth Amendment as saying that it's OK for the federal government to take private property for private use without compensation. Instead, the modifier "for public use" implies the government has no power to take for private use whether just compensation is given or not. Similarly, "...no warrant shall issue except..." implies that no searches, reasonable or otherwise, may be conducted without a warrant. <BR/><BR/>The requirement of a warrant is there to insure that an independent entity can check to make sure the search is "reasonable." The language "particularly describing the place to be searched, and the persons or things to be seized" forces the searching party to articulate their reasons for the search and allows the independent party to review those reasons. That is how rational human beings determine whether searches are "reasonable."<BR/><BR/>Like many other laws that protect human rights, there is a procedural component and a substantive component to the Fourth Amendment, both of which must be satisfied. Take away either the procedural or the substantive requirement and you take away a crucial freedom.<BR/><BR/>That the above interpretations of the Search Clause and the Takings Clause are proper interpretations is reinforced by the main canon of construction for the Constitution, the Ninth Amendment:<BR/><BR/>"The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people."<BR/><BR/>Customs searches are quite distinguishable from the federal government secretly spying on international phone calls to or from the United States because (1) customs searches at ports of entry are an ancient police power, which long predates the United States and which was never abolished by the United States as a violation of the Fourth Amendment, (2) the person to be searched has notice, and (3) customs searches are not conducted in secret, so the person searched has a chance to inform the public about them and to obtain legal redress for an unreasonable search.<BR/><BR/>Without such procedural protections the Fourth Amendment would be a sham. For example, if the NSA is actually also spying on domestic-domestic calls without a warrant, which I hope even anonymous would agree would be blatantly unconstitutional, there would be no opportunity for the victim to obtain redress in court. The procedural requirement, the warrant, is necessary to give substance to the substantive requirement, that searches be reasonable. Otherwise the Fourth Amendment is just a cruel joke.Nick Szabohttps://www.blogger.com/profile/16820399856274245684noreply@blogger.comtag:blogger.com,1999:blog-17908317.post-1135313673311778602005-12-22T20:54:00.000-08:002005-12-22T20:54:00.000-08:00The Fourth Amendment does not "expressly forbid[] ...The Fourth Amendment does not "expressly forbid[] searches and seizures without a court warrant" -- it forbids "unreasonable" search and seizure. The courts have long held that certain warrantless searches are reasonable, particularly in conjunction with the exercise of the President's Article II powers. Border searches are a clear example of warrantless searches that do not violate the Fourth Amendment.<BR/><BR/>Whether the NSA program actually violates FISA depends on technical details that we can't know about yet. Whether FISA can overrule the President's Article II powers is unclear. As is the question of whether the AUMF counts as statutory authorization for the surveillance (as the Supreme Court argued it did for the detention in Hamdi v. Rumsfeld).<BR/><BR/>This is a very grey area and the courts have typically given the Executive pretty wide lattitude in matters concerning search and seizure during the gathering of foreign intelligence.Anonymousnoreply@blogger.com