Comments on: Non-Liberals vs. The Constitution

By: Xrlq

Xrlq — Thu, 11 Sep 2008 10:49:36 +0000

The First Amendment doesn't have a "reasonableness" element, so it's not inherently unreasonable to go originalist on that one and argue against balancing tests there. But where a law merely prohibits unreasonable X, as opposed to prohibiting X outright, and where the law provides no further guidance as to what is or isn't considered "reasonable," the only plausible "originalist" reading is that the framers intended this one to be left to future judges to decide what is or isn't reasonable.

By: gattsuru

gattsuru — Thu, 11 Sep 2008 06:46:11 +0000

You’d argue that, under any standard the writers of the Constitution could possibly imagine, that detaining, searching, and questioning every individual to enter a multi-block area as being a reasonable search, I’ve got a long stretch of bridge in Texas to sell you.

I’m not an originalism fetishist — these sort of compromises between safety and Constitutionally recognized and protected rights are probably the only reason the 1st amendment hasn’t been serially flipped — but the idea that it’s what the Constitution means rather than what a bunch of old lawyers decided was a good idea is pretty laughable in the face of cases like Atwater or dozens of other cases.

By: Xrlq

Xrlq — Thu, 11 Sep 2008 01:26:22 +0000

Not at all. There’s nothing odd about applying balancing tests to determine what is or isn’t “reasonable.” Of course you may disagree with the particular test, or how it is applied in a given instance, but that’s another matter. Everyone’s not going to agree on what is or isn’t “reasonable,” but someone has to decide.

By: gattsuru

gattsuru — Wed, 10 Sep 2008 21:40:45 +0000

You either have strange definitions of the phrase reasonable, or of “persons or things to be seized”.

By: Xrlq

Xrlq — Wed, 10 Sep 2008 19:33:04 +0000

If you think the issue is that cut and dried, your abridged version of the Constitution must have left out more than the various levels of scrutiny, which is a judicial intepretation of the Constitution and not a part of the text itself. I take it your abridged version of the Fourth Amendment reads something like this:

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~~.

By: gattsuru

gattsuru — Wed, 10 Sep 2008 18:52:33 +0000

No court would ever rule that X is unconstitutional, but uphold it anyway citing safety concerns. It just doesn’t work that way.

It seems to me as that’s the very thing the justices deciding in the favor of Sitz held. Admittedly, I do seem to be working from an abridged version of the Constitution that left out the various levels of scrutiny.

By: nk

nk — Wed, 10 Sep 2008 15:33:55 +0000

P.S. As for Terry, extent of the search is one more factor. Don’t tell anyone, but I was Terry-stopped a lot in my teenage years. One time, the officer felt a knife and he reached into my pocket and pulled it out. Another time, another officer felt a nickel-bag in the same pocket, squeezed it a little and kept on going. A third time, detectives just asked me my name. I reached for my ID but they didn’t care — my innocent brown eyes told them that I was telling the truth.

By: nk

nk — Wed, 10 Sep 2008 15:12:49 +0000

DUI checkpoints must still meet the reasonableness requirement of the Fourth Amendment. Among other things, they cannot 1) be capricious (random) or 2) totalitarian (subject every driver to a check anytime, anywhere). The nutshell test is, to what extent do they inconvenience innocent drivers?

As for statutes passed under the Fourteenth Amendment’s enabling clause ….

By: Xrlq

Xrlq — Wed, 10 Sep 2008 10:48:21 +0000

One of the first tricks they teach you in MBE review is to automatically write off any answer that has the constitutionality of anything depending on whether the affected conduct is a privilege or a right. Cops can’t open your trunk without consent or probable cause. The reason they can have sobriety checkpoints is because drunk driving is friggin’ dangerous. Walking down the street drunk, but not drunk enough for that to be obvious from a distance, not so much.

If the rule in Terry and its progeny were as crystal-clear as you suggest, and there were no reason to think today’s court might view the issue differently, then it might be justifiable for a newspaper to talk about the curfew as unconstitutional rather than merely allegedly so. It still wouldn’t make sense to cast it in terms of “whether safety trumps Constitution,” though. No court would ever rule that X is unconstitutional, but uphold it anyway citing safety concerns. It just doesn’t work that way.

By: Milhouse

Milhouse — Wed, 10 Sep 2008 05:54:04 +0000

Huh? If the facts are as the newspaper reported them, how can this possibly not be unconstitutional? And why should the newspaper pretend otherwise? If the facts are not as alleged, then that’s what you should be arguing, but you don’t seem to be. If people are not free to go about their lawful business without having to justify themselves to a policeman, then this is no longer the USA, and it’s time for another revolution.

Terry absolutely requires reasonable suspicion, based on “specific and articulable facts”, and merely being on a certain street, especially if one lives there, is not enough for reasonable suspicion.

As for alcohol checkpoints, they are illegal for pedestrians; the only thing that makes them legal for drivers is that there is no general legal right to drive a motor vehicle on a public road — it’s a privilege granted by the government that built and owns the road, and it can be conditioned on consent to such measures.