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View Diary: Justice Scalia says Revolution may be necessary (185 comments)

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  •  Exactly, Scalia is not 'originalist' on 2A (0+ / 0-)

    And apparently not on other Amendments in the Bill of Rights, either, like 4th A.

    Consider this recent QA& with Marvin Kalb:

    Marvin Kalb questioned Scalia about whether the NSA wiretapping cloud be conceivably be in violation of the Constitution:
    Justice Antonin Scalia said, "No because it's not absolute. As Ruth has said there are very few freedoms that are absolute. I mean your person is protected by the Fourth Amendment but as I pointed out when you board a plane someone can pass his hands all over your body that's a terrible intrusion, but given the danger that it's guarding against it's not an unreasonable intrusion. And it can be the same thing with acquiring this data that is regarded as effects. That's why I say its foolish to have us make the decision because I don't know how serious the danger is in this NSA stuff, I really don't."
    •  What he's talking about is the text of the 4th (2+ / 0-)
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      VClib, sordiddetails


      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.
      Scalia is more of a textualist than an originalist.  He believes in interpreting the Constitution according to what it says.  When he says that the freedom in the Fourth Amendment is not absolute, that's because the Fourth Amendment does not provide a right of people to be free from search and seizure, but only from UNREASONABLE search and seizure.  

      I have no problem with people disagreeing with Justice Scalia -- a lot of constitutional scholars do (just as a lot would agree with him).  I do, however, think it's important for people to understand what his position actually is if they are going to criticize him.  And on this one quote, he's actually pretty accurate -- the 4th amendment is not absolute in that it only protects us from UNREASONABLE searches, not all searches.  

      •  No, you, as usual apply the unreasonable word to (0+ / 0-)

        the search instead of the warrant.  And, also chose to ignore that the amendment protects us in our effect and their use, including cars, telephones and computers.  All non warranted searches are per se unreasonable, and the carve out of the exceptions is no more than a surrender to a state claim of necessity.  But, we know what Madison, at least thought of that claim.

        Patriotism may be the last refuge of scoundrels, but religion is assuredly the first.

        by StrayCat on Sun Apr 20, 2014 at 04:03:05 PM PDT

        [ Parent ]

        •  I disagree with you about that interpretation (1+ / 0-)
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          of the 4th Amendment.  

          No, you, as usual apply the unreasonable word to the search instead of the warrant.
          The word "unreasonable" comes right before "searches."  The plain meaning is that "unreasonable" defines "searches."  I don't know how, under plain rules of grammar, you make the argument that the word "unreasonable" defines the word "warrant."  In grammar terms, "unreasonable" is an adjective, and we presume that the adjective modifies the noun that follows it.  

          Your interpretation -- that the word "unreasonable" modifies the word "warrant" is contrary to basic grammar.  

        •  And read Terry v. Ohio, 1968. (1+ / 0-)
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          It can be found here.

          •  Terry is about frisk on observation of a weapon (1+ / 0-)
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            to protect an investigating officer.  Not a search or seizure.  I terry is an example of a rational and basic investigatory method short of a search that has been extended and conflated with the exigent circumstance scam to support warrant less searches and the police control of minority citizens.  It is exactly this creep away from the fourth amendment protections that arises from cases like Carrol and Katz, which have been turned into excuses for the street level conduct of the police state.

            Patriotism may be the last refuge of scoundrels, but religion is assuredly the first.

            by StrayCat on Sun Apr 20, 2014 at 08:40:28 PM PDT

            [ Parent ]

        •  And Elkins v. United States, 1960. (1+ / 0-)
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          It can be found here.

          It must always be remembered that what the Constitution forbids is not all searches and seizures, but unreasonable searches and seizures. Without pausing to analyze individual decisions, it can fairly be said that in applying the Fourth Amendment this Court has seldom shown itself unaware of the practical demands of effective criminal investigation and law enforcement. Indeed, there are those who think that some of the Court's decisions have tipped the balance too heavily against the protection of that individual privacy which it was the purpose of the Fourth Amendment to guarantee. See Harris v. United States, 331 U.S. 145, 155, 183, 195, 67 S.Ct. 1098, 1103, 1113, 1119, 91 L.Ed. 1399 (dissenting opinions); United States v. Rabinowitz, 339 U.S. 56, 66, 68, 70 S.Ct. 430, 435, 436, 94 L.Ed. 653 (dissenting opinions). In any event, while individual cases have sometimes evoked 'fluctuating differences of view,' Abel v. United States, 362 U.S. 217, 235, 80 S.Ct. 683, 695, 4 L.Ed.2d 668, it can hardly be said that in the over-all pattern of Fourth Amendment decisions this Court has been either unrealistic or visionary.
          •  This is another case where the claims of necessity (1+ / 0-)
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            have lead to the overstepping of police conduct.  Search incident to arrest becomes a full house search and trashing of the arrestees property.  The reasonable expectation standard leaves us with an ex post facto decision on a case by case, unprincipled decision about whether or not our expectations are reasonable.  The probable cause standard for an arrest now becomes the standard for a warrant less search.  Walking on a public street means we have given up our privacy, and our autonomy.  
                 Because the Supreme Court is now interpreting doctrine and dogma instead of a constitution, we now have mush instead of jurisprudence.  Alito feels free to create facts not on the record to support his opinions, and to substitute his idiosyncratic judgement for that of Congress in voting cases.

            Patriotism may be the last refuge of scoundrels, but religion is assuredly the first.

            by StrayCat on Sun Apr 20, 2014 at 08:47:20 PM PDT

            [ Parent ]

    •  Yes, editing out the word effects is necessary (1+ / 0-)
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      i saw an old tree today

      to any of Scalia's meandering. He and Rehnquist are two of a kind.  Ideologues instead of judges.

      Patriotism may be the last refuge of scoundrels, but religion is assuredly the first.

      by StrayCat on Sun Apr 20, 2014 at 03:59:25 PM PDT

      [ Parent ]

      •  I plead the 5th :-) I don't know enough about 4th, (0+ / 0-)

        so I appreciate both sides of the discussion above -- it is enlightening for me, thanks to both StrayCat and coffeetalk. I don't know enough about the debates over the 4th, yet, to have an opinion on the discussion.

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