What a Conservative Wants
I think we established that there isn't a monolithic conservative view on constitutional jurisprudence, however Justice Scalia is a good place to go for at least some guidance as to a conservative paradigm.
In commenting on the notion of employing international law when deciding American jurisprudence, in this instance the question was what would he do if there was no US abortion jurisprudence but there were Canadian decisions, Scalia had this to say:
"I wouldn't look to Canadian law. I'd look at the text. It says nothing about it and I look at 200 years of history. Nobody ever thought it said anything about it. That's the end of the question for me. What good would reading Canadian opinions do unless it was my job to be the moral arbiter, which I don't regard it as. I regard the Constitution as having set a floor to American society. That floor says nothing about abortion. It's not the job of the Constitution to change things by judicial decree. Change is brought about by democracy. Abortion has been prohibited. You want to change that? American society think that's a terrible result? Fine, persuade each other about that, pass a law, and eliminate the laws against abortion. I have no problem with change. It's just that I do not regard the Constitution as being the instrument of change, by letting judges read Canadian cases and say, "Yeah, it would be a good idea not to have any restrictions on abortion." That's not the way we do things in a democracy. Persuade your fellow citizens and repeal the laws. Why should the Supreme Court decide that question?"
This is consistent with what I tried to say in my evolution sticker post. The Constitution is silent on many of the issues that society is attempting to resolve. Scalia is saying, don't turn it into a hand puppet and put words in it's mouth. If it is silent, let it be silent so the people can be heard.
As an aside, Justice Breyer felt that international opinions could be used to settle American constitutional questions. This demonstrates the liberal inclination to wander away from original intent. Clearly, the desires of our constitution creators cannot be found outside of the borders of the US.
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Re: "the desires of our Constitution's creators cannot be found outside the borders of the US."
From Decision in Philadelphia: The Constitutional Convention of 1787, by Christopher Collier and James Lincoln Collier:
"Late eighteenth-century Americans were deeply in love with the classical societies and their statesmen, generals, historians. College students did not read English literature. They read instead Caesar's Commentaries, the Orations of Cicero, the Politics of Aristotle; and they constantly referred to what Polybius or Plato thought on a given subject.
This love affair with the classical world was not, of course, universal. Among deeply religious people, especially the Protestants of New England, the first authority was not Cicero, but the Bible. But even the more religious thinkers valued classical ideas. One must, Benjamin Franklin said, imitate both Jesus and Socrates."
Mike3000 makes an excellent point. The Founding Father's were influenced by international sources in creating the Constitution. However, once it was created, the Constitution became the authoritative source for resolving American constitutional questions. The Founders did not have any American first sources as there was no America. Today we do, and that is where we should look to decide matters that pertain to Americans.
The Supreme Court's job is to decide if a law violates the US Constitution. Could a decision on the matter from another country provide some insight as to how to consider the matter? Certainly. Should that decision be the foundation for a Supreme Court ruling? Certainly not. The US Constitution should. And where the Constitution is not sufficiently clear, we should either look to American precedents or acknowledge that the issue should be decided democratically as it is not a constitutional issue.
Allowing the electorate to exercise its will upon extra-Constitutional matters clearly is your main point here. I'm sorry that I only had time Wednesday to snark on your aside, because what you're suggesting is, as simple as it sounds, intriguingly complex and, if I may say so, blogtastic!
Setting aside for a moment worthy questions of what is and is not considered Constitutional in a highly politicized judicial system (questions The Blogger engages much more persuasively than I do), let's look closer at the implications of the "activist electorate" Scalia's suggesting.
What in a democracy could be more ideal? Assemble and appeal, let your legislator write a bill or propose an amendment, Congress says its carefully considered yea or nay, etcetera etcetera as necessary. Problems? Come to the courts and make your case.
Ours, for better and for worse, isn't the citizen legislature of farmer gents that Jefferson, Madison, and the boys envisioned. Headquartered assemblies of lobbyists appeal to lifetime legislators bulwarked by a two-party system that takes turns gerrymandering every inch of the nation to preserve not the Union, but a political status quo that defies "original intent" with every cent of salary or "contribution" it cashes--and in color on two cable networks that Scalia's electorate has neither the time nor the inclination to watch.
This is our legislature; more to the point, it's our electorate (me included), which is about as active as it needs to be change the channel, wake up, and go to work in a nation that can (for an ever more brief moment)afford to be as politically lazy as its leaders have become. It's easy. We tell ourselves as a citizenry to vote (and we rarely do that in respectable numbers), not to lobby or to debate much else than the narrow range of issues our party leaders will consider whether we're watching or not. Let the lawyers sort it out; me, I'm blogging.
As tempted as I am to question Scalia's motives for letting the people's deafening silence be heard, I'll close with the decidedly undemocratic suggestion that the silent majority is seemingly content to let the courts speak for it.
I have to admit, I get a little lost when talking about constructionist judges and original intent. The framers took their ispiration from both the world, and world history. Also, they were not creating a new religion that said, "Now that this has been written, all other texts and beliefs are wrong and blasphemous." I agree that a Canadian precident should not direct US law (but it should be worth .80 of US law), but to say that now that we have our own document we don't need to history or the world isn't right either. This is like saying, when I was three I needed my mom and dad, but now that I'm 18 I don't need mom and dad anymore, and all the answers to my problems are found within me. Business that have this attitude fail, people that have this attidude fail, and so do leaders. The framers tried to take the best that the world and history had to offer when creating this nation. We do them a disservice by thinking that the best stopped in 1776. We should continue to take the best to be the best.
I also have to say that this is where Scalia loses me. When he votes to undo Fourth Amendment protections becasue he feels its neccessary to fight drugs, he isn't looking at "original intent," he is demonstrating the "liberal inclination to wander away from original intent." Had he upheld the 4th, and I still don't see how anyone looking for origninal intent would vote the way he did, and said "Look, I hate drugs as much as the next guy, but the Constitution is very clear here. If you want to allow for uspecified searches of the citizens persons, houses, papers, and effects, get together with your fellow citizens and change the law." THAT, I would have respected. But he didn't. This gets back to my endless blog about why folks should be concerned with that ruling. As a side, so I can infect this post as well, you have a choice when flying. You can elect not to fly, and they tell you in advance that one, they will x-ray your bag, and two, when then hand search, they ask your permission. Big difference.
Philosophically there is no difference between a car search or an airport search. Both are unspecified searches of people not accused of any wrong doing for the purpose of preventing criminal behavior. No one has to drive, and with this law in effect everyone now knows that when they are pulled over they may be sniffed. The only difference I see is that the Blogger, quite reasonable, sees stopping terrorism as a bigger deal than stopping drugs. I agree with him. But if I were a 4th ammendment purist, I would feel abandoned by his willingness to accept the 4th ammendment violation that clearly is airport screening. If anyone thinks airport screening is acceptable, they are saying that there are times when security trumps the 4th. When that is established, then a discussion of the sniffing law becomes - is it reasonable to do it in THIS case? Which is probably what the authors intended when they chose a subjective term like "unreasonable".
Ah, philosophy, the last bastion of liberal thought. Let's play with philosophy. If the philosophical standard is "unspecified searches of people not accused of any wrong doing for the purpose of preventing criminal behavior" then there is no difference either for allowing the Feds to come in and search your house to see if you're stealing cable. Or to search you when you're out walking, after all, no one has to walk outside, you can get everything delivered. And you can pass a law so everyone knows that they'll be searched so they should have no complaints.
So again, let’s go to the books. The Fourth says, '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.' It’s not boiled down to unreasonable search and seizure, anymore than the First says "separation of church and state." What it says is that “Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof." Its also not "freedom from religion." The Fourth says the citizens are protected from "unreasonable searches and seizures" and here's how, oaths, affirmations and particular description. So it lays out the protection, and how to judge the protection. Doesn't mention anything about "expected privacy" or the "war on drugs." "Unreasonable" isn't the clause, or lever to undo the Fourth, the amendment is about what follows. And again, on flying. I can get to the airport, read the sighn saying that they're going to x-ray my bag, decide "no" and go home. When the cops pull me over for a minor traffic violation, I can't say, "I don't want your dog to sniff my car" and go home. The difference to me is extremely clear.
I'm still not sure what the reasoning is that allows us to say that airport searches are not a violation of the 4th ammendment. I understand that you don't have to get on the plane. You also don't have to get in your car. There are many things you don't have to do that if we got searched while doing them we would consider it an infringement on our rights. So the necessity of the activity does not determine if the 4th ammendment is in effect. If you disagree with that, I'd be curious to know why.
As far as the wording of the ammendment it is not clear to me if the parts are directly connected. To a novice like myself it seems like part one says, "no unreasonable searches", which as I've said allows for a discussion of "reasonable". Part two describes how warrents are to be issued. The language does not demand that the two ideas be linked. I'm not saying they shouldn't be, just that my poor understanding of grammer makes that appear debatable.
The 6-2 ruling against the 4th in the Sniff Case makes me lean towards the view that the ideas are often interpreted separately. But like a good parachute...my mind is open.
P.S. The Anchorman was a bad movie.
Now I get it, you hate to laugh. This explains much. By not liking Anchorman, your show that you don't like happy. This also makes clear that that time I saw you with that puppy, you weren't giving it mouth to mouth resuscitation, as you said, you were eating it.
As far as the Fourth, it’s the "and" between unreasonable searches and Warrants that provides the link. I interpret it to say, you’re protected from random searches AND here’s how. If you are to be searched they need a warrant, and that warrant must be backed by the following. This helps insure reasonableness because a search must be be well reasoned and verified by a judge.
Also, I'm curious what you're doing that you’re constantly searched?
I think you missed my point on flying. Your point seems to be "pass a law, let everyone know about it, and let the random searches begin." And necessity does play a huge part in Fourth related rulings. When the Supreme Court upheld the Alabama law allowing for random drug tests of high-school athletes, the key provision was that these athletes had a choice to play sports. It wasn't necessary.
"Probable cause" is what makes a search or seizure constitutionally reasonable, and a judicially issued warrant certifies probable cause. That's my understanding of what the 4th says, based also on my understanding of what Article III, Section 2 says in the original. Whether that's today's take on search and seizure constitutionality, I dunno. I imagine it's based on decades if not centuries of "probable cause" precedents and lots of judicial looks the other way when some underrepresented, undesirable schmo "smells guilty." Prosecutors and cops shop for such judges because "no" or "go" on a search comes down to the judge, or so it has always seemed to me on Law and Order (dong-DONG!!)
Like The UB, I see the Illinois v Twitchy Muel ruling as patently unreasonable, and there is a clear if not necessarily constitutional difference between me and my things being searched in traffic for drugs and me and my things being searched primarily for weapons and explosives at the airport.
Our Malone's looking for us to admit that none of us are strict constructionists unless it's reasonable, and what's reasonable is up for debate, both here and on the bench.
First, Stalin Malone, welcome to the "Club 11." I'm honored to share a table with you. Meetings are the first Wednesday of month. Please bring chips and napkins.
What I'm now curious about is whether you think this ruling upholds the "original intent" of the Fourth Amendment?
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