4th Amendment question

[Stephen Maturin]

Originally Posted by D. Scarlatti

What I was (and am) looking for is simply a literal, "textualist" reading of the Amendment.

Scalia and Thomas have a point. That sentence contains two independent clauses. The first sets forth a general standard of reasonableness that applies to all searches and seizures. The second sets forth the standards for issuing warrants, but says nothing whatsoever about when or under what circumstances a warrant is required. I haven't read a Fourth Amendment case since the early 90s, but I'll guess that Scalia and Thomas say you must look to the common law at the time the 4th was ratified to determine when a warrant is actually required.

On the other hand, the rest of the world has a point too. It is one sentence, not two. The clauses address the same subject, namely searches and seizures. Read as in integrated whole, the sentence thus appears to require a warrant in all circumstances (leaving aside judicially created exceptions such as hot pursuit, consent, plain view, etc.). It also appears that a warrant based on probable cause is necessary to support a finding of reasonableness, but not necessarily sufficient, i.e., a search conducted pursuant to a properly issued warrant can still be unreasonable given the right set of facts.

So, then, the "textualist" approach supports two completely different readings of the Fourth Amendment. Conclusion: "textualism" can be used as a tool of "judicial activism" and is therefore of the devil.

[alphamale]

BLAH BLAH BLAHHHH!!!

[livius drusus]

Originally Posted by viscousmemories

The way it's written it genuinely reads like two separate statements to me: One about an individual's right to be secure from unreasonable search and seizure, the second about the requirements for any warrants that entail search and seizure.

It read that way to me too, but even before reading about the history of it the simple "and" joining the sentences seemed wrong to me, like the actual conjunction which made the sentences make sense together was missing.

Lo an behold, it is.

[D. Scarlatti]

Originally Posted by Fencesitter

Yes, but does that mean that they're illiterate and/or can't look things up on Google as well?

vm is far from illiterate and of course anyone can look up whatever they want.

But that isn't the point. We are being told that the next Justice of the Supreme Court is a "strict constructionist" like Thomas and Scalia. The whole idea behind this textualist business is that judges are to approach the plain text of a statute - or in this case the Constitution - presumably without ideological preconceptions or even any sort of outcome in mind prior to applying their "strict" construing of the law to the facts.

As Counsellor Maturin and others have said, Thomas and Scalia have a point. What I was asking was for readers here to offer their impression of the amendment free from whatever considerations they might have already given to it previously, if at all.

[alphamale]

YAKITY YAKITY YAK YAK YAK

[viscousmemories]

Originally Posted by alphamale

YAKITY YAKITY YAK YAK YAK

You sound more like Rush Limbaugh every day.

[alphamale]

Originally Posted by viscousmemories

You sound more like Rush Limbaugh every day.

Ah! So you listen to him!

[Fencesitter]

Originally Posted by D. Scarlatti

vm is far from illiterate and of course anyone can look up whatever they want.

For anyone else that may have misinterpreted my words, that was not my point at all.

My point was that despite vm not technically having a legal background, he's very intelligent, literate and can do research. I would think any judge would be capable of the same despite their background.

Fence

[D. Scarlatti]

I think I already made note of that:

Originally Posted by D. Scarlatti

But that isn't the point.

Obviously I appreciate vm's efforts but that isn't what I was trying to get at.

[maddog]

Originally Posted by D. Scarlatti

Here is how the 4th Amendment to the U.S. Constitution reads:

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.

Let's call the green portion "the Unreasonableness Clause" and the red portion "the Warrants Clause."

Setting aside anything you might know about police procedure, caselaw, or Law & Order episodes, do you think that:

1) The Amendment requires a warrant for searches and seizures;
2) The relationship between the two clauses is "unclear";
3) If 2), why.

It's difficult for me to divorce the thing from an historical context. Without a particular history, there would be no need for the warrants clause at all. There might have developed other means of protecting someone from unreasonable searches and seizures. Another thing of which to be mindful -- everyone always talks about "search and seizure" as if they were the same. A search is one thing; a seizure is another. The reasonableness of each must be separately justified.

#598

[Dingfod]

There's been a whole bunch of seizure that I think has been unreasonable, done in the name of the War on Drugs. But, that's a subject for another thread.

[alphamale]

Did someone fart in here? Or just release sleeping gas?

[Crumb]

No, You just lifted your arms.

[Dingfod]

I put deodorant on this morning.

[Crumb]

You alphamale ignoring sumbitch.

[D. Scarlatti]

Originally Posted by Stephen Maturin

I haven't read a Fourth Amendment case since the early 90s, but I'll guess that Scalia and Thomas say you must look to the common law at the time the 4th was ratified to determine when a warrant is actually required.

In this case, they don't. Rather, Thomas gloms on to the fact that the majority equates a search involving a defective warrant with a warrantless search and takes pains to point out that they are constitutionally different and that a warrantless search can still be reasonable and thus in conformance with the 4th Amendment.

It seems to me that the following is more accurate in terms of the framers' "intent":

The Fourth Amendment provides that "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." (Emphasis supplied.)

These words are precise and clear. They reflect the determination of those who wrote the Bill of Rights that the people of this new Nation should forever "be secure in their persons, houses, papers, and effects" from intrusion and seizure by officers acting under the unbridled authority of a general warrant. Vivid in the memory of the newly independent Americans were those general warrants known as writs of assistance under which officers of the Crown had so bedeviled the colonists. The hated writs of assistance had given customs officials blanket authority to search where they pleased for goods imported in violation of the British tax laws. They were denounced by James Otis as "the worst instrument of arbitrary power, the most destructive of English liberty, and the fundamental principles of law, that ever was found in an English law book," because they placed "the liberty of every man in the hands of every petty officer." The historic occasion of that denunciation, in 1761 at Boston, has been characterized as "perhaps the most prominent event which inaugurated the resistance of the colonies to the oppressions of the mother country. 'Then and there,' said John Adams, 'then and there was the first scene of the first act of opposition to the arbitrary claims of Great Britain. Then and there the child Independence was born.'"

But while the Fourth Amendment was most immediately the product of contemporary revulsion against a regime of writs of assistance, its roots go far deeper. Its adoption in the Constitution of this new Nation reflected the culmination in England a few years earlier of a struggle against oppression which had endured for centuries. The story of that struggle has been fully chronicled in the pages of this Court's reports, and it would be a needless exercise in pedantry to review again the detailed history of the use of general warrants as instruments of oppression from the time of the Tudors, through the Star Chamber, the Long Parliament, the Restoration, and beyond. Stanford v. Texas, 379 U.S. 476, 481-482 (1965).