A blog devoted to law, politics, philosophy, & life. Nothing in this blog is to be construed as legal advice.

Friday, April 02, 2004

If numbers do not change meaning over time, then why must words?

Of course, one counter-argument is that although the meaning of numbers remain fixed, words do not have clear meanings. However, who argues that the Electoral College, Art. II, §1, cl.2 is unconstitutional in today's time. It is argued to be undemocratic when it leads to the election of a President who received 500,000 less votes than the loser. But no one argues that the Electoral College is unconstitutional. It is clearly articled in the text, after all. And yet we say that "nor shall any State deprive any person of life, liberty, or property, without due process of law", Amend. XIV, §1 creates substantive rights. How can this be? The words clearly indicate that the State may deprive us of life, liberty, or property, if it provides due process of law.

Why must some portions of the text be read literally while others must not?
The right to privacy

The pro-abortion forces think they have a monopoly on the term "the right to privacy," which means the right to kill the unborn. Very often some poll will come out showing that a supermajority of Americans support the right to privacy. And although no intelligent person believes that the right to privacy means the right to kill, a book I have been reading offers examples of what Americans traditionally regarded as the right to privacy.

Edward Bennett Williams, the preeminent lawyer of his generation wrote One Man's Freedom (Atheneum 1962). Before his 40th birthday, Mr. Williams represented, among other people, Jimmy Hoffa, Senator Joseph McCarthy, and Representative Adam Clayton Powell, Jr. His law firm remains prominent and stands as testament to his life's work - Williams & Connolly. The Index to this book lists six references to the "privacy, right to" - pp. 88, 91, 96, 97,102, 118.

Among the most notable as these: "We all have a vital stake in the preservation of the right to privacy - the privacy of the home, the privacy of your thoughts and words, the privacy of our conservations, both face to face and telephonic." Id. at 88. And "This [the Fourth Amendment] was the effort of this nation's founding fathers to protect the individual's right to privacy." Id. at 97

Chapter 6 (pp. 88-105) was titled, The Listeners at the Walls and deals with bugs and other surreptitious listening devices. Chapter 7 (pp. 106-121), The Party Line, argues that wire taps should be covered under the Fourth Amendment.

Certainly people may argue that allowing a doctor to cut open the skull of a fetus has to do with privacy (just as the person who commits murder in his own home may seek to do so privately) does not mean that they have the right to stake claim to the English language.

The living Constitution

Justice Kennedy recently said, "Had those who drew and ratified the Due Process Clause of the Fifth Amendment or the Fourteenth Amendment known the components of liberty in its manifold possibilities they might have been more specific. They did not presume to have this insight. They knew times can blind us to certain truths and later generations can see laws that once thought necessary and proper in fact serve only to oppress. As the Constitution endures, persons in every generation can invoke its principles in their own search for greater freedom." Lawrence v. Texas.

But we don't hear these arguments as to other Constitutional provisions. No one says, Article I §2, cl. 2 ("No Person shall be a Representative who shall not have attained the Age of twenty five Years") really means that a person must have reached a certain level of maturity before reaching office. And that today, people who are 25 aren't nearly as mature as someone of the same age two-hundred years ago - which is clearly true - and therefore the age of qualification must be raised. Or that "the executive Power shall be vested in a President of the United States," Art. II, §1, cl. 1 should change with our times: we maybe need two Presidents instead of one. Finally (but not exhaustively) no one argues that the Seventh Amendment be adjusted for inflation. ("In Suits at common law, where the value in controversy shall exceed twenty dollars, the right of trial by jury shall be preserved [ ].")

Race, One-hundred & twenty-nine years later.

In support of a 1875 bill to "protect all citizens in their civil rights," 18 Stat. 335 (1875), Congressman Butler had this to say:

"There is not a white man [in] the South that would not associate with the negro - all that is required of this bill - if that negro were his servant. He would eat with him, suckle from her, play with her or him as children, be together with them in every way, provided they were slaves. There has never been an objection to such an association. But the moment you elevate this black man to citizenship from a slave, then immediately he becomes offensive." Debate on 1875 Bill, 3 Cong. Rec. 940 (1875).

Thursday, April 01, 2004


Since I have been getting some high quality traffic lately, I want to refer the readers of the Greedy Clerk Board and How Appalling to my favorite web log, Crimlaw.

Ken Lammers is a fresh lawyer with a lot of talent. On his blog you can read a writing sample and closing argument from his different cases. Someday when he is big time, we can be proud to say, "We read his blog, when."

Expect more posting tomorrow.

Wednesday, March 31, 2004

Leggo my ‘ego

I have been reading with much laughter the How Appalling blog, which parodies How Appealing and the perceived lack of humility of its owner. This discussion here shows we all have a little too much ego in us. Bloggers, in general, have issues. We put sitemeters on our blogs. We Google our blogs. We see who is linking to us so we post that someone is linking to us. We remind ourselves to link to those who link to us (in hopes that they will link back to us).
My nightly to do list includes:
1. Google my full name “in quotes.” Google name without “quotes”; with middle name; with middle initial; without middle initial; with shortened version of my first name.
2. Breath sigh of relief when Overpundit does not show up as a hit with my name. My privacy is safe. Become frustrated when something I posted when I was nineteen (using foul language) is available for the world to see. After all, the world IS watching.
3. Reflect on No. 2. Realize that NO ONE cares who I am. And that those who do don’t care enough to Google me, especially given number of derivatives of my name.
4. Reflect on No. 3. Repudiate No. 3.
5. Look at my sitemeter. Realize that I don’t get very many daily hits.
6. Realize that I have a group of small but dedicated loyal readers. Continue the mission.
7. Reflect on No. 6. Realize I must be like Wittgenstein or Nietzsche. Look at favorable results in cases, acceptance letters from Top 25 law schools, and grades to validate self (because like the philosopher Berkeley, I am afraid that my worth as a person disappears when I turn away from these human accomplishments). Alas, the world doesn’t understand me.
8. Reflect on No. 7. Realize that my IQ barely qualifies me to attend the local tavern. Besides, I am not at MIT or Caltech studying cosmology or astrophysics. Instead, I am at law school. Even Judge Posner admitted, “Law is not the calling of geniuses.”
9. Reflect on No. 8. Repudiate No. 8.
10. Remind myself to repeat Nos. 1-9 first thing in the morning.

UPDATE: As I look at this list, which was meant as a joke, I see some truth in it. It is amazing how much worth we place on material things. I mock people who buy expensive clothes, houses, and cars – must keep up with the Smith’s. Yet don’t I do the same thing? Don’t I say, “Boy, no one I know has had a brief lead to X result. No one scored this high a grade in Y. No one I know has X’s direct phone number or worked with lawyer Z.” It really makes me sad to realize how much weight I place on these things.

Kant said that when you sit in a dark room, alone, only then are you with your true self. Can this be? Can we be – i.e., exist in our own minds – attached from worldly trappings or accomplishments? What about spiritual accomplishments. Don’t we too often turn these into worldly trappings by thinking, “I am enlightened. I understand this scripture or solved this Zen riddle?”

I think that law school turns people into status whores. Before law school I reflected on life, truth, goodness: I now consider those “fluffy” subjects left to people not smart enough for the rigor of law. And yet my mind was sharper pre-law. A good philosophy graduate student would smoke any law professor or lawyer in a debate. I would put my reputation on a Princeton graduate student against Lawrence Tribe, Alan Dershowtiz, Doug Kmiec, Ken Starr, etc. Contrast the journal Mind with the Harvard Law Review. Which is clearer, more persuasive? Contrast a book by Simon Blackburn or Daniel Dennett with any legal thinker, including Posner.

I met Simon Blackburn, Crispin Wright and other luminaries of philosophy. Their egos are microscopic compared to that of the average lawyer or law student. The further up the totem pole, the brighter lawyers think they are. A Yale graduate who now professes law or works at a large law firm is almost intolerable. But could he or she outsmart a Rutgers graduate student in philosophy? Yeah, right.

What is wrong here? Why the huge egos in the law when the real geniuses study theoretical math, cosmology, astrophysics, physics, among other things?

Tuesday, March 30, 2004

A new blog

This new blog, Crime & Federalism, looks promising.

Monday, March 29, 2004

Excepting their way around the Fourth Amendment…

Most of us do not decide to gain thirty pounds, to become intolerably grouchy, or to become immoral. Rome was not built in a day. Nor did Rome crumble in a day. Rather, as C.S. Lewis said, “The road to hell is a gentle slope.” So too is the road to tyranny.

The text of the Fourth Amendment…

The Fourth Amendment provides that “The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be infringed, and no Warrants shall issue, but upon probable cause, supported by oath or affirmation, particularly describing the place to be searched and the person or thing to be seized.” The Founders could have worded the Fourth Amendment differently. It could have read, “The police can search and seize persons and things whenever it is reasonable.” In other words, it could have omitted the Warrant Clause as well as place the emphasis on law enforcement goals, rather than individual rights.

However, the Fourth Amendment was enacted by former criminals, namely revolutionaries who committed treason against Great Britain when they declared their independence, tax evaders who would not pay tea tax, and smugglers who imported goods without paying duty. Naturally, they had a catch-me-if-you-can attitude. The Fourth Amendment italicized if you can by prohibiting warrantless searches and general search warrants (which the British had used to enter ships looking for evidence of general wrongdoing. Our Constitution requires that the police have probable cause that you are committing a crime, a specific crime. It is not enough for law enforcement to say, “Boys, let’s find something out about Smith”). Thus, narrowly drawn search warrants are favored by the Fourth Amendment.

Because of the conjunctive, “and no Warrants shall issue” the Court originally reasoned that a search without a warrant was presumptively unreasonable. After all, if a search without a warrant was generally reasonable in the eyes of the drafters of the Fourth Amendment, then the Warrant Clause would have been unnecessary verbiage.

Each time a federal court provides that a warrantless search is reasonable, it makes the Warrant Clause so much dicta. Why obtain a warrant (which requires judicial approval and probable cause and limits the scope of a search) when one of a dozen exceptions apply? An exception gives the officer free reign.

Nonetheless, we can all imagine necessary and proper exceptions to the general warrant requirement. For example, if a police officer saw a man running from a bank with bags of money, it would be reasonable – indeed, theoretically required – for him to seize the culprit without a warrant. However, this exception was too narrow for law enforcement. Rarely do crimes solve themselves. Rarely do police have direct evidence of wrongdoing. It takes hard work to solve crimes. Good sleuthing takes time. The Fourth Amendment got in they way: it made the work harder. Something had to be done. The courts were willing to help.

Beginning with Terry v. Ohio, our Fourth Amendment protections were first narrowed, then excepted. In Terry the Supreme Court held that police may seize someone without probable cause: all that was necessary was reasonable suspicion. However, this seizure must be brief. Somehow, the brevity of a seizure exempted it from the Fourth Amendment’s text. The Court then went full force, recognizing at least eight more exceptions to the Warrant Clause. This brings us to United States v. Gould.

United States v. Gould

The police had a tip that Gould was up to no good. By all accounts he was a scoundrel. None of us would like him. If we saw him getting beaten up in a bar, we would cheer.

The police knew that Gould rented a small trailer home (14 by 16 feet). They went to his apartment to talk to find out what he was up to. They did not have a search or arrest warrant. Based on the information the police had, they probably could have obtained a search warrant.

They knocked on the door to the trailer. Gould’s friend answered. The police officer did not know this friend. The police asked if they could come in. The friend said yes. The police asked where Gould was. The friend said, he is in his the bedroom sleeping. The friend said you can go search Gould’s bedroom for him.

Gould’s friend did not own or rent the apartment. Gould’s friend certainly did not own or rent the space where Gould was sleeping. Nevertheless, the police were allowed to search Gould’s private articles because it was “reasonable” for them to think that the friend could consent to this search. The apparent authority exception applied. Why was it reasonable?

Did the police ask if the friend could consent to the search? Did they ask the friend if he rented the apartment or otherwise was in control of it? Did they ask him whether Gould gave him access to Gould’s bedroom?

No. The police need not ask the person consenting to the search if he has the authority to consent. The apparent authority exception still applies. It is reasonable to draw conclusions without facts. It may frustrate law enforcement to find out that the person consenting to the search has no right to do so. The Fourth Amendment must give way to the practicalities of life.

Bedroom eyes…

The police then walked down the hall towards Gould’s bedroom. The door to his bedroom is open. The police can see in plain view that Gould is not sleeping in his bed. They walk in anyhow.

The police decide that their safety requires them to search under his bed and in his closets to see if Gould is hiding. The three armed officers said they feared for their safety. The police found guns in Gould’s closet. Since Gould was a convicted felon, he committed a federal crime by possessing firearms.

Gould was rotten to the core. Nonetheless, the police were in his bedroom without a warrant and without his consent. The search is allowed under the protective sweep exception to the Fourth Amendment. It took two exceptions to the Fourth Amendment, but it’s okay since the police got the goods.

Soundly reasoned…

The problem with Gould is that the reasoning is not overly flawed. It makes a few missteps but is not wholly fallacious. The problem with Gould is that the reasoning is reasonable because we have diverted from the text of the Fourth Amendment. One exception here, one exception there, and before long, the Fourth Amendment does not apply.

This scary language…

“If the fact that Gould was not in his bed or otherwise visible in the bedroom can be taken as signifying a refusal on his part to talk to the officers and in that sense a termination of their consent to be in the mobile home for that purpose, nevertheless that does not mean that the officers could not conduct the sweep.” (footnote omitted) Slip opinion at 30-31. In other words, even if you tell the police to get out of your house, they can search it on their way out.


Imagine an acquaintance (re: not a close friend) knocks on your door looking for you. He looks in the bedroom and sees you’re not there. This person then walks into your bedroom and looks through your stuff. Is that reasonable? Would you feel that your right to privacy was violated? Would it matter if your friend said it was okay for the acquaintance to search through your things?

Imagine a complete stranger comes looking for you, and not finding you, looks through your things. Would that be reasonable? May I come over to your house to look through your things? If your friend allows me to, does it matter?

The police are strangers. The power of the government is not to be trusted. The Founders recognized this, which is why we have federalism, separation of powers, and a Bill of Rights. The Reconstruction Era United States recognized that states, like the federal government, are not to be trusted with our liberty. And so they enacted the Fourteenth Amendment, which was intended to incorporate the Bill of Rights to the states.

No apologist…

I am not an idealist or radical civil libertarian who things that even scoundrels have rights. I am not that enlightened (though I wish I were – after all, in God’s eyes we are all equals). But I am selfish about my rights. I do not want the police – or anyone – going into my apartment without a warrant and searching through my things, even though I am quite boring and don’t even own pornographic materials or subversive books like Paine’s Common Sense.

However, I have a near-religious devotion to the Constitution. Thousands of men and women died so that we may be free from the intrusive federal government. Half a million more died so that states would have their power over us limited. The Founders recognized that we the people may decide that the Constitution is no longer a good fit. Consequently, it allows itself to be amended: we the people (by 2/3 votes of each house of Congress and popular vote of 38 States) can correct anything we don’t like. It is for you and me – not unelected federal judges – to decide.

As Benjamin Franklin walked out of the Constitutional Convention, a woman asked, “What have you wrought?” He said, “A Republic, if you can keep it.” It seems that we can’t.

And slowly we decline…

The Fourth Amendment has been re-written

"The right of the police to search and seize shall not be infringed, and no warrant shall be necessary if the police officer believes one is not necessary."