Patriot Act Outrages Continued

Fourth Amendment: "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."

New York Times story, "Republicans Seek to Widen F.B.I. Powers":

Senate Republican leaders are pushing once again to expand the Federal Bureau of Investigation's power to demand records in terrorism investigations, as negotiations over the future of the sweeping law known as the USA Patriot Act reach a critical stage, officials said Tuesday…Among the more contentious ideas raised in the meetings, participants said in interviews, was the idea of expanding the F.B.I.'s power to issue administrative subpoenas to demand records in terror investigations without a judge's approval.

This is outrageous. Am I to conclude that the our representatives can't read and understand the plain language of the document they are pledged to uphold?

Comments

[Uncle Sam]

Have you ever thought otherwise?

[Ron Bailey]

I'm trying to retain my charming naivete. Sigh.

[Daniel]

I didn't see people getting pissed off beforehand when administrative subpoenas were permitted in a whole slew of federal investigations. At least these will be permissible when its terrorism that's being investigated, as opposed to medicaid fraud, securities fraud, etc.

Also, the whole idea of being "without a judge's approval," still allows a subpoena to be challenged in federal court, only after its been issued. While this would violate the letter of the 4th Amendment, this is towards the bottom of the outrage-meter.

[gaius marius]

my charming naivete

i can't wait until the defenders of the faith show up here to tell us all how america is the strongest, freeest, lawfulest, bestest nation in the history of nations.

please. this place is a budding lawless dictatorship. does that scrap of parchment even count for anything beyond nostalgia value anymore? even the people who purport to want to turn back the clock for it spend the rest of their time championing the imperial president who declares wars on his own, betraying their true intentions.

[NoStar]

THE CONSTITUTION: Not worth the parchment it's written on!

[Wilson]

It does no credit to our cause to have unbridled hyperbole flying around.

While it's clear the Patriot act is bad, I believe you are mad if you honestly believe that the United States is a "budding lawless dictatorship."

We can protest the Patriot Act without pretending that we now live in Soviet Russia, because we don't. The reality of the situation is that our nation is still quite strong on civil liberties and the patroit act has no impact most of the time.

If we argue against it on realistic terms (slippery slope arguments and other forward looking arguments that emphasize the risks and rewards of such legislation) rather than throwing around hyperbole that does insult to people who actually have had to endure tyrannical totalitarian regims, maybe we'll get somewhere.

[Lowdog]

I'm with Ron, the language of that particular Amendment is about as clear as it can be, yet (some) people act like it's not.

[mediageek]

Wilson, a friend of mine is a Russian immigrant.

Lately he's been somewhat disturbed by how much the US is starting to resemble the USSR.

[chuck]

"I'm with Ron, the language of that particular Amendment is about as clear as it can be, yet (some) people act like it's not."

Well it says "no warrants shall issue," and does not specify who must issue the warrant. If an administrative agency issues the warrant (simply called by another name in this case), how does this violate the letter of the amendment?

[Lowdog]

I'm not too concerned about who does the issuing, either, as long as they follow the rest: "...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."

I think that's where a lot of short cuts have been made recently.

[James Anderson Merritt]

Chuck says, "Well it says 'no warrants shall issue,' and does not specify who must issue the warrant. If an administrative agency issues the warrant (simply called by another name in this case), how does this violate the letter of the amendment?"

I'm betting that it takes a judge to rule on "probable cause."

Folks, short of bloody revolution, our only recourse seems to be to vote out people who can't read and vote in people who can, and who can also convince us that they take proper meaning from the plain language of the Constitution.

Everybody line up and count off by twos. Group 1: Make sure the elections aren't rigged. Group 2: Make sure attractive candidates who can read, understand, acticulate, and actually uphold the plain language of the constitution stand for election. Beyond that, it's up to the voters and may providence favor the literate, minimalist government side.

[James Anderson Merritt]

Oh yeah. Group 2: You should also actively work to defeat politicians-as-usual, tripping up every such election or re-election campaign you can.

[Ron Bailey]

From the Findlaw site:

"Issuance by Neutral Magistrate .--In numerous cases, the Court has referred to the necessity that warrants be issued by a ''judicial officer'' or a ''magistrate.'' ''The point of the Fourth Amendment, which often is not grasped by zealous officers, is not that it denies law enforcement the support of the usual inferences which reasonable men draw from evidence. Its protection consists in requiring that those inferences be drawn by a neutral and detached magistrate instead of being judged by the officer engaged in the often competitive enterprise of ferreting out crime. Any assumption that evidence sufficient to support a magistrate's disinterested determination to issue a search warrant will justify the officers in making a search without a warrant would reduce the Amendment to a nullity and leave the people's homes secure only in the discretion of police officers.'' These cases do not mean that only a judge or an official who is a lawyer may issue warrants, but they do stand for two tests of the validity of the power of the issuing party to so act.'' He must be neutral and detached, and he must be capable of determining whether probable cause exists for the requested arrest or search.'' The first test cannot be met when the issuing party is himself engaged in law enforcement activities, but the Court has not required that an issuing party have that independence of tenure and guarantee of salary which characterizes federal judges. And in passing on the second test, the Court has been essentially pragmatic in assessing whether the issuing party possesses the capacity to determine probable cause."

[keith]

I wish I lived in a country where we were ruled by magic and some old ju-ju man who wrote policy based on the reading of sheep innards and bone shards. Or maybe a President who goe son TV and constantly asks his creepy ventriloquist dummy for advice. It wouldn't be much less absurd than what we have now.

[quasibill]

"but the Court has not required that an issuing party have that independence of tenure and guarantee of salary which characterizes federal judges"

If I remember correctly, the one big requirement in that area is that the neutral magistrate not receive compensation based upon the outcome of his decision. In that case, the magistrate got paid for issuing warrants, but nor for denying them. If my memory is correct, SCOTUS said that that was not a neutral magistrate. Other than that, I think it is pretty wide open.

[chuck]

Ron, you wrote:
"Am I to conclude that the our representatives can't read and understand the plain language of the document they are pledged to uphold?"

Now you resort to sources outside of the "plain language" of the document, i.e. decisions of the Supreme Court. Perhaps the representatives have a different interpretation of this amendment, as I think they are constitutionally entitled to have as members of a co-equal branch of government. They can plausibly read the text of the amendment as permitting the FBI to conduct a search if an FBI agent finds that he has probable cause, swears to the facts on which he making that finding, and writes down on a signed paper the things he is searching for.

[chuck]

And, btw, if you're going to rely on Supreme Court interpretations for authoritative meaning of the Constitution, then I'd remind you that the Court has found administrative subpoenas constitutional.

[Tom Crick]

While it's clear the Patriot act is bad, I believe you are mad if you honestly believe that the United States is a "budding lawless dictatorship."

G. Marius argues that Western Civilization is declining, and citing how little care the government pays to our Constitutional rights as in this instance does his argument well.

We can protest the Patriot Act without pretending that we now live in Soviet Russia, because we don't.

...he said it was a "budding lawless dictatorship. Should we wait for it to get as bad as Soviet Russia before we start calling it what it is?

The reality of the situation is that our nation is still quite strong on civil liberties and the patroit act has no impact most of the time.

It's fascinating how little people recognize how big of an impact the Patriot Act has. Anybody who's refinanced their house recently knows that's bunk. ...Anybody who's tried to open a bank account for their business knows that's bunk. ...Anybody who's applied for a business loan recently knows that's bunk.

I also find it remarkable that people cite the relative paucity of public cases demonstrating "abuse" of the Patriot Act. ...Especially considering that law enforcement had the ability to slap gag orders on the people and companies from whom they collected information.

If we argue against it on realistic terms (slippery slope arguments and other forward looking arguments that emphasize the risks and rewards of such legislation) rather than throwing around hyperbole that does insult to people who actually have had to endure tyrannical totalitarian regims, maybe we'll get somewhere.

There are people in both the Bush Administration and congress who would expand the powers of law enforcement at the expense of our Fourth Amendment rights. ...Is that hyperbole?

[linguist]

On the commute this morning I read a neat little tongue-in-cheeck call for us to have a referendum on keeping the Constitution.

http://www.redeyechicago.com/bazer.htm

[Ron Bailey]

Chuck: Good points, but we certainly don't need to go further down the road of administrative warrants. At some point the interpretation of the 4th Amendment becomes Orwellian enough that any search or seizure by the authorities is "reasonable" just because they say so. In any case, my main concern is that I doubt that the FBI would be "neutral and detached" in issuing to itself administrative warrants.

[gaius marius]

Soviet Russia

isn't the only kind of lawless dictatorship. simply because we haven't become openly genocidal doesn't mean we aren't devolving quickly into despotism, mr wilson.

Lately he's been somewhat disturbed by how much the US is starting to resemble the USSR.

it is not there yet, i'm happy to claim, mr mediageek -- but i think we exaggerate to ourselves just what living in a dictatorship must feel and look like, to the extent that we cannot recognize anything that is still despotic but more subtle than what one sees in hollywood flicks.

[Dan]

It isn't that we're a budding lawless dictatorship; it is that we are a nation of laws the meaning of which is open to Humpty-Dumpty interpretation. And I fear that our elected representatives don't read the US Constitution, state constitution, county charters, or other pertinent documents.

[zach]

..if more people vote no than yes, then we'd be up (a terrible word you can't use in a newspaper) creek without a constitution.

haha, fantastic.

[gaius marius]

a nation of laws the meaning of which is open to Humpty-Dumpty interpretation

is materially no different than lawlessness. it doesn't matter what the law says if it can be reinterpreted at will without reference to precedent -- a la the alberto gonzalez torture memo, which essentially legalized what had been illegal because the president said so.

a place where things like that are happening -- without any complaint from any other branch of government, it might be noted, so subservient have they become to the imperial presidency -- is in fact a budding lawless dictatorship.

[Tom Crick]

Ron Bailey, ...or anyone else for that matter.

Is there any publicly available information regarding the number of bank accounts, business loans, home refinancings, etc. that have been rejected on Patriot Act grounds? ...Indeed, is the FBI effectively approving or rejecting such business transactions now? ...and if they are, how would we know?

[Rick Barton]

It's hard to see how expanding the F.B.I.'s power to issue administrative subpoenas to demand records without a judge's approval makes us any more secure vis a vis terrorists. It's easy to see how it makes us much less secure vis a vis our government.

The main thing is that is contra our constitution.

[Tom Crick]

The gag orders obviously complicate the amount of available information. ...but it would be interesting to try an experiment.

If we knew one of the people who somehow mistakenly got on the do-not-fly list, we could see what happens when they try to open a new business checking account, apply for a business loan and refinance their home.

[Pembrooke]

...so, what is the specific 'right' guaranteed by the 4th Amendment ??

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That specific 'right' is rarely even stated in the commonplace discussion trivia of government-searches.

All Congressmen, SCOTUS justices, the President, and everybody in the U.S. military is solemnly sworn to uphold 'that' right --- How are they doin' so far ??

{...have you been to a U.S. airport, lately ?}

[chuck]

Ron,
"my main concern is that I doubt that the FBI would be "neutral and detached" in issuing to itself administrative warrants."

Again, the text of the Constitution contains no requirement for a neutral and detached decision-maker.

"but we certainly don't need to go further down the road of administrative warrants."

This is a policy argument, not a constitutional one. You can't criticize Congressmen for acting unconstitutionally, as you did, on policy grounds.

[R C Dean]

the language of that particular Amendment is about as clear as it can be

Yeah, not like the others. I mean, "Congress shall make no law . . ." - WTF does that mean?

[Tom Crick]

"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."

----The Fourth Amendment

They can plausibly read the text of the amendment as permitting the FBI to conduct a search if an FBI agent finds that he has probable cause, swears to the facts on which he making that finding, and writes down on a signed paper the things he is searching for.

----Comment by: chuck at October 19, 2005 02:45 PM

I'm no constitutional scholar, but I don't see how we can be "secure" in our persons, houses, papers and effects against "unreasonable" searches and seizures when administrative warrants are issued and probable cause is documented in an unreviewable manner.

[chuck]

Tom,
The simple answer to that is administrative subpoenas are reviewable.

[Lowdog]

RC - yeah, I hear you. That's why I said about as clear as it can be.

But then, I think the Second is pretty goddamn clear, too, and people have a hard time with that one.

[Tom Crick]

The simple answer to that is administrative subpoenas are reviewable.

By whom?

[thoreau]

Lowdog-

The only problem with the 2nd is that the "well-regulated" part got thrown in. I'd have simple said "The right of the people to keep and bear arms shall not be infringed." Or, if you absolutely insist on having an explanatory note in there, I'd say "The capacity for self-defense being essential to the security of free people, the right of the people to keep and bear arms shall not be infringed."

[Depressed MPA Student]

I don't see things getting any better. Just last night I had a me-against-everyone-else moment in a class for an MPA program. It was amazing to me how many people believe that you don't have rights unless it is explicitly listed in the Constitution.

classmates: "Privacy? we can't find the word privacy in the bill of rights - y'know - the part of the constitution where you are given your rights."

These people want to be the future leaders of governments. I guess it is unpopular to hear how unpowerful their future position is supposed to be.

[Ron Bailey]

Chuck: A quick question--So the 4th Amendment really doesn't much restrain the government's ability to conduct searches and seizures? That might surprise the Framers a bit.

[chuck]

By Article III courts. Doe v. Ashcroft, 334 F. Supp.2d 471 (S.D.N.Y 2004) is a recent example of a court granting such review.
Even if courts did not grant judicial review though, there is no requirement for it in the amendment's text. A right to be "secure" against "unreasonable" searches does not necessarily translate into a right of judicial review. The representatives could still argue that the decisions of FBI agents, subject to review within the hierarchy of their organization, are sufficient to protect the right.

[chuck]

Ron,
I haven't had the chance to chat with any Framers recently. I'd sure love the chance if you have any of their numbers. I have to go by what they wrote in the Constitution.

[Lowdog]

thoreau - yes, I know. But to me, that part of the Amendment is a total throw-away. It has nothing to do with the meaning of the sentence.

At worst it says (to me) that both a well-regulated militia and the right of the people to keep and bear arms, shall not be infringed.

But that's just me.

[Pembrooke]

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....the 4th Amendment was a direct result of the hated British Royal "Writs of Assistance" -- representing 'general' search-authority/warrants for British Colonial rulers in America. Thus, they had unchecked general 'administrative' authority to search Colonial American homes, businesses, papers, etc. whenever the mood hit them -- and they used that search-authority often & roughly.

Those "Writs of Assistance" (general search warrants) were arguably the proximate cause of the American Revolution.

The TSA, similarly, has been somehow handed 'general' search authority against all airline passengers -- with no need for warrants (judicial nor administrative) ... and no need for even the slightest suspicion of wrongdoing by the passengers being stopped & searched. That 'general' government search-authority is now being extended to all types of transportation -- including walking-down-the-street or taking a subway train in NYC.

It's called squaring-the-circle in Federal-legal-speak.

[R C Dean]

That might surprise the Framers a bit.

C'mon, Ron, get with the program. Nobody cares what the authors of the document meant. I mean, geez, how could considering what the author(s) of a document thought by consulting their voluminous contemporary writings give you any insight at all into how to interpret the thing.

Its a Living Constitution! I have to walk my copy twice a day or it messes on the carpet.

[Tom Crick]

A right to be "secure" against "unreasonable" searches does not necessarily translate into a right of judicial review. The representatives could still argue that the decisions of FBI agents, subject to review within the hierarchy of their organization, are sufficient to protect the right.

My understanding is that the Patriot Act provides for the ability to slap gag orders administratively as well, is this not so?

How do we know that the hierarchy of their organization reviews every administrative warrant, much less, actually reviews instances of abuse?

What is the purpose of the Fourth Amendment's oath, affirmation and description requirements?

[Tom Crick]

On another tack, what exactly do we gain by removing the judiciary from the process?

[gaius marius]

Nobody cares what the authors of the document meant.

literally no one -- as the originalists sure don't give a damn what madison had to say if it keeps them from reorganizing government as a jacobin dictatorship of vox populi, so-called.

[Tom Crick]

Indeed, from the ACLU's web site:

"The USA Patriot Act expands law enforcement's ability to conduct secret "sneak and peek" searches of your home. Investigators can enter your home or office, take pictures and seize items without informing you that a warrant was issued, for an indefinite period of time. (SECTION 213)"

In such instances, how can we know that the government conducted the search with the proper respect for our Fourth Amendment rights?

"USA Patriot Act gives law enforcement broad access to any types of records--medical, financial, gun, library, educational, sales, etc.--without probable cause of a crime. It also prohibits the holders of this information, like librarians, from disclosing that they have produced such records, under threat of imprisonment. ... (SECTION 215)"

I've been asking about how to review for probable cause, but here it looks like probable cause is no longer necessary. ...Is the ACLU wrong about Section 215 of the Patriot Act?

...Oh, and once again, how would we know about abuses if the people who provide the information are threatened with imprisonment for talking about the search and the people who are being searched never know they're being searched?

Out of curiosity, can information obtained via such a search be used in court?

"SEIZE A WIDE VARIETY OF BUSINESS AND FINANCIAL RECORDS, and in certain instances access the membership lists of organizations that provide even very limited Internet services (message boards on your church website for instance) using "national security letters," or NSLs, which are issued at the sole discretion of the Justice Department. The Patriot Act expanded access to these NSLs, which also impose a blanket gag order on recipients and are not subject to judicial review. (SECTION 505)"

Again with the blanket gag order! ...and I find myself wondering if the good people at Hit & Run have ever been asked by the FBI for a commenter's IP Address--not that they could tell us if they had.

http://action.aclu.org/reformthepatriotact/primer.html

Is the ACLU wrong about all of this?

[chuck]

"Nobody cares what the authors of the document meant. I mean, geez, how could considering what the author(s) of a document thought by consulting their voluminous contemporary writings give you any insight at all into how to interpret the thing."

These writings were never enacted. If you really want to use an original intent argument though, don't assume so quickly that you know what they really meant. Remember, the Fourth Amendment was written in a time before there were investigative law enforcement agencies. Criminal investigations were by judicial officers, who issued warrants to their constables, who then conducted the search with no discretion of their own. This is a far cry from how the criminal process works today, and it is an anachronism to try to apply it. Also, the historical evidence, and the actual wording, suggests that only houses, and the things in them, were intended to be protected. The law of the time allowed for warrantless searches of commercial premises. There is more that I'm sure would surprise you, but I don't have the time to write an essay

[Tom Crick]

"USA Patriot Act gives law enforcement broad access to any types of records--medical, financial, gun, library, educational, sales, etc.--without probable cause of a crime. It also prohibits the holders of this information, like librarians, from disclosing that they have produced such records, under threat of imprisonment. ... (SECTION 215)"

So, after further review, my understanding is that Section 215 of the Patriot Act makes it so that it is no longer necessary to establish "probable cause" so long as the FBI says that the purpose of the search is "to protect against international terrorism or clandestine intelligence activities."

Am I wrong here? This applies to American citizens, right? ...Is this consistent with the "probable cause" stipulation in the Fourth Amendment?

[chuck]

Tom,
Actually, it doesn't give the FBI search authority. It is an order to the person to produce the documents. The FBI isn't authorized to actually physically search a premises.

[Uncle Sam]

It seems to me that what most constitutional oath takers mean when the take the oath is to protect the political order, obey their superiors, and take down the scumbags as needed.

[Ken]

Very clever Chuck.
But are to assume that the legislature is free to interpret every word of the Constitution and is bound by no other authority? They could interpret warrant as the word "OK" written on a napkin by a cop before he searches...Or unreasonable as whatever the cop thinks is OK. Makes one long for an imperial judiciary!

[Chuck]

Ken,
By what authority does the Supreme Court constrain Congress? Its claim to rightfully interpret the Constitution is, at most, no stronger than that of Congress. If it has any such claim, how should it go about interpreting it? Should it look at original intent? If yes, then why should the intentions of dead people have any authority of us today? Should it look at the public's current opinion on what the constitution should mean? If yes, then isn't the democratically elected Congress better suited to this task than the unelected and elite Court?

[Uncle Sam]

What is the purpose of the constitution and what is the purpose of constraint of government power?

[Ken]

Chuck-
I think the Judiciary does have a strong claim to interpret the Constitution over the Legislative and the Executive. Historically I think there is evidence that the Founders believed in some kind of functional or co-equal interpretation (for a good defense of this view see Matthew Franck's Against the Imperial Judiciary), however at times they seemed to feel otherwise. Like most men they were confused about a lot of things, and this was one of them. Philosophically though it is easy to see why the Court should interpret the Constitution: because it is a document meant to reign in majorities, which is exactly what a legislature represents! We have to have a somewhat anti-Democratic branch for this task, as the goal of the Constitution is often anti-Democratic (the protection of minority rights, in the racial, religious, political sense). The USSR and Communist China do and did not have judicial review; they, like you, think that the legislature should review itself. How did that work?
There are other good reasons to choose the judiciary for this task. Whatever else their faults, judges work within certain professional systems such as stare decisis, common law principles and the like which tend to restrain them (even questionable rights like privacy had to be grounded in the text's provisions, i.e., the 3rd, 1st, 4th and 9th Amendments). Secondly, the judiciary is REACTIVE only. They can strike down but they cannot promulgate. The legislature can pass a law tomorrow outlawing red hair, or the executive could move on such a thing. Unless someone brings a suit though Courts cannot touch such stuff.
You then ask, even if we accept the Court's authority, then why should they look to the intent of "dead men?" The Constitution protects minority rights, but it did so at the bequest of a past majority (the beauty of our democratic system, one that hampered democracy in a democratic fashion, thus fulfilling the idea of rule of the people while protecting minorities) which passed the provisions in a legitmate way. The Court should follow the intentions of the past majorities until the current ones do the same (i.e., amend the Constitution).
Now, I get to ask one question of you (only fair I should think?). If what is Constitutional is whatever a majority in Congress feels is Constitutional, then in what way does the Constitution limit government? As a nagging conscience? I'm afraid I want something more solid!

[Kahn]

Sorry Ken, but in the end that nagging conscience is as solid as it gets. No document can ever be a substitute for the intentions of those who rule.

[Tom Crick]

Actually, it doesn't give the FBI search authority. It is an order to the person to produce the documents. The FBI isn't authorized to actually physically search a premises.

Here's the pertinent excerpt from Section 215:

SEC. 215. ACCESS TO RECORDS AND OTHER ITEMS UNDER THE FOREIGN INTELLIGENCE SURVEILLANCE ACT.

Title V of the Foreign Intelligence Surveillance Act of 1978 (50 U.S.C. 1861 et seq.) is amended by striking sections 501 through 503 and inserting the following:

SEC. 501. ACCESS TO CERTAIN BUSINESS RECORDS FOR FOREIGN INTELLIGENCE AND INTERNATIONAL TERRORISM INVESTIGATIONS.

(a)(1) The Director of the Federal Bureau of Investigation or a designee of the Director (whose rank shall be no lower than Assistant Special Agent in Charge) may make an application for an order requiring the production of any tangible things (including books, records, papers, documents, and other items) for an investigation to protect against international terrorism or clandestine intelligence activities...

...................................

When I wrote:

So, after further review, my understanding is that Section 215 of the Patriot Act makes it so that it is no longer necessary to establish "probable cause" so long as the FBI says that the purpose of the search is "to protect against international terrorism or clandestine intelligence activities."

...I didn't mean to suggest that the FBI would search per se. Once again, the Fourth Amendment 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."

----The Fourth Amendment

The Fourth Amendment states that no warrant shall issue but upon probable cause. Does Section 215 of the Patriot Act, which apparently authorizes the FBI to obtain warrants without probable cause, violate the Fourth Amendment?

Pending something persuasive to the contrary, my answer is yes.

[Ken]

Kahn-
The Constitution IS the intentions of those that rule. It was passed and ratified by a majority in a letitimate way. In some cases later majorities amended the document, and now those amendments are law (the intentions of those that rule). Until the entire document is amended in the proper fashion it is the legitmate law especially if one values democratic rule.

[gaius marius]

The USSR and Communist China do and did not have judicial review; they, like you, think that the legislature should review itself. How did that work?

this is a fundamentally important point in addressing the basically populist impulses that are embodied in movements like originalism. men like scalia spend a lot of time crafting their opinions to limit or eliminate the power of the court -- working in the direction of a reversal of marbury v madison, even if they never get there.

such an event would essentially constitute an open default on the balance of powers as we know it, and be a major step toward populist totalitarianism.

[Dave W.]

I don't think the 4th is that clear, at least standing by itself.

The most obvious criticism is that it doesn't say when (if ever) "Warrants" are required.

Another obvious latent issue is that it doesn't mention article I courts, Article III courts, magistrates and others that we have come to expect to see often in this context (thanks to "liberal" 20th cent SCOTUS???).

beyond some of these big issues that the Constitution clearly should have addressed in the 4th, there are clearly other issues that were meant to be left vague, such as what an oath is, what an affirmation is, probable cause of what.

It always amuses me when people (usually non-lawyers) say that rules are easy to draft or interpret. No they are not. They never are and the 4th is no exception.

That said, none of the foregoing is meant as a criticism of Mr. Bailey's original point about proposed violations of the 4th. Even though the 4th has its shadows and penumbras and interpretational issues (just like any other legal provision), some violations will still be crystal clear.

[Pro Libertate]

Frankly, I think the biggest problem here is the federalization of law enforcement. Severely limit that, and the chances of the U.S. ever becoming truly totalitarian will be greatly reduced. The states could handle plenty on their own, if the feds weren't constantly interfering and pontificating. Not to mention the fact that the lion's share of our taxes go to the federal government, which makes no freakin' sense at all to me. No wonder states and municipalities can't do anything on their own and have to go to DC, hat in hand, to beg for funding.