I love reading smart non-fiction writers. I love finding a flaw, or an unexplained item, then having the writer point it out and polish it away.
The writer says, “you may be thinking, ‘if X then Y.’ But that’s not true because A and B.” And I say, “yeah! I was thinking that!”
I can feel the tension ease away. I know that this writer understands where I’m coming from, and can guide me through the territory, rather than abandon me when the going gets tough.
Sometimes a smart writer will say, “a strong argument against this is A. That’s a good point, but I disagree because of B and C.” Or even, “for an opposing viewpoint, see Smith Monkeyboy, pg. 224.”
Lots of times those admissions and defenses wind up in the end notes, but that’s good enough for me. They exist, and I can find them. They tell me that this writer is being honest with me. I don’t have to wonder what he’s not telling me.
And obviously, I hate reading writers who are too stupid, lazy, or insecure to expose their own possible flaws and inconsistencies. The writers who would rather just not mention the obvious (or obscure) counterpoints to their arguments. Or those who don’t understand my ignorance enough to explain why I’m wrong to think he’s wrong.
Those are the books I end up throwing against a wall and I hope that the writer feels a twinge at the moment of impact.
The Bill of Rights
I’m reading, “The Bill of Rights,” by Akhil Reed Amar. He’s a smart writer. Riding the train to work today, I blew right past my stop, then a couple more, because I was deep in my brain, formulating an argument against him. Then, suddenly, he resolved the issue. [Which is good, because I probably would’ve ended up at the airport or something before noticing the world outside the window.]
But I’m still in the middle of a larger puzzle that he hasn’t resolved yet. I hope he’ll sort it out on the ride home today, but if not, I’ll have to assume that I’ve got smarts that this Yale law professor doesn’t have. Since we all know that’s not true, my whole universe could tumble around my trembling form. Pray for me.
For those who actually want to know the problem I’ve got, I’ll keep typing. For everyone else, see you in a week or so.
This gets a little complicated, but I think it’s interesting enough to try to get it on paper. Let me know if I’ve done a bad job making it clear.
The problem is in the 4th 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.”
To put the relevant part in clear language:
1. Feds can’t search people without good reason.
2. Feds can’t get a warrant to search people without probable cause (which is more than just a good reason).
To put those prohibitions into the positive:
1. Feds CAN search people, as long as they have a good reason.
2. To get a warrant, the Feds need to show probable cause (which is more than just a good reason).
As Amar points out, unless this amendment is extremely badly written, the Feds should be able to search people WITHOUT A WARRANT, as long as they have a good reason.
Whoa! That’s shocking, but it’s not the problem. We’re still in the setup for a bit.
In Amar’s opinion, the spirit and words of the amendment lead to something like this:
* The executive branch doesn’t need a warrant to search your home. But if you think the search was unreasonable, you can sue them. The judicial branch (along with a jury of your peers) will decide who’s right.
* To protect themselves from getting sued, the executive branch can secretly (and without a jury) go to the judicial branch to get a warrant BEFORE they search your place. But to get a warrant, they need to show probable cause, not just a good reason.
Weird, huh? We’re so used to the rule that cops need warrants to do practically anything. Imagine cops coming to your door to search for stuff without bothering to get a warrant. Ok, so you can sue. But how many of the poor and disenfranchised would consider going against government lawyers over something like that?
Still, the fact that it makes me uncomfortable isn’t enough to say that it’s not true. Amar’s whole point is that a large part of the Bill of Rights wasn’t about protecting the little guy. It was more about protecting the next set of thoughtful revolutionaries from a corrupt government. Those guys wouldn’t be afraid to sue.
So that’s not my problem.
My problem is, what about people who don’t know that they’ve been searched?
If Amar is right, then the government could search your place without ever mentioning it to the judicial branch. In that case, the only judicial oversight comes when the person being searched files a law suit.
So, if I were a cop, I’d make sure to search secretly (while you’re at work, for example). That way, even if it’s an unreasonable search, you won’t bring a lawsuit and I won’t have to show ANY cause.
If Amar is right, then the Founding Fathers never considered this possibility, which is pretty hard to believe. Those guys were on the ball. How could they not have imagined, and protected against, secret searches?
These days, it’s so much easier to search secretly. Obviously, wiretapping is a timely example. Email, bank statements, insurance claims, etc. Today, searching without notice or oversight would be easier than it was in 1789, but I bet it happened even then.
Funny thing is, I can’t figure out how Amar is wrong. But I just can’t believe that the authors of the amendment could have missed such an obvious thing. Hopefully I’ll get to the “you may think A, but it’s really B, and here’s why,” part of the book soon.