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!â€
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.â€
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.
The Setup
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.â€
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.
The 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.
1. I have trouble believing you’ve ever thrown a book against the wall.
2. So you’d have gone the whole way north to the end of the line, and then back south to the OTHER end of the line before you took your head out of the book?
3. You can do anything as long as you don’t get caught, even if you’re a cop. But if they search your house illegally, they’ll still need to explain how they obtained any evidence should they take you to trial. And at that point they’ll have to show that they didn’t violate the 4th, or the evidence will be thrown out. It’s called the “Exclusionary Rule.” Here’s a brief section of the Wikipedia article:
“One way courts enforce the rights guaranteed by the amendment is with the exclusionary rule. The rule provides that evidence obtained through a violation of the Fourth Amendment is generally not admissible by the prosecution during the defendant’s criminal trial.
Before the Court adopted the exclusionary rule in Weeks v. United States, 232 U.S. 383 (1914), all evidence, no matter how seized, could be admitted in court. The rule serves primarily to deter police officers from wilfully violating a suspect’s Fourth Amendment rights. The rationale being that if the police know evidence obtained in violation of the Fourth Amendment cannot be used to convict someone of a crime, they will not violate it. Some people argue that, without this rule, the Fourth Amendment would be essentially meaningless.”
http://en.wikipedia.org/wiki/Fourth_Amendment_to_the_United_States_Constitution
It then goes on to describe exceptions to the Exclusionary Rule.
The exclusionary rule is sort of outside the point I’m making, because I’m not talking about them using the evidence to prosecute you, but whether it’s legal for them to search without judicial oversight. Currently, the cops usually need to go to a judge before (or at least after) wiretapping your house, for example.
Amar is saying that a proper reading of the amendment would mean that the cops have no onus, before or after the search, to tell a judge and jury. Only if a case is brought against them do they have to explain anything. And I’m saying that if the person being searched doesn’t know about it, then how can they bring a case.
This is different from them getting away with it because they weren’t caught, as you say. This is them acting legally to search you without telling anyone. Obviously, Bush would love this interpretation.
If they want to use the evidence to prosecute you, then yeah, they have to explain their reasoning (though, again, not probable cause). But if they just want to listen, or search through your stuff, they’re good to go.
And I’m saying that this same secret kind of search must have happened in the 1700s as well. It would surprise me if the framers didn’t think of that and act to stop it. It seems to me that they should have made judicial oversight a part of the process, regardless of whether the searchee brings suit.
Also:
1. I have thrown books against the wall. But probably only paperbacks. I don’t think books are precious. If you want to keep them a long time, you have to treat them with the same care as anything you want to keep a long time. If you don’t, you don’t.
2. I was actually heading West, so I would have had to have changed trains, gotten on the wrong one, and not noticed until the end of the line. Unlikely, I admit.
I don’t buy Amar’s setup, so I don’t need to explain why he’s wrong. 🙂
I’m thinking that the writers probably assumed some inherent connection between “reasonable” and “warrant.” I’m no legal scholar, so feel free to tell me I’m just totally wrong on that point.
But the fact that they ban unreasonable searches, and then immediately and without further definition declare how to get a warrant, seems to me to demonstrate they connected the two. Perhaps there was some legal norm in place back then that was so obvious they neglected to make it explicit?
For example, what if the amendment said: you can’t have any cake if you haven’t had dinner, and all flibbits must describe in detail what dinner you’ve had.
Even without knowing the word “flibbit,” wouldn’t you assume you needed one to eat cake?
How is he defending his opinion that warrantless searches are okay?
Reasonable means one thing, but the amendment says that for a warrant you need more than reasonable. You need probable cause, with a sworn oath, and particular descriptions of what’s to be searched.
So it’s more like, “No eating cake without dinner, and if you want flibbets, you need to have eaten lunch and breakfast and a specific kind of dinner.”
He doesn’t say that warrantless searches are ok. He says that the commonlaw at the time, and that amendment itself, allow them. Warrantless searches can be challenged in court with a jury. A warrant is provided secretly by just a judge, so the standard has to be more robust.