{"id":147,"date":"2006-12-29T09:51:30","date_gmt":"2006-12-29T14:51:30","guid":{"rendered":"http:\/\/weeklyrob.dreamhosters.com\/?p=147"},"modified":"2006-12-29T09:51:30","modified_gmt":"2006-12-29T14:51:30","slug":"law","status":"publish","type":"post","link":"https:\/\/weeklyrob.com\/?p=147","title":{"rendered":"Law"},"content":{"rendered":"

\n

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.<\/p>\n

The writer says, \u00e2\u20ac\u0153you may be thinking, \u00e2\u20ac\u02dcif X then Y.\u00e2\u20ac\u2122 But that\u00e2\u20ac\u2122s not true because A and B.\u00e2\u20ac\u009d And I say, \u00e2\u20ac\u0153yeah! I was thinking that!\u00e2\u20ac\u009d<\/p>\n

I can feel the tension ease away. I know that this writer understands where I\u00e2\u20ac\u2122m coming from, and can guide me through the territory, rather than abandon me when the going gets tough.<\/p>\n

Sometimes a smart writer will say, \u00e2\u20ac\u0153a strong argument against this is A. That\u00e2\u20ac\u2122s a good point, but I disagree because of B and C.\u00e2\u20ac\u009d Or even, \u00e2\u20ac\u0153for an opposing viewpoint, see Smith Monkeyboy, pg. 224.\u00e2\u20ac\u009d<\/p>\n

Lots of times those admissions and defenses wind up in the end notes, but that\u00e2\u20ac\u2122s good enough for me. They exist, and I can find them. They tell me that this writer is being honest with me. I don\u00e2\u20ac\u2122t have to wonder what he\u00e2\u20ac\u2122s not telling me.<\/p>\n

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\u00e2\u20ac\u2122t understand my ignorance enough to explain why I\u00e2\u20ac\u2122m wrong to think he\u00e2\u20ac\u2122s wrong.<\/p>\n

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.<\/p>\n

The Bill of Rights<\/p>\n

I\u00e2\u20ac\u2122m reading, \u00e2\u20ac\u0153<\/span>The Bill of Rights<\/a>,\u00e2\u20ac\u009d by Akhil Reed Amar. He\u00e2\u20ac\u2122s 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\u00e2\u20ac\u2122ve ended up at the airport or something before noticing the world outside the window.]<\/span><\/p>\n

But I\u00e2\u20ac\u2122m still in the middle of a larger puzzle that he hasn\u00e2\u20ac\u2122t resolved yet. I hope he\u00e2\u20ac\u2122ll sort it out on the ride home today, but if not, I\u00e2\u20ac\u2122ll have to assume that I\u00e2\u20ac\u2122ve got smarts that this Yale law professor doesn\u00e2\u20ac\u2122t have. Since we all know that\u00e2\u20ac\u2122s not true, my whole universe could tumble around my trembling form. Pray for me.<\/p>\n

For those who actually want to know the problem I\u00e2\u20ac\u2122ve got, I\u00e2\u20ac\u2122ll keep typing. For everyone else, see you in a week or so.<\/p>\n

The Setup<\/p>\n

This gets a little complicated, but I think it\u00e2\u20ac\u2122s interesting enough to try to get it on paper. Let me know if I\u00e2\u20ac\u2122ve done a bad job making it clear.<\/p>\n

The problem is in the 4th Amendment:<\/p>\n

\u00e2\u20ac\u0153The 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.\u00e2\u20ac\u009d<\/p>\n

To put the relevant part in clear language:<\/p>\n

1. Feds can\u00e2\u20ac\u2122t search people without good reason.<\/p>\n

2. Feds can\u00e2\u20ac\u2122t get a warrant to search people without probable cause (which is more than just a good reason).<\/p>\n

To put those prohibitions into the positive:<\/p>\n

1. Feds CAN search people, as long as they have a good reason.<\/p>\n

2. To get a warrant, the Feds need to show probable cause (which is more than just a good reason).<\/p>\n

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.<\/p>\n

Whoa! That\u00e2\u20ac\u2122s shocking, but it\u00e2\u20ac\u2122s not the problem. We\u00e2\u20ac\u2122re still in the setup for a bit.<\/p>\n

In Amar\u00e2\u20ac\u2122s opinion, the spirit and words of the amendment lead to something like this:<\/p>\n

* The executive branch doesn\u00e2\u20ac\u2122t 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\u00e2\u20ac\u2122s right.<\/p>\n

* 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.<\/p>\n

Weird, huh? We\u00e2\u20ac\u2122re 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?<\/p>\n

Still, the fact that it makes me uncomfortable isn\u00e2\u20ac\u2122t enough to say that it\u00e2\u20ac\u2122s not true. Amar\u00e2\u20ac\u2122s whole point is that a large part of the Bill of Rights wasn\u00e2\u20ac\u2122t about protecting the little guy. It was more about protecting the next set of thoughtful revolutionaries from a corrupt government. Those guys wouldn\u00e2\u20ac\u2122t be afraid to sue.<\/p>\n

So that\u00e2\u20ac\u2122s not my problem.<\/p>\n

The Problem<\/p>\n

My problem is, what about people who don\u00e2\u20ac\u2122t know that they\u00e2\u20ac\u2122ve been searched?<\/p>\n

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.<\/p>\n

So, if I were a cop, I\u00e2\u20ac\u2122d make sure to search secretly (while you\u00e2\u20ac\u2122re at work, for example). That way, even if it\u00e2\u20ac\u2122s an unreasonable search, you won\u00e2\u20ac\u2122t bring a lawsuit and I won\u00e2\u20ac\u2122t have to show ANY cause.<\/p>\n

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?<\/p>\n

These days, it\u00e2\u20ac\u2122s 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.<\/p>\n

Funny thing is, I can\u00e2\u20ac\u2122t figure out how Amar is wrong. But I just can\u00e2\u20ac\u2122t believe that the authors of the amendment could have missed such an obvious thing. Hopefully I\u00e2\u20ac\u2122ll get to the \u00e2\u20ac\u0153you may think A, but it\u00e2\u20ac\u2122s really B, and here\u00e2\u20ac\u2122s why,\u00e2\u20ac\u009d part of the book soon.<\/p>\n","protected":false},"excerpt":{"rendered":"

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, \u00e2\u20ac\u0153you may be thinking, \u00e2\u20ac\u02dcif X then Y.\u00e2\u20ac\u2122 But that\u00e2\u20ac\u2122s not true because A and B.\u00e2\u20ac\u009d And I say, \u00e2\u20ac\u0153yeah! I was thinking that!\u00e2\u20ac\u009d I can […]<\/p>\n","protected":false},"author":2,"featured_media":0,"comment_status":"open","ping_status":"open","sticky":false,"template":"","format":"standard","meta":{"footnotes":""},"categories":[8,9],"tags":[],"class_list":["post-147","post","type-post","status-publish","format-standard","hentry","category-languagelit","category-law"],"_links":{"self":[{"href":"https:\/\/weeklyrob.com\/index.php?rest_route=\/wp\/v2\/posts\/147","targetHints":{"allow":["GET"]}}],"collection":[{"href":"https:\/\/weeklyrob.com\/index.php?rest_route=\/wp\/v2\/posts"}],"about":[{"href":"https:\/\/weeklyrob.com\/index.php?rest_route=\/wp\/v2\/types\/post"}],"author":[{"embeddable":true,"href":"https:\/\/weeklyrob.com\/index.php?rest_route=\/wp\/v2\/users\/2"}],"replies":[{"embeddable":true,"href":"https:\/\/weeklyrob.com\/index.php?rest_route=%2Fwp%2Fv2%2Fcomments&post=147"}],"version-history":[{"count":0,"href":"https:\/\/weeklyrob.com\/index.php?rest_route=\/wp\/v2\/posts\/147\/revisions"}],"wp:attachment":[{"href":"https:\/\/weeklyrob.com\/index.php?rest_route=%2Fwp%2Fv2%2Fmedia&parent=147"}],"wp:term":[{"taxonomy":"category","embeddable":true,"href":"https:\/\/weeklyrob.com\/index.php?rest_route=%2Fwp%2Fv2%2Fcategories&post=147"},{"taxonomy":"post_tag","embeddable":true,"href":"https:\/\/weeklyrob.com\/index.php?rest_route=%2Fwp%2Fv2%2Ftags&post=147"}],"curies":[{"name":"wp","href":"https:\/\/api.w.org\/{rel}","templated":true}]}}