The Government’s Addiction to ‘Secret Law’

Re:The Government’s Addiction to ‘Secret Law’ by tptacek on Wednesday October 19, 2016 @10:07AM (#12743868)

Regarding (3): There's no direct connection in the Constitution between the word "reasonable" and the word "warrant". "Warrant" is there to to limit the scope of the kinds of warrants that can be generated --- to prevent the "general warrant". "Reasonable" is there to make sure all searches, with or without a warrant, must survive a "reasonableness" test --- they must be related to some legitimate goal of government. If you attempt to design a legal system off the idea that all searches require warrants, you wind up in crazytown: for instance, the police, apprehending a mugger they have just observed holding up a couple at gunpoint, cannot reasonably search the criminal.

Regarding (5): The framers in fact rejected a previous iteration of the language of the 10th Amendment that would have reserved to the states any powers not expressly delegated in the Constitution. So we know that's not what they meant.

[ Parent | on HN ]

Re:The Government’s Addiction to ‘Secret Law’ by nickff on Wednesday October 19, 2016 @12:22PM (#12745166)

Saying that a search "must be related to some legitimate goal of government" is no limitation at all. I would agree that searches incident to arrest (for a cause other than refusing a voluntary search) are not required (by the constitution) to have a warrant, but am not sure what other un-warranted searches are reasonable. The kings of England would certainly say that preventing assassinations and insurrections was "some legitimate goal of government", but it seems the founders disagreed that kings should be ransacking the houses of their subjects.

Yes, I agree that the states were not delegated all powers not expressly delegated by the constitution, but "the people and the states" were. I have never heard a better explanation for the 10th amendment than to say that it was restating the enumerated powers doctrine (though I cannot recall where I first heard that explanation). If you have a better explanation of the 10th amendment, I am very interested to learn what it is.

[ Parent | on HN ]

Re:The Government’s Addiction to ‘Secret Law’ by tptacek on Wednesday October 19, 2016 @02:10PM (#12746191)

If you concede that a search incident to arrest requires no warrant, you've already conceded the argument that the Constitution doesn't require warrants for all searches (which is good, because it clearly doesn't), and we can move on.

Regarding your second point: the change was not "states" vs. "people and the states". The change was whether the rights referred to were solely those expressed in the Constitution, or something broader. Broader won. This is an argument you are going to need to take up with the authors of the Constitution, because they do not agree with you.

[ Parent | on HN ]